Cerbone v. Conway

PETITIONER:Cerbone
RESPONDENT:Conway
LOCATION:Harrison County Court

DOCKET NO.: 84-1947
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT:

CITATION: 479 US 84 (1986)
ARGUED: Nov 05, 1986
DECIDED: Nov 17, 1986

ADVOCATES:
George Russel Miller – on behalf of the Respondent
Michael F. Close – on behalf of the Petitioners

Facts of the case

Question

Audio Transcription for Oral Argument – November 05, 1986 in Cerbone v. Conway

William H. Rehnquist:

We will hear arguments next in Cerbone against Conway.

Mr. Close, you may proceed whenever you’re ready.

Michael F. Close:

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

Good morning.

This is a dispute about a $400 check; actually, a $430 check.

Underlying it is a dispute about a car repair that was apparently not authorized, or at least allegedly not authorized.

It’s been going on now for almost ten years.

It’s been in seven or eight courts before it got to this Court.

Now, the plaintiff and respondent admits in the record that this case reached the Federal courts because it was not timely under State law.

They’d blown the State statute of limitations against the target defendant.

Harry A. Blackmun:

This is the kind of a case that gets the legal profession in ill repute, isn’t it?

Michael F. Close:

Well, Justice Oakes’ opinion below did take umbrage at I think some of my own actions in this case, and certainly my client’s actions.

Yes, my client is also substantively appalled that we are still litigating a $400 check.

It’s our contention, both literally and colloquially, that you can’t make a Federal case out of it.

It just never belonged in Federal court.

It was something that should have been resolved in small claims court or the justice court.

Harry A. Blackmun:

Exactly, and it should have been settled long ago.

Michael F. Close:

Yes, Your Honor.

Harry A. Blackmun:

How can people of this type afford the litigation to come up here on it?

Michael F. Close:

Well, the problem with that… the answer to that is not in the record.

The dispute begins in April of 1977 when the respondent’s car blew up on an interstate highway.

“Blew up” is their phrase.

It was taken under tow to Bano Buick, which is the co-petitioner here.

And although the parties disagree on what, they do agree that the car needed a totally new engine.

Now, the Conways’ version of the facts… and we have to accept that for purpose of today’s argument… is that they would go out and look in the local junkyards for a replacement engine, and that Bano Buick was not supposed to do anything until the Conways had found the engine that they wanted put back into the 1973 Opel, which was the faulty car.

Now, Mr. Conway, Jeff Conway, went out and found engines, looked… scoured the area.

And apparently, when he found the engine that he said should be put into the car, he called up Bano Buick and said, hey, I’ve got the engine.

Well, Bano Buick then said, oh, glad you called.

We’re just about to start your car.

And we’d like you to come down and pick it up.

Michael F. Close:

Apparently, he says, what are you talking about?

I haven’t authorized it.

Well, anyway, he and Mrs. Conway come down.

They get to the… they get to the car dealership, and they see in the car what they say… and we have to accept this as true also for purposes of today… they saw a junk engine that he had seen in another Croton Falls junkyard, and he had turned that engine down because he didn’t think it was a good enough engine to put in the car.

So whatever argument they had, their version of the dispute is that… which they swear to… is that they were bullied and intimidated by Bano Buick.

Bano Buick was going to… if they wanted to put in a different engine, was going to charge them more money, and whatever.

Their phrase is that, in fear they wrote out the check for the amount and initiated their escape and left.

The next day the usual practice of Bano is to deposit their checks.

They deposited the disputed check, which is No. 154.

It’s dated the 10th of May, 1977.

Bano deposits the check.

It comes back: Insufficient funds.

They say they hold the check a couple of days, and they call in to see if there’s sufficient funds.

They redeposit the check.

This time it comes back: stop payment.

Now, at this point the parties disagree as to who exactly said what.

The Banos claim they made a reasonable offer to settle with the Conways, to say, we’ll give you credit for the old engine, but we’ll charge you for the work.

The Conways dispute that.

Whatever it was, they couldn’t reach a settlement then of this dispute, as to whether the check would be honored, or what Banos would do on it.

And with negotiations at an apparent impasse, apparently the Banos went to my client, who is the village justice and also a local lawyer, and they brought the check to him.

And such advice which is third-hand in the record, as he said to us, look, the first… the bounced check is a criminal whatever, and the subsequent stop payment has got nothing to do with it, because it’s after the check.

I would have thought that advice was correct under State law at the time that he gave it anyway.

Thurgood Marshall:

How soon are you going to the point in this case?

Michael F. Close:

Excuse me, Your Honor?

Thurgood Marshall:

How soon are you going to get to the Constitutional point about a check that bounced?

Michael F. Close:

Well, I think… our point is that there is no Constitutional claim at all.

Her complaint, as we see it, because the false arrest claim is out of the case.

It’s barred by the statute of limitations.

Sandra Day O’Connor:

On that point, the respondent tells us that under New York law the respondent’s arrest is part of her malicious prosecution claim.

Michael F. Close:

Your Honor, I–

Sandra Day O’Connor:

And under New York law, an arrest made without a warrant and lacking probable cause gives a cause of action for malicious prosecution in New York.

Is that right?

You concede that that’s true?

Michael F. Close:

–Well, no.

Malicious prosecution might require a little more than arrest.

But she has more than an arrest here.

She has an actual prosecution.

So she had the–

Sandra Day O’Connor:

Well, if you’d answer my question, apparently what the respondents tell us is that New York law would give a cause of action for malicious prosecution for the making of an arrest without a warrant and lacking in probable cause.

Michael F. Close:

–No, she’s wrong to the extent that she’s suggesting that she can recover damages for the false arrest as part of her malicious prosecution claim.

We… we… I cite in my reply brief all the cases she cites.

There is dicta to that effect.

None of the cases she’s relying on in fact deal with this problem of what happens if you can correct for malicious prosecution but not false arrest.

Sandra Day O’Connor:

Well, let’s suppose that they’re right, and that under New York law a false arrest claim is part of malicious prosecution.

Do the… are you suggesting that we then have to redefine what is malicious prosecution as a matter of Federal law, or what?

Michael F. Close:

Well, if she were correct that it’s not… that it’s not… then that leads to the result that the court below was wrong in dismissing the claims of arrest and imprisonment as time barred.

The cases she cites for that proposition don’t say that.

The reason is… it’s dicta, and the reason is, in almost every case, you have a false arrest and a malicious prosecution together.

You always sue for both.

In the cases where you have to distinguish recovery from one theory than the other, we have cited in our reply briefs, the courts have uniformly held what you can recover for under New York law… and we don’t concede New York law actually governs this… what you can recover for under New York law for false arrest is everything up to the arraignment.

And from the arraignment onwards is malicious prosecution.

Therefore, if New York law is controlling, New York law clearly is that she can only recover from the arraignment forward.

Sandra Day O’Connor:

Is New York law controlling?

Michael F. Close:

No, or the court below did not hold that.

They relied on Federal law under Singleton.

And they… they… the court below held that these questions of accrual and so forth were governed by Federal law.

They looked at Singleton, although Singleton then incorporates a State law anyway.

And the court below held that Singleton was controlling and dismissed it.

We’ve always regarded the false arrest and imprisonment claims as out of the case because the court below dismissed them as time barred.

And we don’t… they’re not here because she didn’t cross petition.

Michael F. Close:

With those claims out of the case, it’s much simpler to analyze.

The question is–

John Paul Stevens:

Well, may I just interrupt?

How can you say they’re out of the case when the Second Circuit said they were in the case?

Michael F. Close:

–Well, but the Second Circuit said they were out of the case, also.

John Paul Stevens:

Well, but only on the State law cause of action.

Under the 1983 cause, they… as I understand it… they say the complaint alleges seven hours of detention, great humiliation, ridicule and mental anguish and so forth.

And these allegations are quite sufficient to constitute a Constitutional deprivation of liberty action under 1983.

So they held for 1983 purposes they were part of the case.

Michael F. Close:

No, because… for statute of limitations purposes, if you look at the statute of limitations ruling, which is at 822, I believe–

Well–

Michael F. Close:

–they are ruling, as a matter of State law, if we’re just talking about State law, she’s way out of court on State law, Mr. Justice Stevens.

On State law, she has a one-year statute.

If we’re talking about State law, that’s governed by Section 215.3 of the CPLR, and both malicious prosecution and false arrest are one-year statute and she’s out.

John Paul Stevens:

–Well, I don’t understand the Second Circuit to be talking about State law there.

Michael F. Close:

Well, I’m sorry, then I don’t understand your question.

John Paul Stevens:

Well, I’m puzzled when you say that the seven hours of detention and so forth are out of the case–

Michael F. Close:

Yes, Your Honor.

John Paul Stevens:

–when the Second Circuit, as I read their opinion on page A4, says this is part of their… the basis for their determination that her liberty was affected by what happened.

Michael F. Close:

And I… that’s dictum, because it… that’s just dictum because it ignores what he just did at A22.

The only imaginable theory of recovery that is even possibly in the case is Section 1933… 83.

And under A22, they’ve dismissed, very plainly, Mrs. Conway’s civil rights claims based on arrest or false imprisonment are barred by the statute.

William H. Rehnquist:

But false arrest and malicious prosecution are not themselves Constitutional claims.

You could have a Constitutional claim, I would think, simply for wrongful deprivation of liberty, which is protected by the Fourteenth Amendment.

Michael F. Close:

Yes.

William H. Rehnquist:

And these people were detained for a certain period of time, weren’t they?

Michael F. Close:

But the detention is… he just held that to the extent that this is a 1983 claim based on detention, and that’s the argument in Singleton, that is time barred as a matter of 1983 law.

And that is exactly what the holding is at A22; that that part is… and he relies back on Singleton, which had, again, addressed this as a matter of 1983 law, what statute to apply it and when to apply it.

I can’t explain A4 except to say that they forgot what they did at A22, and the point about the seven hours of detention is dictum.

What he’s talking about is the great humiliation and ridicule and mental anguish.

William H. Rehnquist:

Well, I mean, the Second Circuit obviously ruled in favor of the respondents on some point, because it’s you who are here and not they.

Michael F. Close:

Yes, yes, Your Honor.

William H. Rehnquist:

What was the basis upon which you think the Second Circuit ruled in favor of the respondent?

Michael F. Close:

Because she alleged malicious prosecution.

That was timely under 1983.

And malicious prosecution, as such, I read them saying, is actionable under Section 1983.

William H. Rehnquist:

Do you agree with that?

Michael F. Close:

No, I don’t agree with that.

But I think that is the question that’s here.

William H. Rehnquist:

You think that was their reason?

Michael F. Close:

And actually, there’s a fair amount of circuit court authority which would support the idea that if you have malicious prosecution under common law, and you can satisfy 1983, that you therefore have a Section 1983 claim.

I read them as deciding that point in favor of the respondent.

I think that they are wrong, but that’s what they… that’s what they hold.

And they would hardly be the only circuit on that point.

William H. Rehnquist:

But here, of course, you don’t have merely what might be normal elements of malicious prosecution.

You have a substantial period of detention.

Michael F. Close:

Well, before… she was… they took her to the village court.

Village court is only at night.

And it starts at 6:30, so that people can do their jobs during the day, and then they go at night.

The judge was on trial.

And she was… until she was arraigned, she was at court.

But that’s all pre-arraignment.

And for the cases we cite in our reply brief if, if… you know, if New York law… assuming New York law governs on that point, it’s all… that point is time barred.

Sandra Day O’Connor:

Mr. Close, part and parcel of the conduct that underlies the malicious prosecution claim in this case is that a phony criminal charge was filed, and that the individual charged was required to appear and sit around the court for a long time waiting to enter a plea, and was required to go back I don’t know how many times… eight, nine, whatever it was… many times, in addition to the reputational injury.

So the sum total of what underlies the malicious prosecution here is a great many appearances that were alleged to be unlawfully imposed on this person, and improperly, because it was a false charge to begin with.

Do you think there’s any deprivation of liberty involved in that kind of a process?

Michael F. Close:

Well, assuming now we’re talking about everything post-arraignment, the answer is no, that is not the… that’s just another way of saying that I was a defendant in a frivolous suit, and I had to go to court eight or nine times, which is a 45 minute drive from where she lives.

Sandra Day O’Connor:

Well, this Court has held for example that being suspended from public school as a student for ten days or so is a deprivation of liberty.

And yet you say that being hauled in to the criminal court on a false charge and made to wait and appear and reappear is not; is that right?

Michael F. Close:

Yes, that is not… our first… the first two questions on which the petition is granted is that the right to be free of frivolous suits is not, as such, part of the liberty protected by the due process clause.

Sandra Day O’Connor:

Criminal case.

Michael F. Close:

Well, I don’t think… first of all, I don’t think it makes any difference… this is a criminal case, but I don’t think there’s a Constitutional difference between a frivolous criminal case and a frivolous civil case.

In either case you’re… we cite in our opening–

Sandra Day O’Connor:

But a defendant in a criminal case, though, has to appear.

Michael F. Close:

–Yes, Your Honor, that is true.

We relied on Gerstein v. Pugh, which indicated that in the absence of an allegation that you had a burden other than the burden to appear for trial… now, my answer might have been different if… if… first of all, if she’d been incarcerated; if she hadn’t been released on her own recognizance; if she… if there were some significant restraint other than the mere burden of appearing for trial, my answer might be different.

But based on Gerstein v. Pugh, we say the mere fact that you have to appear for trial is… is… does not really… does not of itself indicate a liberty interest within the meaning–

John Paul Stevens:

Mr. Close, may I just ask you again–

–What happens if you don’t appear?

Michael F. Close:

–Well, as the record shows, if you don’t appear, eventually they’ll send out a warrant letter?

Thurgood Marshall:

And where do you end up?

Michael F. Close:

Excuse me?

Thurgood Marshall:

And where do you end up?

In the jail.

Michael F. Close:

Well, if she continued to refuse the warrant, yes, she’d eventually be… she could actually be put in jail.

Thurgood Marshall:

So you don’t consider that important at all.

Michael F. Close:

Well, I don’t consider that different than any civil case.

0 xxx.

Michael F. Close:

Well, Your Honor, I don’t think that distinguishes this from the civil case that we cite in our brief.

And New York doesn’t even recognize a cause of action for bringing a frivolous civil case.

And there are just as equal burdens in defending a frivolous civil case as in defending a frivolous criminal case, and in the civil case, you don’t have any remedy at all.

You know, the exact same allegations… malicious, frivolous, baseless; you knew you should never sue me, you sued me anyway, you asked for millions of dollars… doesn’t state a claim for relief at all.

And we therefore claim that the mere allegation that you were subject to a baseless suit is in not itself–

John Paul Stevens:

But Mr. Close, let me just go back… d–

Michael F. Close:

–I’m sorry.

John Paul Stevens:

–to this question Justice O’Connor really raised with you before.

You say, just these mere allegations.

But as I understand it, the statute of limitations bars the separate tort for false arrest, and there’s no question about it.

But on the malicious prosecution, is it not correct that it was the same prosecution continuing from June of ’77 until September of ’79?

Michael F. Close:

Yes, Your Honor.

John Paul Stevens:

And now if the action for malicious prosecution is timely, would it not be a part of the cause of action to take into account all of the facts concerning that prosecution, including the detention?

Michael F. Close:

No.

John Paul Stevens:

Why is that not part of the malicious prosecution claim whether it’s a matter of Federal or State law?

Michael F. Close:

Because they… the… she’s claiming here as… that there’s a, you know, a false and fraudulent arrest–

John Paul Stevens:

It’s a part of the proceeding which she said was malicious.

Michael F. Close:

–Yes.

John Paul Stevens:

She spent seven hours in detention.

It was part of the proceeding.

That is the basis of a malicious prosecution case, was it not?

Michael F. Close:

Well, if that’s really true, then I… the court below erred in dismissing on the statute of limitations.

Then what did they dismiss when they dismissed?

John Paul Stevens:

The state law cause of action for false arrest.

Michael F. Close:

No, Justice Stevens, there never was–

John Paul Stevens:

Maybe they did err.

But they did keep alive the malicious prosecution portion of the 1983 claim.

Michael F. Close:

–That’s true.

John Paul Stevens:

And what is that makes you so sure that the only evidence that would be admissible in support of that claim is what happened after some intermediate point in the prosecution.

I don’t understand that.

Well, the Court of Appeals itself specifically recited the… this detention as part of the malicious prosecution.

Michael F. Close:

And they only could do that by overlooking their earlier holding.

Byron R. White:

That may be, but they did it.

Do you suppose… yes, and do you suppose that evidence of the detention is an element of damages under malicious prosecution?

Michael F. Close:

Well, the trouble with that–

Sandra Day O’Connor:

Don’t you suppose that damages can be collected for that as part of the–

Michael F. Close:

–The answer, relying on my reply brief at 16 and 17, is that, no, she is… we cite, in fact, a case under New York law where you can recover from malicious prosecution, but you can’t recover for false arrest.

That’s Miller v. City of New York.

And Miller v. City of New York answers that damage question.

And it says, 19… middle of page 19 in my brief… plaintiff must establish his damages resulted from malicious prosecution, and not from the false imprisonment.

Antonin Scalia:

–Mr. Close, refresh my recollection.

Section 1983 doesn’t refer to malicious prosecution, does it?

Michael F. Close:

As such.

Antonin Scalia:

It doesn’t refer to any State tort, as such, does it?

Michael F. Close:

Yes, Your Honor.

No, Your Honor, it does not.

Antonin Scalia:

It gives a cause of action for violation of someone’s Federal right to life, liberty, or property?

Michael F. Close:

Yes.

Antonin Scalia:

So there is no necessary correlation between your cause of action under Section… no reason whatever to believe that there’s any necessary correlation between your right of action under 1983, and whatever State cause of action you might have.

Michael F. Close:

I agree, but the court below did not.

Antonin Scalia:

So it’s really quite irrelevant how New York State chooses to define its cause of action for malicious prosecution, isn’t it?

Michael F. Close:

That’s true.

Antonin Scalia:

And we have to look at each element of what happened here to see whether each separate element… the arrest, the later filing of the criminal complaint… or the prior filing of the criminal complaint, the later proceedings, each separate element to see whether any one of them constituted a deprivation of life, liberty or property without due process.

Michael F. Close:

Yes, Your Honor.

Antonin Scalia:

And it doesn’t matter to us how New York chooses to define these things for tort purposes.

Michael F. Close:

For tort purposes, but necessarily for statute of limitations purposes.

Antonin Scalia:

Well, except to the extent… that also, except to the extent that we have to refer to a New York statute of limitations in absence of a Federal one.

Michael F. Close:

Well, Singleton went a little beyond that.

Singleton also held you look to State rules of accrual as well.

But they were consistent with what they… what they… what they deemed to be any Federal interest.

Antonin Scalia:

Yes, well I… it seems to me… you’re confusing me, anyway, and it doesn’t seem to me your helping your case by choosing to analyze this on the grounds on New York tort law.

Michael F. Close:

I’m not.

Antonin Scalia:

Which is not what this suit is about at all.

It’s about 1983.

Michael F. Close:

I agree.

And Singleton… I mean, our response on statute of limitations is that Singleton v. City of New York is a Federal law case, and the Second Circuit held that this was barred as a matter of Federal law.

So it’s not in the case.

And as to the malicious prosecution claim, we say it’s not a species of liberty protected by the due process clause at all.

So that’s timely under 1983, or the court below held it was timely.

That claim is just not a claim of Constitutional dimension.

And even if–

Byron R. White:

Well, what if there had never been… what if there had never been an allegation in this case of a false arrest?

Byron R. White:

Just malicious prosecution.

Michael F. Close:

–Yes, which is all that’s remaining.

I understand the court below would be holding she stated a claim for relief.

Byron R. White:

Yes, and it would have been wrong, you suppose, for the court to consider evidence of detention, as part of the malicious prosecution allegations?

Michael F. Close:

Well, Justice White, when you use the word “evidence” as opposed to “damages”, evidence may come in because it may be relevant to something.

She has to prove conspiracy.

The arrest might be proof of the conspiracy.

It’s not part of… she’s not recovering damages–

Byron R. White:

Suppose the allegation is that some person convinced a policeman or a judge to get out a warrant for somebody; we just want to get this person.

Let’s get him arrested and put him in jail, and these may be trumped up charges, but meanwhile… but we’ll get back at them.

Let’s just suppose it’s something as nasty as that, a malicious prosecution case.

Couldn’t a malicious prosecution case include a plan to keep somebody in jail?

Michael F. Close:

–Could it?

I mean, yes, in some sense, if she were kept in jail.

It doesn’t answer the statute of limitations problem.

Byron R. White:

Well, this person was kept in jail on a trumped up charge, before her allegation.

Michael F. Close:

Before her arraignment.

And arraignment separated the one tort from the other, for the purposes of recovering damages.

Antonin Scalia:

What do you mean by malicious… again, you’re answering a question as to what a malicious prosecution case would consist of.

What malicious prosecution case?

Under New York law?

Under New Jersey law?

Michael F. Close:

Well, the court below held New York law governs–

Antonin Scalia:

Are we talking about a malicious prosecution case here?

Michael F. Close:

–Yes, that’s–

We are?

Michael F. Close:

–that’s what the court below held.

I think it’s incorrect.

Antonin Scalia:

I thought we were talking about a 1983 claim.

Michael F. Close:

But the court below held the two claims are virtually identical.

Michael F. Close:

And in fact we quote that language in a subsequent case, where they say that the elements of the tort are identical.

We say, that’s wrong, because you have to show a Federal right.

And we don’t see any Federal, Constitutional claim at stake here.

And the mere claim that you were subjected to a baseless suit, which is the gravamen of malicious prosecution, is not Constitution.

And if–

Antonin Scalia:

Your position is that some of the elements which may go to making a malicious prosecution claim under New York law may constitute a violation of 1983; and others may not.

Michael F. Close:

–Well, to make a–

Antonin Scalia:

And you have to look at each one to see whether it violates 1983 or not.

Michael F. Close:

–If she had said, lock, they prosecuted me because of my race, she would have a 1983 claim, not because there’s a generalized guarantee against frivolous lawsuits, but because there is a guarantee against different treatment because of your race.

If she said, they prosecuted me maliciously because I was a Democrat or a Republican, or whatever, then there’d be a First Amendment claim.

If she said, you know, they prosecuted me because I’m protesting the war, or anything like that, there could be… I made that concession below, and the court thought it was dispositive.

I’m not asking you to hold that malicious prosecution could never be actionable as a matter of 1983; I am asking you to hold that the bare bones allegation that the suit is frivolous, okay, meritless, is not as such a species of liberty under the Fourteenth Amendment, because the Constitution does not extent to you a guarantee against frivolous suits as such.

And that’s all I see in this case for this plaintiff.

Alternatively, relying on Hudson and Parratt, we say you have an adequate State law remedy anyway, and her only problem is that it’s time barred.

And because you have an adequate remedy at State law, even if it is a due process violation, relying on say, Ponner v. Coughlin, Hudson, and Parratt, that… so what?

I don’t see the due process clause as being implicated?

xxx.

Michael F. Close:

Yes, Your Honor, it’s in the appendix to the petition.

In the Joint Appendix.

Michael F. Close:

No, it’s in the appendix to the petition for certiorari.

Byron R. White:

All right.

Michael F. Close:

If the Court has no other questions, I’ll reserve the balance of my time.

William H. Rehnquist:

Thank you, Mr. Close.

We’ll hear now from you, Mr. Miller.

George Russel Miller:

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

This is a classic 1983 case.

This is not a case about a $400 check.

This is a case about Lynn Conway’s right not to be abused, and to be persecuted by the State criminal justice system.

Here the petitioners intentionally misused the State’s coercive powers to destroy Lynn Conway’s Constitutional rights.

They conspired to use that system for their own self-serving ends in their attempt to extort money from her to pay for work that had been shoddily done, and as to which she probably did not owe a penny.

George Russel Miller:

In this conspiracy they ran roughshod over her Constitutional rights.

They had her arrested, knowing that she had committed no crime.

They hauled her into Justice Cerbone’s courtroom, where he dispensed his own brand of home town justice, to the benefit of his family and his clients.

She was stripped of her Sixth Amendment right to a speedy trial.

Antonin Scalia:

Let’s assume that the only thing I think that your client suffered which I would accent as a deprivation of life, liberty or property, without due process, was the detention in the jail facility.

George Russel Miller:

Yes, Your Honor.

Antonin Scalia:

Why isn’t that time barred?

George Russel Miller:

Your Honor, we have two separate causes of action under New York law.

And really we’re talking–

Antonin Scalia:

I don’t care about New York law.

I’m talking about 1983.

George Russel Miller:

–We’re talking 1983, but we’re using… as 1983 has done in the past, picking up the tort law as a model on which to model itself.

The–

Antonin Scalia:

But there’s quite a difference.

New York tort law does not require, for recover, a deprivation of life, liberty or property, as the Federal Constitution does.

So you can’t take every element of whatever tort chooses to define to be an element of a 1983 action.

George Russel Miller:

–No, you cannot, you’re correct on that, Your Honor.

And the malicious prosecution tort, and the notion behind a malicious prosecution, focuses on the bringing of an unfounded claim for a malicious purpose.

It does not focus on the arrest itself, although it would sweep up the arrest.

Antonin Scalia:

But I’m not talking about a malicious prosecution tort.

I’m talking under 1983 about the deprivation of life, liberty or property without due process of law.

I’m not talking about a malicious prosecution tort.

Now, just make believe that that’s the way I’m going to approach this case.

So I want to look and find some deprivation of liberty.

And the clear one that I find is keeping your client in custody before the arraignment.

George Russel Miller:

Yes, Your Honor.

This is part–

Antonin Scalia:

All right.

But that occurred a long time ago.

Now why isn’t that time barred–

George Russel Miller:

–That would not be time barred, because this was a continuing conspiracy, Your Honor.

You can look at the conduct that was initiated when they decided to commence the prosecution to have her arrested, up until the moment that the charges were finally dismissed.

Antonin Scalia:

–1983 does not give a cause of action for a conspiracy.

Read the text of 1983.

It does not give a cause of action for a conspiracy.

It gives a cause of action for the deprivation of the life, liberty or property.

1985 gives a cause of action for conspiracy.

George Russel Miller:

However, this court has recognized in, say, Adickes v. Kress, the notion of a conspiratorial element as stating a cause of action.

Antonin Scalia:

You can use the existence of a conspiracy to attribute State action to private actors; for that purpose, we’ve used conspiracy.

But have we ever used a conspiracy under 1983… has there ever been a cause of action given for conspiring under 1983?

1983 doesn’t speak of conspiring as a cause of action.

You know, there are Federal crimes of conspiracy.

It’s a separate crime in itself.

But it’s not an offense in itself under 1983, is it?

George Russel Miller:

I had not seen this Court hold specifically that it is.

I would not say that it would be barred.

I would say that the issue has not come before this Court.

This Court has not held that it is not… that a conspiracy is not a violation of 1983.

Indeed, when you look at the

“subjects or causes to be subjected. “

language of the statute itself, that would seem to imply that conspiratorial conduct would be incorporated in that.

However, I can think of no specific holding.

Antonin Scalia:

Is there a State tort of conspiracy, do you know, as a separate tort?

George Russel Miller:

I believe there is, Your Honor, but I’m not altogether certain.

Also, there are other substantive rights that were violated here, Your Honor.

There was the Sixth Amendment right to a speedy trial.

Two years and 82 days elapsed from the date of her arraignment… or… until the date when the charges were finally dismissed.

Now, that… part of that time is attributable to her own conduct in bringing the appeal.

However, that is not… that still does not change the fact that there were 180 days that had elapsed; and that 180 days is three times the period that is allowed by 3030 of the New York Criminal Procedure law.

Now, while that is not binding on this Court for the notion of speedy trial, it does suggest… give some sort of guideline as to what would be the speedy trial idea under New York law.

William H. Rehnquist:

Well, Mr. Miller, do you think that where a person is not convicted, that speedy trial analysis really adds much to the basic concept of deprivation of liberty?

George Russel Miller:

I believe it does, Your Honor.

Because the person who is sitting there with charges pending against them does go through great mental anguish.

They do not know what is happening.

If they are confronted with a court such as Justice Cerbone’s court, where they may… they have no idea what is going to happen.

They know that the judge is biased against them.

That becomes an awfully long time, Your Honor.

William H. Rehnquist:

Well, but surely you could recover for however long or however short it is if you can show simply a deprivation of liberty without due process of law.

George Russel Miller:

That is correct, Your Honor.

There is… there was the deprivation of liberty.

Technically, she was under arrest during this entire period.

While she had been released on her own recognizance, she was within… under the custody of the State.

William H. Rehnquist:

Your opponent relies heavily on the Hudson v. Palmer and Parratt v. Taylor for the proposition that New York law provided adequate remedies for this detention.

George Russel Miller:

Yes, Your Honor, they do rely on that.

But in the… I would direct your attention to Your Honors’ opinion in Parratt at page 535, where you wrote that in any 1983 action, initial inquiry must focus on whether the two essential elements of a 1983 cause of action are present, one, whether the conduct complained of was committed by a person acting under color of state law; clearly we have that here.

And two, whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitutional laws of the United States.

And here we have the substantive due process right of the unbiased form, plus we have the specific Constitutional guarantees against the illegal search and seizure, and against the right to a speedy trial.

William H. Rehnquist:

But Parratt went on to say, I think… and I think Hudson v. Palmer reiterated it… that in some situations you had to look at the State remedy that was provided for the petitioner’s claim to decide whether there had been any deprivation.

George Russel Miller:

Yes, you did, Your Honor.

But you were also, in those two cases, dealing with specific property interests.

These were State-created rights; not Federally-created rights.

And as Justice Stevens in his concurring opinion in Daniels set forth the procedural due process claim, it is not the deprivation of property that is actionable; it is the fact that the property is deprived without due process of law.

Without adequate redress, it becomes actionable under 1983.

So that in the Hudson and Parratt, you were dealing with property… State-created property interests.

And the State did provide redress, albeit it was post-deprivation rather than pre-deprivation.

Antonin Scalia:

Do you claim that there is some right, privilege or immunity at issue here other than the due process deprivation?

George Russel Miller:

Other than the speedy trial and the unbiased forum and the false… the bad arrest.

There is also a fourth… basically, a procedural due process claim.

And that was Justice Cerbone’s stripping away Lynn Conway’s right to a malicious prosecution action under State law.

Antonin Scalia:

But these are all under the category of due process?

George Russel Miller:

No, they are not, Your Honor.

The last one… well, the last one is a procedural due process, which I would distinguish from the substantive due process claimed.

John Paul Stevens:

Didn’t you lose your great humiliation, ridicule and mental anguish in your catalog?

George Russel Miller:

That, Your Honor, is the injury that she sustained.

I think we have to distinguish between the rights that are deprived, and the injury that is sustained as a result of that deprivation.

John Paul Stevens:

Do you contend that her reputation is any part of the liberty that is protected?

George Russel Miller:

I do not.

That was quite soundly decided in Paul v. Davis, Your Honor.

0 xxx.

George Russel Miller:

I think it was a million dollars, Your Honor.

Under New York–

Thurgood Marshall:

And a million punitive.

One and one makes two.

George Russel Miller:

–Yes, Your Honor.

Thurgood Marshall:

And so that is the damage she suffered?

George Russel Miller:

That is the allegation, Your Honor.

We still have the burden of proving it.

This is coming up on a summary judgment motion.

Thurgood Marshall:

If you can get to it.

George Russel Miller:

In addressing the reply brief that the petitioners have served, they make much of the fact that Lynn Conway had violated Section 190.05 of the New York Penal law.

In fact, at the time she wrote the check, she had sufficient money in the bank, in her account, to cover that check.

At page 28 of the Joint Appendix, you will see her bank statement, which shows that on the 10th and 11th of May, she had $441.37 in her account, or $10 more than this check was for.

If Bano Buick had gone down to the bank the following morning after she had picked up her car and cashed the check, they would have been paid in full.

The petitioners make much–

Thurgood Marshall:

Is that under New York law or Federal law?

George Russel Miller:

–That is under the New York law, Your Honor?

Thurgood Marshall:

Well, what are we doing with it?

George Russel Miller:

Well, that is… goes to the issue of–

Thurgood Marshall:

xxx rewrite the law of malicious prosecution of New York, aren’t you?

George Russel Miller:

–Your Honor, we are locking here at a 1983 claim.

George Russel Miller:

Now, the Second Circuit had adopted, under the adoption rule of Section 1988, had picked up the New York law of malicious prosecution as being… that the same elements that would state a claim for malicious prosecution would state a claim for 1983 violation.

I think that, in short, what it is doing is what this Court has done, is to model a 1983 claim on existing State law.

But this Court obviously is not bound by the State law.

The question that I was raising was whether, under the malicious prosecution notion, there was probable cause, or whether there had in fact been a criminal violation.

And in fact, she had not violated Section 190.05 of the New York law.

The petitioners make much of the adjournments and delays in this case.

However, it appears that Justice Cerbone’s clients, the Martabanos, who were conducting this private prosecution, did not show up on four of the occasions.

It’s very hard to object to that in those situations.

And it does not change the fact that there 180 days that elapsed from the date… she entered her plea on August 4th, 1977, to the time her attorney brought a motion to dismiss for failure to prosecute within a speedy time.

That was on February 1st, 1978.

Byron R. White:

Do you think there’s some difference between your ability to recover for the detention in jail for seven hours, and your ability to recover for pain and suffering or loss of reputation for purposes of 1983?

George Russel Miller:

I think under the Court… as I see it being framed under 1983, I think they all go into the same hopper, Your Honor.

I think there is, perhaps, harder damage, when you have the arrest.

And it’s very hard to quantify the damage for injury to reputation.

If you look at the… at the Paul case, for example–

Byron R. White:

But if there hadn’t been an illegal detention, you don’t think the Paul case would cause you trouble?

George Russel Miller:

–I think the Paul decision… there there was no attempt to deprive anybody of any State right… or of any rights.

That was a clearly negligent act by the police chief.

What had happened though, here, this was part of the conspiracy to get money out of my client.

It was an intentional act.

If, let’s say, in Paul, Davis had been… they had known that Davis was a communist sympathizer or whatever, and in order to get back at him, they’d included him… his mug shot in the list of active shoplifters, I think that would have been a very different case, Your Honor.

Byron R. White:

Did the Second Circuit deal with Paul, or not?

George Russel Miller:

It did not, Your Honor.

Byron R. White:

And did it deal at all with the availability of a State remedy?

George Russel Miller:

It did, sort of in passing, Your Honor, on page A4 of the Appendix, I believe.

It is not what I would call the most… it is not a terribly scholar discussion of that issue.

Byron R. White:

Well, what would you say if one of the grounds for dismissal was that there’s a perfectly adequate State remedy here, and there’s just no Constitutional violation as long as there is such a remedy?

George Russel Miller:

Your Honor, I would say that that would run squarely contrary to the holding in Monroe v. Pape.

Because Monroe had held that there is no sort of exhaustion requirement, or abstention doctrine that the Federal courts must observe.

Antonin Scalia:

Well, what about Parratt and Hudson?

George Russel Miller:

Parratt and Hudson, Your Honor, limit themselves by their own terms to procedural due process claims.

And that is where the right that is being vindicated is a State-created right.

The inquiry then becomes whether the right is a… whether there’s a deprivation of that State created property interest without due process of law.

It’s only when you have the absence of due process of law that the Federal interest becomes implicated.

That, I would submit, does not apply when you’re dealing with substantive Federal rights, either specific guarantees of the Constitution, or with substantive due process.

William H. Rehnquist:

Well, certainly Hudson involved a claim of intentional abuse of process.

George Russel Miller:

Yes, Your Honor, but there was no claim that this was an Eighth Amendment cruel and inhuman punishment type of violation.

There was no claim of any other Constitutional right being violated.

There was no claim… the court specifically considered whether there was a zone of privacy that had been invaded.

And the court concluded that there was no zone of privacy that was relevant in that particular case, or a zone of privacy where the prisoner had a reasonable expectation that his possessions would not be searched.

Byron R. White:

Neither of those involved some illegal imprisonment?

George Russel Miller:

No, they do not, Your Honor.

Byron R. White:

Is it your position that Parratt just doesn’t reach liberty interests?

George Russel Miller:

That Parratt, Your Honor, does not… yes, that is my position, Your Honor.

At least not a liberty interest that is secured by the Constitution.

In other words, if we’re dealing with the Constitutional right–

Antonin Scalia:

What’s the difference?

I thought the line you were drawing was whether it was a procedural due process claim.

And I can understand your trying to draw a line there.

But if it is a procedural due process claim, what difference does it make whether it’s life, liberty or property as the issue?

George Russel Miller:

–I don’t think it makes much of a difference, Your Honor, that’s what I was just saying.

It doesn’t?

George Russel Miller:

What I was saying is, if it’s a State created liberty interest that is not… does not have an analog under the Federal Constitutional rights, then the State would become liable only if it makes the deprivation without adequate redress.

Byron R. White:

That isn’t the case here?

George Russel Miller:

That is not the case here because there are specific Federal rights that have been violated, Your Honor.

Antonin Scalia:

Tell me the Federal rights again.

George Russel Miller:

The four rights that we’re alleging, first, is the speedy trial right, which is the Sixth Amendment with specific guarantee.

The arrest, which is a Fourth Amendment guarantee.

Then there is a substantive due process right, that is, the right to an impartial forum.

And then finally there is the right to have her cause of action untampered with.

George Russel Miller:

And Justice Cerbone went down… or had appended to the docket sheet, not on the merits, in an apparent attempt to destroy the cause of action under New York State law for malicious prosecution.

Sandra Day O’Connor:

I assume that the courts below didn’t address the Sixth Amendment claims at all.

They would be open.

They just weren’t considered, is that right?

George Russel Miller:

They were not addressed below, Your Honor.

Sandra Day O’Connor:

So we don’t have to consider that?

I mean, that’s separate and apart and not yet addressed.

What we have before us is what–

George Russel Miller:

Well, Your Honor, I think that claim–

Sandra Day O’Connor:

–the due process claim?

George Russel Miller:

–if this Court reverses the Second Circuit and requires a dismissal of the cause of action, the the Sixth Amendment claim, speedy trial claim, can never be raised.

The action would be time barred.

So I would say that it has to come up now, if ever.

And it was alleged in the complaint, Your Honor.

Antonin Scalia:

How many of these Federal rights would… that you just mentioned in answer to me a minute ago would be time barred if you couldn’t tack them on to the malicious prosecution?

George Russel Miller:

At present, all.

Antonin Scalia:

Would be time barred?

George Russel Miller:

Would be time barred, Your Honor.

Well, I take that back.

They were timely as of the time they were raised.

Now, they would be time barred, if this cause of action is dismissed.

Antonin Scalia:

Oh, no, that’s–

George Russel Miller:

The speedy trial would not have matured until such time as the cause of action… the criminal complaint was dismissed.

Because there would be no indication as to how long it had been before the case would have been dismissed until that… September 20th, 1979.

The interference with the malicious prosecution cause of action, that occurred on September 20th, 1979, at the end of the period.

It was the arrest that occurred at the beginning.

The petitioners make the argument that the substantive due process is not properly before this Court, and it was never considered by the Second Circuit.

It fact, it had been considered.

The Second Circuit did not feel that it had to rely upon that.

Now, I suspect there may have been some… that Judge Oakes’ treatment of the case was that he felt that seven hours of detention was sufficiently enough to remand the case for trial that he need not go exploring for other Constitutional rights.

George Russel Miller:

But as long as there is one Constitutional right, we submit that this case has to go to trial in the District Court.

The petitioners have tried to make an argument that there is a cutoff point at the moment of arraignment under New York law between the false arrest claim, which ceases from the moment of arraignment.

From this they seek to infer that there is the beginning of a malicious prosecution cause of action that starts at the moment of arraignment.

That is squarely belied under New York law.

Sheldon v. Carpenter, for example… and I quote from 4 New York 580… states that in an action for malicious prosecution, the plaintiff is entitled to recover damages, not only for his unlawful arrest and imprisonment and for the expense of his defense, but for the injury to his name and character by reason of the false accusation.

Now, this is at least a clear indication of New York’s intent on the malicious prosecution cause of action.

We submit that this Court is clearly not bound by New York State law in formulating the causes of action under 1983.

But 1983 should form a model.

It should indicate the conduct that is wrongful, for example, the conduct of conspiring, as it were, to do a number on Lynn Conway, to get money from her, to make her pay on a check for work that was not done.

Here, Lynn Conway suffered from the petitioner’s abuses of the criminal justice system.

They conspired to violate her Federal rights in a scheme to extort money.

They had her arrested.

She was handcuffed, forced into the police car, hauled to the village court of Mt.

Kisco some 45 minutes away.

She was held under confinement for seven hours.

She was arraigned at 1:30 in the morning, and released on her own recognizance.

Then she was hauled before Justice Cerbone’s courtroom, where, under the Mt.

Kisco quaint custom, the Martabanos, who were the complaining witnesses, also handled the private criminal prosecution.

Nor surprisingly, the Martabanos, who were Justice Cerbone’s cousins and clients, managed to prevail, under the Assistant District Attorney stepped in and said that they would not go forward with the case.

And that point, Justice Cerbone screamed out through the courtroom, you will continue to try this case… or prosecute this case.

You will try it, and you will get a conviction.

Lynn Conway was stripped of her right to a speedy trial.

Two years and 82 days elapsed from the date of her arrest, until the date that she was finally released.

Her cause of action for malicious prosecution had been stripped.

In short, the respondent submits that the petitioners, Alfred Martabano, Alfred v. Martabano, Bano Buick, and Vincent Cerbone, engaged in a classic violation of Section 1983.

They conspired to deprive Lynn Conway of rights, privileges, and immunities secured by the Constitution and laws of the United States.

Thank you.

William H. Rehnquist:

Thank you, Mr. Miller.

Mr. Close, do you have anything further?

You have four minutes remaining.

Michael F. Close:

Answering Mr. Justice Scalia’s question, there is no tort of conspiracy recognized by New York law.

They contend that Mrs. Conway had sufficient funds, and that if the check… if he had rushed down to deposit the check, it would have cleared.

The record doesn’t sustain that contention.

She had already drawn against the funds that the account shows as of 5/10/77.

So it would be true that the check would clear only if the check No. 154, which is at stake, was presented under the bank’s rules, before 153, 152.

As soon as any of the earlier written checks had cleared, she would be insufficient.

That, under the New York statute, is insufficient funds when she wrote it, because the statute requires that you have sufficient funds that you haven’t already drawn upon.

As far as the other theories of liability… Sixth Amendment and docket notation… they’re just not properly here, because they would lead to a very different judgment than the judgment we are appealing.

The holding below is that whatever is common law, malicious prosecution, under New York law, is necessarily a 1983 case.

John Paul Stevens:

Isn’t it correct that the judgment you’re appealing is an order that has the effect of denying a motion to dismiss?

Michael F. Close:

Yes.

John Paul Stevens:

So that the case is just ready to get started for trial?

Michael F. Close:

Yes.

John Paul Stevens:

So that’s all that’s at stake, is whether there’s enough here to go to trial.

Michael F. Close:

Yes, but the rationale of the decision below, in response to my argument that Paul v. Davis, Baker v. McCollan, and Gerstein v. Pugh, which said malicious prosecution is not a claim under 1983, the court below said, no, look, this is New York law.

It’s valid under New York law.

His theory of Sixth Amendment would lead to a very different kind of judgment, and so would his docket notation theory.

So they’re not arguments that would sustain the ruling below, and therefore, I don’t think that they’re properly presented.

And for the reasons we state in our brief, we don’t think substantive due process has anything to do with the case.

We don’t think that Mrs. Conway has anything in common with Mrs. Roe.

You know, she’s just not within… she’s not within the realm of privacy interests, which are protected by that doctrine.

And she is invoking the doctrine because she wants an additional Federal remedy to what’s already adequate under State law.

She’s not like Mrs. Roe who comes here because she has no remedy under State law at all.

So Mrs. Conway’s complaint can’t be considered under the substantive process doctrine.

Unless the Court has any other questions about the record, the petitioner will rest.

William H. Rehnquist:

Thank you, Mr. Close.

The case is submitted.