Conroy v. Aniskoff – Oral Argument – January 11, 1993

Media for Conroy v. Aniskoff

Audio Transcription for Opinion Announcement – March 31, 1993 in Conroy v. Aniskoff

del

William H. Rehnquist:

We’ll hear argument next in Number 91-1353, Thomas F. Conroy v. Walter Aniskoff.

The spectators are admonished to remain silent until you get out of the courtroom.

The Court remains in session.

Mr. Klonoff, you may proceed.

Robert H. Klonoff:

Mr. Chief Justice and may it please the Court:

Section 525 of The Soldiers’ and Sailors’ Civil Relief Act excludes a service member’s period of military service from any period provided by law for the redemption of real property forfeited for nonpayment of real estate taxes.

The issue here is whether a service member must show hardship in order to invoke section 525.

We submit that the courts below, in imposing such a requirement, violated this Court’s case law and statutory interpretation for three reasons.

First, section 525 by its plain language imposes no hardship requirement.

Second, several other sections of the statute do impose a hardship requirement, while other sections, like section 525, do not.

This confirms that Congress acted deliberately when it did not impose a hardship requirement under section 525.

Third, this Court has made clear that statutes providing benefits to service members should be liberally construed.

For these reasons, we submit that this Court should enforce the statute as written and decline respondent’s invitation to rewrite the statute on policy grounds.

The facts in this case are simple, and I will spend just a moment on them.

At the time of trial, Colonel Conroy had been on continuous active duty in the U.S. Army since 1966.

He purchased the property at issue in May 1973, and paid all real estate taxes between 1973 and 1983.

He did not pay his taxes in ’84 through ’86, having received no tax notices from the town.

The Town of Danforth seized his land under Maine law and sold it in two parcels to respondents Aniskoff and H. C. Haynes in December 1986.

Upon learning of the sale, Colonel Conroy acted promptly in asserting his rights.

When Aniskoff and Haynes refused to give up the land, Colonel Conroy brought quiet title actions based on section 525.

The trial court held that despite section 525’s clear language, a service member had to show hardship from military service, which Colonel Conroy did not do.

The Supreme Judicial Court of Maine affirmed the Superior Court by an equally divided vote and did not express any reasoning.

We submit that this case should be controlled by this Court’s decision last term in King v. St. Vincent’s Hospital.

At issue in King was a National Guard member who sought a 3-year leave of absence from his hospital employer to join the Active Guard Reserve program as a command sergeant major.

He claimed that under the plain language of the Veteran Reemployment Rights Act he was allowed to return to his job with the same seniority, pay, and vacation as if he had not left.

The hospital denied the leave request on the ground that the period requested was unreasonable.

Although the statutory language contained no limits for leave requests, the lower courts… both the Eleventh Circuit and the district court… imposed a reasonableness requirement because of their concern about the burdens placed on employers of allowing employees to return after long leaves of absences.

This Court unanimously reversed… Justice Thomas did not participate… because, really for the same reasons that I am urging here: 1) the language of the section at issue was clear, 2) other parts of the statute, by contrast, explicitly imposed time limits, and 3) the statute provided benefits to members of the armed services.

The Court acknowledged that the statute was harsh, but refused to rewrite the law and noted that that was Congress’ job.

Here, we have an identical situation.

Robert H. Klonoff:

The language of section 525 is absolutely clear, and there has been no claim as far as I know on any case that there is an ambiguity in section 525.

Under this Court’s case law, we submit that the clear language of the statute should be the end of the matter.

However, it is even clearer than just the language of section 525 alone, since a review of the statute indicates that several other sections, unlike section 525, impose a hardship requirement explicitly, and we cited numerous examples on page 12, footnotes 11 and 12, of our opening brief.

We have also cited a number of examples of other parts of the statute that, like section 525, contain no prejudice requirement, so it seems to me quite clear that the statute was very carefully drafted and that when Congress wanted to impose a hardship requirement, it did so explicitly, and we point for example, section 560, which is of particular interest, since right within the same section you’ve got juxtaposition of a hardship and no-hardship standard.

Antonin Scalia:

Mr. Klonoff, the statute really doesn’t say that any property sold in violation of the Federal prohibition is not effectively sold, does it?

Is that a matter of State law?

I mean, could Maine law say that if this statute is violated and we goof and make the sale within the 18-month period, a good faith purchaser nonetheless has title, and maybe you have a cause of action against Maine but not against the BFP?

Robert H. Klonoff:

I don’t think that the State could do that, they could override the statute.

There are a variety of causes of action–

Antonin Scalia:

Well, they’re not overriding the statute.

The statute doesn’t really say that the transfer shall be ineffective, does it?

Robert H. Klonoff:

–Well, it has that effect.

Antonin Scalia:

If you say so, but I mean, that’s what I’m asking.

Why does it have that effect?

It doesn’t say that it has that effect.

It just says, you know, that you have to give him more time.

Okay, I have, and you got me, I broke the law… so sue me.

I mean, maybe he has a cause of action against the State of Maine, if that’s what Maine says.

Robert H. Klonoff:

But the whole concept of a redemption is the right to actually… if title is passed, the right to take back title.

In Maine, the way the law is constructed is title doesn’t even pass until the end of the redemption period.

David H. Souter:

You’re saying that Maine does not have the authority to give title until that period is passed, and because it is tolled Maine therefore can never give even… cannot even give a good title subject to defeasance later.

Robert H. Klonoff:

Not inconsistent with the statute.

We read the statute as allowing the serviceman, if title is transferred and there’s a period of redemption, to take the title back.

I suppose what could be done, since it talks about any period of redemption provided by law, is, I suppose, to not have any redemption period in this situation.

David H. Souter:

No, but I just wanted to make sure that I understood what you were saying to Justice Scalia, and I thought the theory that you were espousing was that because the period of service is not included… cannot be included in computing the redemption period, that the redemption period never runs.

Because it never runs, Maine, or the town, whatever it is, never acquires the authority to give any title at all.

Isn’t that your theory?

Robert H. Klonoff:

Well, that’s right, but in some States the title actually will pass, subject to the redemption.

If there’s a redemption statute, the way it works is that the title would be returned.

David H. Souter:

But that’s not the way it works, on your view, in Maine, is it?

Robert H. Klonoff:

No, that’s right.

In Maine it doesn’t work that way.

So as we indicated, these sections and the juxtaposition in 560 makes clear that Congress knew how to pose a hardship requirement when it wanted to do so.

And finally, as I indicated, this Court has made clear in a number of cases that statutes of this sort must be liberally construed in favor of the serviceman.

The court below… the trial court… did not make a textual argument, but instead expressed concerns about the possible impact of purchasers of property if service members are allowed to come in years later to redeem their property, but as in King, we submit that any such concerns are for Congress and not for the court.

We think that in this case the lower court misunderstood its role, believing that if a statute was harsh, a court could ignore the plain language, but under this Court’s case law a court is almost never permitted to ignore the plain language on policy grounds, and certainly not for the reasons offered below.

This Court has made clear that the statute literally read must be patently absurd, with consequences so bizarre that Congress could not have intended them, and it’s been phrased in a number of different ways.

In the Crooks case from 1930, which has been cited in Griffin and TVA v. Hill, it was made clear that it’s not enough that it’s merely absurd, and that oftentimes laws have effects that weren’t contemplated, but it’s for Congress to decide the issue.

And this Court in a number of cases… Griffin, has said that harsh consequences are not enough, a situation where a seaman was entitled to receive over 300,000 dollars from an employer because of a 412 dollar withholding of wages.

The TVA v. Hill, which involved a multimillion dollar dam project which was stopped near completion, the Court said that the result was curious, but not enough to override… and numerous other cases that this Court… and this Court has made clear in Estate of Cowart that even if a statute could be characterized as stark or troubling, it is the duty of the court to enforce Congress’ language even if the court questions its wisdom.

Now, looking at section 525 and actually juxtaposing 525 with the situation in King, we would submit that there’s not even an absurdity, let alone a situation that’s so patently absurd that Congress could not have intended it.

In King, for example, it’s interesting to note that the 3-year period was not the end of the possibility in that situation.

There was a question asked at page 6 of the oral argument in that case, in the transcript, about whether or not the period could be renewed four times for, say, 12 years, and the answer that the Assistant to the Solicitor General gave was that theoretically that’s possible.

She didn’t know of a case, but theoretically it was possible, and the situation, then, you have in King, was somebody coming back 12 years and basically… and in King, for example, the individuals reflected in the Eleventh Circuit opinion was the manager of security could come in 12 years later and just walk in and demand his job back after somebody had been hired and so forth.

And so really, that is or could be a harsh and troubling situation, but it was not enough, and in fact the Court… although the Eleventh Circuit resolved the case as a matter of absurd consequences, this Court in King didn’t even address the absurd consequences at all, and just said that the matter was for Congress to consider.

John Paul Stevens:

May I ask you a question about this case just to get it fixed in my mind?

If you win, what it means is the period of redemption has not yet expired–

Robert H. Klonoff:

That’s right.

John Paul Stevens:

–And therefore your client has a right to redeem, and I gather your position is he will retain that right to redeem as long as he remains on active duty.

Robert H. Klonoff:

Well, he’s actually now retired, although that’s not reflected–

John Paul Stevens:

Well, then he just has the right to redeem as of now, so he could be compelled to exercise it within a fixed period of time, could he?

Robert H. Klonoff:

–That’s correct.

I think pursuant to the stipulation that we set out in our brief and that’s set out in the opinion, I don’t believe there’s any issue in terms of either side complying with State law, but formally in this situation you would make a tender.

John Paul Stevens:

He would have to make a tender of the back taxes plus interest, whatever the statute provides for redemption.

Robert H. Klonoff:

That’s exactly right.

John Paul Stevens:

If you had a person… you don’t, as I understand it… who was still on active duty and he’s perhaps going to serve another 15, 20 years, would he have the right under the statute, under your view, to say to the property owner, I haven’t decided what I want to do.

I just want to make it clear that the period of redemption hasn’t run yet, and I’ll make up my mind just before I get out of service.

Robert H. Klonoff:

He would have that right, and I think then the property owner would have civil causes of action available, and that would be true, by the way, to the taxing authority.

They could sue for damages, they could levy against–

John Paul Stevens:

They could sue for the back taxes.

Robert H. Klonoff:

–Exactly, levy taxes.

Let me just say, though, you’re positing, I think, a situation in which somebody would really have an incentive to want to stretch the period of redemption out, and that’s what the lower court was talking about, posing the situation of somebody waiting 30 years and simply not–

John Paul Stevens:

Well, I suppose the practical matter is he might well be willing to sell the property for a sum.

He might well be willing to sell his right in the redemption period for a cash sum.

These things often settle for a cash basis–

Robert H. Klonoff:

–That’s correct.

John Paul Stevens:

–And the longer the period, the more of a nuisance rights he has, the better bargaining position he is in in that negotiation.

Robert H. Klonoff:

Well, that’s correct, but let me provide, if I could, some perspective on that, because really what we’re talking about and the assumption, I think, of the so-called absurd consequences is the idea of a service member who has a valid and just debt just really out of reasons for dishonesty not paying off the debt and trying to abuse, if you will, the rights that are provided.

We don’t think as a practical matter this is going to arise.

There are a whole array of remedies available that the military has.

For example, Article 134 of the Uniform Code of Military Justice, the Army has regulations–

William H. Rehnquist:

What does Article 134 provide that’s relevant to this case?

Robert H. Klonoff:

–Well, what it provides is that an individual can be court-martialled for conduct of a nature that would bring discredit on the Armed Forces, and there are a number of cases, such as United States v. Sivinovich, the U.S. Army Court of Military Review of 1988, applying that precisely to the bad debt situation.

John Paul Stevens:

Does it bring discredit on the Armed Forces to exercise rights granted by Congress to an officer of the United States Army?

Robert H. Klonoff:

That’s what the Court has held, if there is a just debt.

Let me go further, though, than just the Article 134.

The U.S. Army has specific regulations at part 513 of 32 C.F.R., which says that if a soldier is not trying to resolve unpaid debts promptly, or complaints of the sort are received, punitive measures can be provided such as a denial of reenlistment, administrative separation from the service or other sorts of punishments.

William H. Rehnquist:

Those may well deal with individual cases, Mr. Klonoff, but if we’re now turning to the bad consequences of adopting the position you say the statute requires, I think perhaps from the point of view of the State or the town, it’s simply an inability to sell at a tax sale.

The titles simply are too uncertain.

Robert H. Klonoff:

Well, we would respectfully disagree that that’s the outcome.

Even if there were a prejudice requirement, you’d still have an issue about military service.

There are all kinds of reasons why there might later be a cloud on title, such as a fraudulent deed, ineffective notice, or failure to comply with the requirements of a tax sale.

Many States have requirements that… there’s a redemption period for a period of mental incompetence, and what is done in these tax sales, traditionally what was done in this case, is the execution of a quit claim deed, which means, in effect, that the purchase gets whatever, any title there is, and so the State could go forward, if it can’t ascertain the situation, and actually sell the property, and the risk–

William H. Rehnquist:

Yes, but a quit claim deed is a good deal different than… you can’t get title insurance on the basis of a quit claim deed.

Robert H. Klonoff:

–Well, that’s correct, and that’s why a person purchasing the property takes all kinds of risks, and this is something, along with many other things, that can be looked into.

I would note that, for example, the statute, section 581 has a certification procedure, and in Maine, for example, it’s very common for lawyers to write to the Armed Forces and actually get a determination whether someone is in military service.

In many of these situations, the people in question are there locally and so the issue can be resolved.

Anthony M. Kennedy:

Did I understand you to say that Maine can proceed in personam for the amount of the delinquent taxes against the property owner?

Robert H. Klonoff:

Yes, that is right.

That is a remedy that’s available.

Robert H. Klonoff:

It’s by statute, and it’s absolutely clear that they can pursue a civil remedy.

Now, of course, you’re going to have the array of other Soldiers’ and Sailors’ Act provisions kicking in, such as the default provisions and so on, but there are these alternative remedies.

I would like to, if I could, reserve the balance of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Klonoff.

Mr. Manning, we’ll hear from you.

John F. Manning:

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

I would like to begin by addressing Justice Scalia’s question about the bona fide purchaser.

The statute contains one provision which explicitly addresses when a bona fide purchaser of land can obtain relief when a transaction is affected by the Soldiers’ and Sailors’ Civil Relief Act.

That is provided in section 520 of the Appendix, which deals with default judgments.

If a default judgment is entered against a service member, and the service member can show within a specified period subsequent to his military service that he was prejudiced in his ability to defend the suit because of his military service, he can have that judgment vacated.

The provision explicitly provides that any property obtained by a bona fide purchaser for value pursuant to that judgment will be protected against the vacation of that default judgment by the service member.

Now, this illustrates one important point… two important points.

First, under section 525, there is no similar protection, so the right to redeem is tolled irrespective of any State law that would protect a bona fide purchaser.

Second, it shows that the statute is a very carefully drafted provision for the protection of service members.

Mr. Justice Brandeis stated, writing for the Court in–

Antonin Scalia:

The Federal Government might have wanted to protect by Federal law a BFP in the one situation, and decided not to protect him by Federal law in the other, but left it open to the State to protect him.

Isn’t that a conceivable explanation?

John F. Manning:

–It is conceivable, Justice Scalia, that that is the case, but it seems to me more likely, given the comprehensiveness of the statutory scheme and the extent to which Congress was careful in specifying which remedies would and would not be available and the desire of Congress to protect the service member from various State law judgments and liabilities during the period of service, that it’s much more likely that the force of section 525, which is broad and absolute in its terms, must be taken as preemptive of any State law right to vest the title in a bona fide purchaser.

Otherwise, a State could simply, by a variety of State rules, eliminate a protection that is broad, that is mandatory, and that is unqualified in its application.

Along the lines of the implications of the statute, I’d like to point out that as Justice Brandeis said in Ebert v. Poston, this statute was so carefully drafted that very little is left to conjecture, and given the act’s disparate inclusion and omission of a prejudice requirement in its various sections, the failure to include a prejudice requirement in section 525 must be understood as a deliberate policy choice.

Congress carefully considered when prejudice should, and more importantly should not, be a factor in awarding relief under the act, and it obviously decided that in section 525 it should not be awarded… it should not be a factor in the relief granted.

Now, to highlight a point that Mr. Klonoff made, I’d like to direct the Court’s attention to section 560 of the Appendix.

Section 560 specifically addresses–

William H. Rehnquist:

When you say, of the Appendix, are you referring to the Appendix to your brief?

John F. Manning:

–No, I apologize, Chief Justice Rehnquist, it’s the Appendix to title 50, where the act is codified.

Section 560 of the Appendix to title–

William H. Rehnquist:

Is that cited anywhere in your brief?

John F. Manning:

–It is cited.

It’s cited and discussed in the text, Your Honor.

The Appendix to title 50 provides relief from tax sales of certain kinds of property.

John F. Manning:

Now, the property at issue here is not among the classes of property that’s covered by that provision.

It relates to… in terms of real property, it relates to residential, business, professional, and agricultural property owned by the service member at the commencement of service and still owned at the time of the tax sale.

If a tax sale is to occur under that–

Antonin Scalia:

Owned and occupied, now.

John F. Manning:

–Owned and occupied by the service member or his dependents or employees.

If… before a tax sale can occur, a court order must be obtained for that type of property, and the service member or his dependents may get a stay of the tax sale during the period of military service unless the service member’s ability to pay or his dependents’ ability to pay the taxes is not materially affected by the military service.

So there is an explicit prejudice requirement contained in that provision which supplies relief from the tax sale itself.

In the very next provision of section 560, the act provides that the period of redemption, the right of redemption or the right to bring an action for redemption, shall extend throughout the period of the act and for 6 months thereafter.

It has no mention of material effect of military service.

It has no prejudice requirement in the text of the statute, and that provision, which dates back in its original form to the 1918 legislation, shows that Congress intentionally distinguished between the kinds of relief it would be providing for tax forfeitures, and when it got to the point of redemption, it decided to provide an absolute protection that extended without regard to prejudice throughout the period of military service.

Now, respondents don’t claim that the similarly worded language of section 525 is ambiguous.

What they claim is that the Court should not apply the statute as written because of the practical consequences of allowing a career service member to redeem his property throughout the period of military service without a showing of prejudice.

Now, apart from the fact that the practical consequences argument is foreclosed by this Court’s decision in King v. St. Vincent’s Hospital, the statute as written is far from absurd.

Respondents don’t claim that it’s absurd to redeem the tolling provision… to toll the redemption provision for service members in general.

What they claim is that it is absurd to do so without a particularized inquiry in each case into whether there has been prejudice.

Now, that is simply not absurd.

Congress, because the period of redemption is the last safety valve before property is lost irrevocably, it is perfectly rational for Congress to have decided that it would provide service members with the assurance that their property would not be lost forever during their period of military service.

Because of its self-executing nature, section 525 provides service members with the peace of mind that they will not have to rely on a court’s determination in hindsight that this or that tour of duty was or was not prejudicial to their ability to redeem their property, and so what it does is, in effect, it gives the service members an effective right to wait their period of military service before exercising their right of redemption, otherwise we doubt that many service members would take the risk that a court would, in hindsight, find that they had not been prejudiced by their tour of military duty.

Anthony M. Kennedy:

I take it the provision which allows for the collection of taxes on real property does not apply to him, though, because he was not occupying it for a dwelling.

John F. Manning:

That’s right.

It was vacant land that he was holding to have as a vacation spot.

Finally, I would like to point out that the uncertainties that respondents note, and the cloud on tax title that they assert as the absurdity in this case, would exist even if there were a prejudice requirement under the statute.

If a service member were entitled to toll his redemption period upon a showing of prejudice, it would be equally difficult, indeed, impossible to tell from the chain of title whether there was a service member in the chain of title, and whether the service member’s particular tour of duty was prejudicial to his ability to redeem.

Because the statute is clear, because the structure confirms the statute, and because of the canon requiring liberal construction of a statute for the benefit of service members, the judgment of the Supreme Judicial Court of Maine should be reversed.

If there are no further questions–

William H. Rehnquist:

Thank you, Mr. Manning.

Mr. Cuddy, we’ll hear from you.

Kevin M. Cuddy:

Mr. Chief Justice, may it please the Court:

At issue here today, as has been discussed, is the statutory foreclosure by the Town of Danforth on 170 acres of open land in Maine for unpaid taxes, and the subsequent sale of these lots to respondents Aniskoff and Haynes.

As has been stated, the former owner, Mr. Conroy, was in the military service at all pertinent times here, and he had residences in South Portland, Maine, and also in Wisconsin.

Kevin M. Cuddy:

The petitioner here contends that the status… the uniformed status that he enjoyed as a serviceman shields him from his responsibilities to pay taxes because of section 525.

Byron R. White:

In a timely fashion.

Kevin M. Cuddy:

In a timely fashion, Your Honor, yes.

Thank you.

We contend that he uses that status as a sword, really, to unfairly inhibit the Town of Danforth from collecting its tax revenue and to unreasonably deprive good faith purchasers of title in the real estate.

We… I think counsel collectively has done the Court a disservice, apparently, because we have not included for you section 560, as far as I am concerned, in any readily available form so that you can look at it right now, because I agree with these gentlemen, section 560 is important.

Not having any expertise in this when this case was brought to me, I looked at 560, because it’s the particular section that seems to apply here, and I read it through, and I checked to see, did this fit within the area of someone who owned real property that was occupied for dwelling purposes or professional purposes or business or agriculture?

No.

It’s open land.

It doesn’t apply.

But as these gentlemen called it to my attention, I looked at that subsection (2).

That subsection (2) of section 560 indicates that the court must be asked to approve a tax sale if a tax sale takes place under 560 when the court feels that the military service did not materially affect the ability of the military person to pay tax.

The court will approve the sale if it feels that the military person’s ability to pay tax was not materially affected by his military service.

William H. Rehnquist:

Did you set forth section 560 in your brief, Mr. Cuddy?

Kevin M. Cuddy:

I make reference to it, Your Honor.

None of us, unfortunately, have reprinted the statute in its entirety in any of our briefs or any of our appendices.

William H. Rehnquist:

I would suggest to each of you that if you plan to do that in the future you should not… you should very definitely set forth the statute in your brief.

Kevin M. Cuddy:

I fully appreciate that, Your Honor, and I apologize on my behalf–

Byron R. White:

So what’s your conclusion on what you’ve just said?

Kevin M. Cuddy:

–My conclusion, Your Honor, moving forward from that point, is that this Court in the LeMaistre case back in 1948, which in the last 46 years is the only case which dealt with this section… back in 1948, this Court said, with respect to section 560, 560 and 525 supplement each other, and 560 gives greater protection… greater protection than 525.

What the petitioner is suggesting is in fact because of his military status as a service person 525 gives him absolute protection.

This Court has already gone on record indicating in LeMaistre that it is 560, the particular section, that gives the preferred position, the greater protection, to the serviceman.

John Paul Stevens:

Help me with just one thing, though.

I don’t know whether it’s greater or less, but 560 deals with approval of the sale, whereas 525 deals with redemption.

Kevin M. Cuddy:

525 deals with redemption periods.

560–

John Paul Stevens:

After a sale has taken place.

Kevin M. Cuddy:

–Right.

560 deals with a sale if there is in fact a tax deficiency and the mechanics for doing it, and in 560 there’s a reference to the remedies from section 501 to section 590, which includes 525.

John Paul Stevens:

But he doesn’t challenge the… he doesn’t say there’s any defect in the sale.

Kevin M. Cuddy:

No.

No, he doesn’t say there’s any defect in the sale.

He says that 525 gives him a preferred position because of his status as a serviceman.

John Paul Stevens:

It gives him an unlimited period, a period… a time to redeem as long as he’s in service.

Kevin M. Cuddy:

Yes, Your Honor, that’s correct, and section 510 of the act… and this is troublesome to me, and maybe I’m missing this.

This was enacted in 1918, initially, during a time of war.

It’s reenacted, this statute, in 1940 during a time of war.

It’s interpreted in 1948, just after the war, by this Court in LeMaistre.

We’re now looking at it 48 years later, and it seems to me that the petitioner is saying we should look at it with blinders on, that we should not look at section 510, which is a statement of general purposes, that we should not look at the exigent circumstances referred to in section 510, that we should not look to the prejudice that section 510 suggests has to exist.

We shouldn’t look at any of those things.

It seems to me that the courts… the lower courts, the courts in Florida, the courts in New Mexico that we cited in our brief–

Byron R. White:

Well, what if this had happened back in 1942 or ’43?

You wouldn’t be making this argument, I don’t suppose.

Kevin M. Cuddy:

–You’re right.

Byron R. White:

So we should say, just because Congress has… that even though Congress has not changed the law, we should apply it differently.

Kevin M. Cuddy:

No.

I think what you have to say, Your Honor, is, in 1942 and ’43 and ’44 and ’45, there was a war.

Byron R. White:

Yes.

Kevin M. Cuddy:

That’s… that’s the significant fact.

In 1948, in its wisdom, Congress–

Byron R. White:

But that isn’t what the law says, in time of war.

Kevin M. Cuddy:

–It says, exigent circumstances, and one has to infer historically what those exigent circumstances were.

You’re right, that’s not what it says.

William H. Rehnquist:

Well, that’s just a recital at the beginning, isn’t it, about exigent circumstances?

It doesn’t say, the statute shall be enforced only so long as the exigent circumstances exist.

Kevin M. Cuddy:

No, it doesn’t say that.

Clearly, historically, back in 1940, they had a precedent in 1918 that it was only enforced as long as the exigent circumstances existed.

Here, in 1948, Congress elected to continue it without providing any sort of transition to answer or address any of these questions.

There is no transition for it.

Do you want us to do that?

Kevin M. Cuddy:

I want… I’m requesting respectfully that you interpret this statute in the context in which it exists.

Byron R. White:

So the protection that seemingly is given to the right to redeem just has expired by now.

Kevin M. Cuddy:

It has expired unless there is prejudice or hardship, and where does one find the prejudice and hardship requirement–

Byron R. White:

Well, where do you find the requirement for the hardship?

That’s the real problem.

Congress couldn’t specify it in this section.

Kevin M. Cuddy:

–I agree with that, your Honor.

You find that requirement in two places.

Number 1, you find it in the general provisions, section 510, and the second place that you find that is, you find that looking back at what this Court did in the LeMaistre v. Leffers case, looking at… I beg your pardon.

William H. Rehnquist:

Go ahead and finish your answer.

Kevin M. Cuddy:

Looking at the juxtaposition of section 560 and 525, looking at the fact that this Court indicated back in 1948, 560 is what provides the better protection for people, not 525, and from that, inferring… because 560 has a hardship requirement in it.

Byron R. White:

Well, on that basis you shouldn’t have answered that if this had happened in 1943 you wouldn’t be making this argument.

You would say well, gee whiz, that other section gives the most protection, and so–

Kevin M. Cuddy:

You wouldn’t have decided the case in LeMaistre in 1943, Your Honor, unfortunately, but the reason I answered your question that way was because what I understood you to ask me, that was the exigent circumstance issue, and the exigent circumstances in that context was war.

I did not mean to deal with the hardship.

John Paul Stevens:

–Let me just be sure I understand your position.

Assume we were in a wartime situation, would your reliance on 560… would you make the same argument based on 560?

Kevin M. Cuddy:

I would today make the same argument in terms of a hardship requirement having to be there.

John Paul Stevens:

No, I understand that today.

I’m saying, would you make the 560 argument in 1943, or during the Korean conflict, or during the Vietnam conflict?

Would you make that argument at those times?

Kevin M. Cuddy:

I would make the argument, but I wouldn’t have the support that subsequently–

John Paul Stevens:

You wouldn’t get our support for 510, but I don’t see… it seems to me they are totally separate arguments, that’s my problem with you.

The 510 argument, it seems to me, is one… we have special rules during wartime.

Your 560 argument is, we have a special… that’s the statute we should look at rather than 525.

What if we were really at all-out war right now, would you… I would think your 560 would still trump this right to redeem… on your argument.

Kevin M. Cuddy:

–In terms of hardship, that is my position, Your Honor, but I don’t want to leave Justice Stevens’ point, if I may.

The 510, in the last part of it… again, this is the general provisions… talks about that these provisions are made for the temporary suspension of legal proceedings in transactions which may prejudice the civil rights of persons in such services… prejudice the civil rights of such person in the services.

Not alone does 510 talk about exigent circumstances, but it has an overview of the concept of prejudice–

John Paul Stevens:

Well, it doesn’t say temporary suspension of such legal proceedings as will prejudice their rights, it just says a certain category that might prejudice their rights, and this might.

John Paul Stevens:

I mean, this is a category of temporary suspensions, and this category is a category which may prejudice the people who get the benefit of the statute.

Kevin M. Cuddy:

–Right, and–

John Paul Stevens:

But it doesn’t say he has to prove the prejudice.

Kevin M. Cuddy:

–If… in order to ask the question, I respectfully suggest… in order to say, might it prejudice, might it not prejudice it, in the litigation setting, you have to then say, how are we going to determine this, and somebody’s going to have to question–

John Paul Stevens:

But this section doesn’t define litigation rights.

It just explains why they enacted the statute, and the statute was to provide temporary suspensions in a category of cases where servicemen might be prejudiced.

Kevin M. Cuddy:

–Right.

John Paul Stevens:

And in this category, they might be.

But it doesn’t say they have to prove prejudice to win in the particular case.

Kevin M. Cuddy:

That’s… that’s–

John Paul Stevens:

That’s how you fit 510 with 525.

Kevin M. Cuddy:

–Okay.

That’s literally true, but I think the next logical step is, if one concedes that the issue of the possible existence, the may be of prejudice exists.

Either the question’s got to be asked affirmatively by the people seeking to get this quiet title action, or it has to be asked by the other side, but somebody’s got to ask the question.

John Paul Stevens:

Well, no, I don’t think so at all.

You could say that some people might be prejudiced by not being able to hire a lawyer in time to do this and that and therefore they can’t file a lawsuit right away, therefore we’ll give them 5 years to avoid the danger of that prejudice.

They get the 5 years whether they can prove prejudice or not.

Kevin M. Cuddy:

Okay.

In making the transition, then, to the redemption issue, whether or not one gets the benefit of redemption or doesn’t get the benefit of redemption, you have to make a finding of, is this going to provide a hardship, or in the alternative, is it sufficient that someone has the status of a military person?

What I’m suggesting to you is that section 510 and section 560 both… both have a implicit concept of hardship or prejudice.

Antonin Scalia:

Yes, but it seems to me the fact that it’s present in 560 demonstrates that it’s presence in 510 is irrelevant, because if it’s presence in 510 justifies reading it into 525, you wouldn’t have had to have it in 560.

Kevin M. Cuddy:

Not necessarily.

In 5–

Antonin Scalia:

Your argument is, we don’t need an explicit hardship requirement in 525 because it’s in 510, which is up at the beginning of the act, and that hardship requirement spills over into all of the act, but if that were true, there wouldn’t be any hardship requirement in 560.

You wouldn’t need it, because it would be supplied by 510.

But we have it in 560.

Kevin M. Cuddy:

–You have it in 560 because 560 subsection (2) specifically provides for a hearing for a determination of a question.

Antonin Scalia:

You have it because you have it.

Kevin M. Cuddy:

Yes.

Right.

Kevin M. Cuddy:

That’s true.

Moving on from where I just was in terms of the requirements of the statute, King v. St. Vincent’s Hospital, decided by this Court a year ago, has some pertinent language in it, but I would respectfully suggest that the issues in the Veterans’ Reemployment Rights Act and the issues before this Court in the Soldiers’ and Sailors’ Civil Relief Act are disparate, different matters.

It is true that they relate to servicemen, and it is true that they relate to interpretation.

After you get beyond that, I think that the petitioner’s comfort in citing this case is just misplaced.

This act that we’re dealing with here, the Soldiers’ and Sailors’ Civil Relief Act, is an act that is germane to itself in terms of its history, its enactment, then its reenactment.

It has… the Veteran’s Reemployment Rights Act has nothing to do, directly or indirectly, with the Soldiers’ & Sailors’ Civil Relief Act.

The references, however, in that act to interpreting the statute in the context of the full statute I think are very germane, and they apply here very strongly because we’re not talking about one section in isolation, again with judicial blinders.

We’re talking about one section in the context of an entire statute, and how it affects and interacts with the entire statute.

And again, I reference this Court’s decision in LeMaistre because this Court… although it didn’t anticipate where we are today, this Court back in 1948 did anticipate the tension and dynamic and interrelationship of those two sections and found them to be supportive of one another, not inconsistent or mutually exclusive.

I would also suggest, and I think I may have mentioned it but I want to be sure I mentioned it, the courts that deal with the issue of real estate taking, of seizing for taxes, they… and the cases we’ve cited in our brief, cases from Florida, cases from New Mexico… they support the proposition that the legitimacy of deeding property, the whole concept of the title, the chain of title in property, demands for that process that there be some showing of hardship or prejudice.

They talk about career servicemen and noncareer servicemen, and I think that that’s another way of saying prejudice, or hardship.

That’s really what they’re talking about, because implicitly if one is a career person, one has a regular income, one is under reasonably situations, unless one can demonstrate that there’s a hardship and I think that’s where the language career comes into play, and it really has its foundation in the concept of hardship.

Antonin Scalia:

Mr. Cuddy, can I ask you to address the point the Government makes about where the burden of this uncertainty should lie, and whether it’s so absurd to place the burden where they say it’s been placed.

It doesn’t seem to me absurd to say, as they claim the statute provides, in 560, the… which stays the whole sale.

You want to come in and stay the whole sale.

Kevin M. Cuddy:

Right.

Antonin Scalia:

Well, the statute says, if you want to stay the whole sale, you have to prove the hardship, but if the sale goes forward and all you want to do is have a later right to redeem, you don’t have to prove the hardship, because, says the Government… what does hardship mean?

I mean, this fellow’s in military service, he’s fighting a war somewhere, or giving out food somewhere, or doing something, and can’t get home, and his advisor tells him, don’t worry, if you can prove hardship, you can always redeem that property, and he asks him, well, what does proving hardship consist of?

He says, oh, it’s a very nice question.

Proving hardship.

Maybe you don’t have enough money because you’ve been shipped overseas and have… you know, have to make all… I wouldn’t want to have to gamble on the fact that I could prove hardship.

So why isn’t it perfectly sensible to say, you know, at least for purposes of the redemption provision, we’re going to give the serviceman a free ride… he doesn’t have to prove the hardship?

Kevin M. Cuddy:

Because if you were living in Danforth or for that matter by Pease Air Force Base or Loring Air Force Base in Maine, where a lot of people… military people have property, and for whatever reason they elect not to continue to pay taxes on their property, and the municipalities, which derive their revenue and support from that property, seize that property and sell it, and you are on their mailing list, and you happen to get a solicitation, come by some great property in Maine, 150 acres, or 30, or 40, or 50 acres, and you check the title, all you’re going to know is that there was a tax sale, and you hire a very competent lawyer, and he or she checks that tax sale and is satisfied that the requirements have been complied with in terms of effecting a tax sale, what you have done to the conveyancing is, you have raised a significant cloud because of this status.

What you have done to the Town of Danforth or the Town of Limestone or Caribou, Maine, is you have deflated the values of that property, because now, based upon… potentially, this Court’s interpretation… there is a great risk here.

Antonin Scalia:

Well, there… but there’s a risk anyway.

I mean, you’d still buy the property… well, you’re advising the person who wants to buy the property from the tax sale.

Kevin M. Cuddy:

Right.

Antonin Scalia:

What you’re saying is, you can give him the great comfort of saying, don’t worry… don’t worry, no soldier is going to be able to come back and snatch this out from under your nose unless he can prove hardship, right?

Even under your theory, you don’t have sure ownership.

Kevin M. Cuddy:

That’s true, and I don’t mean to retreat from your implicit question of, what is hardship?

Kevin M. Cuddy:

It is not a clearly defined term, there’s no question about that, but then a lot of what you deal with and what I deal with in lesser terms… due process–

Antonin Scalia:

No, I’m not talking about its certainty or uncertainty now–

Kevin M. Cuddy:

–Well–

Antonin Scalia:

–I’m talking about the fact that even under your theory there is no sure conveyancing in a tax sale.

You can never be sure that there isn’t a substantial likelihood that some Armed Forces member can redeem.

Kevin M. Cuddy:

–That’s true, but not simply because they come in and they have a uniform on.

If there is a hardship–

All right.

Kevin M. Cuddy:

–Then you have a risk.

All right.

Right.

Kevin M. Cuddy:

And I guess–

Antonin Scalia:

It’s a lesser risk, but it’s still a pretty substantial one, it seems.

Kevin M. Cuddy:

–That’s true, and I don’t mean to put rosy glasses on this.

A tax sale, by definition, is a risky business.

I’m just saying that we are eliminating a risk.

John Paul Stevens:

What is the interest rate the redeeming party has to pay on a judgment in Maine?

Kevin M. Cuddy:

I cannot tell you, Your Honor, right off the top of my head.

I just cannot tell you, and it… being our State and with our economy, it changes.

John Paul Stevens:

But the purchaser with the quit claim deed at least gets his money back plus interest–

Kevin M. Cuddy:

Yes.

John Paul Stevens:

–At whatever the rate might be.

Kevin M. Cuddy:

Yes, and I would… and I appreciate your mentioning that, because you bring one more point that I want to make sure I state to you, ladies and gentlemen.

This is a quiet title action, but one aspect of this case is also a trespass action.

Now, that is not before you, but I simply want to highlight that, because depending on what you do… and I’m hopeful that you simply affirm what happened below, but should you not, and should you decide to go in a different direction, there is another loose end to this case that the issue that we’re dealing with today will not finally dispose of.

I have concluded those points that I wish to make, and unless you have any further questions–

Anthony M. Kennedy:

Do you agree that Maine could sue the petitioner personally for the amount?

Kevin M. Cuddy:

–I believe the town could, Your Honor.

I’m not sure that the State could.

Anthony M. Kennedy:

That the town could.

Kevin M. Cuddy:

I believe the town could in a civil action.

It assumes a lot, but yes, I believe the town could.

William H. Rehnquist:

Thank you, Mr. Cuddy.

Kevin M. Cuddy:

Thank you.

William H. Rehnquist:

Mr. Klonoff, you have 3 minutes remaining.

Robert H. Klonoff:

Unless this Court has any questions, I would simply submit that the judgment of the Supreme Judicial Court of Maine should be reversed.

William H. Rehnquist:

Very well.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.