Ellis v. Dyson – Oral Argument – November 12, 1974

Media for Ellis v. Dyson

Audio Transcription for Opinion Announcement – May 19, 1975 in Ellis v. Dyson

del

Warren E. Burger:

We’ll hear arguments next in 73-130, Ellis against Dyson.

Mr. Neuborne you may proceed whenever you’re ready.

Burt Neuborne:

Mr. Chief Justice and may it please the Court.

My name is Bert Neuborne, I represent the petitioners herein Tom Ellis, a white college student at Eastville College in Dallas, Texas and Robert Love.

A black graduate student at the Southern Methodist University School of Music.

Petitioners were arrested at 2 a.m. on January 18, 1972 under a Dallas loitering ordinance while driving in Tom Ellis’ car in the suburb of Dallas.

At the time of their arrest, petitioners were attempting to determine which of several possible apartments that Mr. Love had looked at during the day would be most appropriate for Mr. Love to rent.

Apart from the mere presence in the automobile at 2 o’clock in the morning in Dallas, Texas, there were no signs of criminal activity.

And obviously petitioners’ arrest in the vague and overbroad Dallas ordinance upon which it was based raised serious constitutional questions under this Court’s decision in Papachristou versus Jacksonville.

Petitioners initially sought to raise the constitutional questions posed by the Dallas ordinance in the Texas state courts.

They first brought an application for discretionary writ of prohibition in the Texas Court of Criminal Appeals on February 14, 1972 and an application for discretionary writ was based on the facial unconstitutionality of the Dallas loitering ordinance.

Potter Stewart:

And the purpose of that application was to prevent there being tried at all or through it, was that it or –?

Burt Neuborne:

The purpose was to provide that the Texas courts with an opportunity to pass on the constitutional question.

Potter Stewart:

Yes, this is pretrial?

Burt Neuborne:

Pretrial, yes sir.

Potter Stewart:

And then what they asked for was that they not be tried at all because the statute or the ordinance was unconstitutional?

Burt Neuborne:

Was facially unconstitutional, yes sir.

Potter Stewart:

Incidentally, what was the form of the charge?

Burt Neuborne:

The form — the charge I believe was an information for loitering under the Dallas ordinance.

It is the description of the arrest and the officer’s description of the arrest are set forth in the appendix in the handwriting of the officers and is before the Court.

William J. Brennan, Jr.:

Mr. Neuborne, are the petitioners here still living in Dallas?

Burt Neuborne:

Your Honor, we have been unable to ascertain at the present time the whereabouts of the petitioners.

We have made preliminary attempts to trace them through their parents, and those preliminary attempts are thus far been unsuccessful although I must represent to the Court that the attempts have been preliminary.

We suggest to the Court that under any circumstances whatever resolution of the issues posed by this appeal that on remand that the District Court just as in Steffel versus Thompson of the passage of three years renders it imperative that additional facts be taken by the District Court to determine whether or not a current case or controversy exists for two reasons.

I frankly, have no information concerning the current enforcement pattern of the Dallas ordinance nor have I sufficient information to discuss with the Court the current status of the petitioners with respect to the ordinance.

Of course, their arrests and conviction records remain and that would, I take it be unaffected by the present whereabouts.

William J. Brennan, Jr.:

But if they are not living there, the case certainly is moot as to any possible future arrests?

Burt Neuborne:

I would think that is correct sir.

I would think on remand — under the disposition that we think the preferred disposition of this case would be a vacation of the orders below.

And a reconsideration in light of Steffel versus Thompson with a suggestion to the District Court that they undertake the same type of investigation that this Court suggested the Georgia District Court take in Steffel versus Thompson.

Burt Neuborne:

After presenting the discretionary writ of prohibition to the Texas Court of Criminal Appeals and having it denied on February 21st, petitioners then brought a motion — a trial, a pretrial motion in the Dallas Municipal Court, the Corporation Court of Dallas in which they attack the facial unconstitutionality of the statute.

Warren E. Burger:

From what you say, would it be entirely unreasonable to suggest that you are lawyers without clients at the moment?

Burt Neuborne:

I think not sir.

I think there is at least —

Warren E. Burger:

You don’t know where they are?

Burt Neuborne:

You don’t know where they live in Dallas and you don’t know whether they’re disposed as to perhaps this litigation?

Your Honor, the contact which the Southern Methodist University Law Clinic has had with the clients.

The last contact which was a year ago indicated that they wish to present to continue with the litigation especially as it affects their arrest and conviction records.

I suggest to the Court had been at least as the arrest and conviction records of these young people both of whom were college students.

And who would be severely adversely prejudiced in their later lives by a conviction record such as this but there is at least a live controversy and an obligation upon the attorneys to continue to try to clear the records of these individuals and in this situation.

When the motion was dismiss in the Dallas Municipal Court the motion attacking the facial unconstitutionality of the statute, petitioners’ counsel in the Municipal Court then faced a critical procedural decision.

And a procedural decision which, Your Honors, we suggest has shaped the subsequent course of this litigation.

Petitioners’ counsel at that point after this pretrial motion had been dismissed had two courses of action open to him.

First, he could have followed the more traditional course, which wouldn’t have been to press the unconstitutionality of the Dallas Ordinance through the Texas courts.

That course of action had three serious disabilities.

First, the Texas courts maintain a two-tier system of justice similar to the two-tier system of justice, which this Court sustained in Colten versus Kentucky two years ago.

So that the price oppressing the petitioners’ claims through the Texas Court System was the risk of a substantially increase sentence upon presentation in the trial de novo to a county court.

Indeed, it would have turned out that the potential risk would have been a 20-time — a 20-fold increase in the fine.

But secondly, and I think even more importantly in terms of a lawyer trying to do a good job for his client back in 1972, the procedural issue which the counsel for the petitioners faced in the Dallas court was he problem of issue preclusion.

If he continued to voluntarily present the constitutionality of the Dallas ordinance to the Texas state courts on a theory of issue preclusion, election of remedies, or res judicata, or some other type of theory.

He might have been deemed at that point where he did to continue to go to the merits and to reach the determination on the merits in the Dallas Municipal Court.

He might have been barred from litigating the issue further in the federal courts at some subsequent point and that is precisely, Your Honors, what happened to counsel in Thistlethwaite versus New York which is reported at 497 F.2d 339 where they followed the more traditional rule and went up through the state court system on a challenging park permit regulation on which there was only a $5 fine and for which of course habeas corpus would probably not lie in a subsequent proceeding and when they had exhausted all their state traditional remedies and sought to raised the constitutionality of the New York City park permit statute as applied to prospective distributions of leaflets in the park.

Potter Stewart:

Why it’s complied by the judgment of a Municipal Court?

Burt Neuborne:

Yes sir, I was coming.

The choice that the petitioner’s counsel made at that point was to exercise an element of the offering compromise, which Your Honor mentioned in Colten versus Kentucky as a significant aspect of the two-tier system.

What petitioner’s counsel did at that point was offer to plead nolo contendere which under Texas law has no collateral res judicata effect disposes of the —

Potter Stewart:

But why not when the — you only did that after the motion to dismiss?

Burt Neuborne:

Yes that was a pretrial motion to dismiss, Your honor but —

Potter Stewart:

And there was quite a general ruling on that?

Burt Neuborne:

There was a ruling on the motion to dismiss.

Potter Stewart:

By Texas Court?

Burt Neuborne:

Yes, sir but —

But the —

Byron R. White:

So why does it have to be —

Burt Neuborne:

Well, Your Honor, we suggested that the final judgment would not have attached until the Texas Court reached the full merits of the determination on the — as to guilt or innocence.

In other words, there was an initial preliminary motion to dismiss.

Once that motion to —

Byron R. White:

Mr. Neuborne, would you know whether under these circumstances the Texas Court would know the bars of this judgment in filing a civil suit a (Inaudible) suit in the Texas Court?

Burt Neuborne:

My understanding sir is that the entry of the nolo contendere plea under Texas law and I am not an expert on Texas law but my understanding of Texas law is that we would have not been barred.

As a matter of fact, that is precisely the reason for the offer of the nolo contendere.

Byron R. White:

I know by nolo contendere but barred by the courts decision on your motion dismiss in which you presented the constitutional issue and its final result.

Burt Neuborne:

Yes sir and the whole purpose of presenting that constitutional issue to Texas Court was to provide them with the option if they wish to reach the issues and if they chose not to reach the issues to at least permit the petitioners to reserve their federal rights for litigation at some future points.

And that was, as I understand it the counsel’s purpose in proceeding by nolo contendere under these circumstances.

We believe Your Honor under any circumstances that even without the nolo plea that there would have been no res judicata preclusion here and of course we’ll deal with that.

Byron R. White:

Why not Mr. Neuborne?

Burt Neuborne:

We think that there are five probable — possible reasons why res judicata should not apply.

First, the considerations of nolo but second the considerations which Your Honor adverted to in the dissent from certiorari in Mack.

And that’s when 1983 actions are concerned there is at least a question as to whether or not res judicata should be applied when its full vigor to such a determination especially we’re here it is being used as the functional equivalent in some part of the role that’s played by federal habeas corpus in granting ultimate federal review and issues of criminal jurisprudence raising constitutional questions.

Third, we believe the that existence of the Texas two-tier system which would have missed — which would have forced petitioners to risk a 20-fold increase in there sentence as the price of appealing from any adverse decision in the Texas Municipal Court cuts very heavily against precluding the petitioners from seeking a remedy to in federal court, while Texas under this Court’s decision in Colten versus Kentucky may condition access to the Texas courts undergoing a trial de novo with the possibility of an increase sentence.

We suggest it is a far crime from that to access — to condition access to the federal courts under the Civil Rights Act of 1871 on the same requirement that you risk a substantially more severe sentence as the price for exercising the choice of forum rights which Congress determined to give to Civil Rights Litigants.

Thurgood Marshall:

Do you have any word about nolo contendere in Texas, if you plead nolo contendere you’re then found guilty, are you not?

Burt Neuborne:

Yes sir, you are —

Thurgood Marshall:

And you then can be sent to prison, right?

Burt Neuborne:

Yes sir, the —

Thurgood Marshall:

But you say it doesn’t have any effect?

Burt Neuborne:

No, sir.

What I meant was that it doesn’t have any collateral effect.

It doesn’t have any res judicata effect on subsequent proceedings in Texas.

It is not an admission of guilt for example in a subsequent civil proceeding.

Thurgood Marshall:

Is it different from a guilty plea?

Burt Neuborne:

Yes sir, very different from the guilty plea.

Thurgood Marshall:

In that case?

Burt Neuborne:

A guilty plea —

Thurgood Marshall:

You mean at Texas case?

Burt Neuborne:

Well, for — Your Honor, I think Texas follows the traditional rule that would be followed in the federal court.

For example if there’s an antitrust —

Thurgood Marshall:

Do you think?

Burt Neuborne:

If there’s an antitrust prosec —

Thurgood Marshall:

Do you think?

Burt Neuborne:

That’s my understanding of the Texas law.

Thurgood Marshall:

Well, it’s showing you one there who lived —

Burt Neuborne:

Well, Your Honor if I could read you that Texas statute which my colleague has pointed out to you.

Thurgood Marshall:

That’s all I ask you.

Burt Neuborne:

I’m sorry I should have gotten to it much sooner.

The legal effect — this is Texas Code of Criminal Procedure Annotated Article 2702 subsection 6 in 1965.

The legal effect of such plead referring to a nolo contendere plea shall be the same as that of the plea of guilty.

But the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the Act upon which the criminal prosecution is based.

William H. Rehnquist:

Well that’s quite different all than saying that it doesn’t have any collateral effect in the traditional sense because you take the federal antitrust judgments and certainly the Texas statute sounds like it’s a counter part of them permit the use of a criminal judgment and to rather unusual way in a civil action.

If there’s been a guilty plea and it sounds to me like other saying is in Texas is that a nolo plea won’t have this broad in effect.

Burt Neuborne:

But Your Honor as I understood, I understood that and I think Your Honor’s suggestion that the Texas practice is the same as the federal antitrust practice is correct.

But under federal antitrust practice, the entrance of the nolo plea by a defendant cannot be used against him in a subsequent civil proceeding to determine that the underlying legal issues and that legal and the initial criminal proceeding were to be resolved adversely to him and —

William H. Rehnquist:

That certainly makes sense but it seems to me that falls far short of saying that he is not bound by the judgment entered in this case.

Burt Neuborne:

We want all — all petitioners.

Well, perhaps then, I should clarify what petitioners seek precisely in this case.

Petitioners are not attempting in this case collaterally attack the Texas judgment.

William H. Rehnquist:

But you’re asking that they expunge, aren’t you?

Burt Neuborne:

Well, Your Honor petitioners seek three causes of action and because the case below which disposed of under Becker versus Thompson, no Court below found it necessary to analyze the three causes of action separately but I suggest that the separate analysis of the cause of action is critical you make it in a proper resolution.

Petitioner’s first cause of action and their primary cause of action is a cause of action based on seeking a declaratory judgment identical to the Steffel declaratory judgment protecting them against the threat of the future prosecution.

Petitioner’s second course of action was a determination not that the conviction be voided but simply that Texas be restrained in some way from disseminating records of the conviction in the future.

In other words the fine, the punishment whatever Texas did to petitioners was inappropriate imposition of sentence under nolo contendere of plea.

William H. Rehnquist:

Well, what’s the federal basis for that second cause of action?

Burt Neuborne:

That as far as I know is a normal cause of action and one which the District Court never reached Your Honor because it felt that it could not even entertain the first cause of action.

I suggest on remand that these are questions if this Court were dispose to remand but these are questions which obviously must be grappled with —

Byron R. White:

But your cause of action again has a plea?

Burt Neuborne:

No, sir.

I say that there is — there are that we must determine whether it’s moot on remand.

It may well be on remand but it is more.

Byron R. White:

I thought you said that — and it’s not (Inaudible).

Burt Neuborne:

No, sir.

William H. Rehnquist:

What’s the law to suggest these?

Burt Neuborne:

No.

What I suggested was that under Steffel it would be appropriate on remand to the District Court to take fresh evidence of that fact but this case is now three years old Your Honor.

It was filed in March of —

Byron R. White:

But also suppose he appealed that you have trial de novo, you have judgment to contest, but in any way he was not found guilty?

And then you cited that he should go to federal court rather than appeal in Texas.

(Inaudible) Texas appellate system?

Burt Neuborne:

Yes, sir.

Byron R. White:

Couldn’t suppose directing it in three causes is open to them.

Burt Neuborne:

No, sir.

We don’t– we do not —

William H. Rehnquist:

Well, why wouldn’t you?

Burt Neuborne:

We don’t suggest Your Honor.

Byron R. White:

But why wouldn’t you?

Burt Neuborne:

Because of the absence of a two-tier problem in a direct appeal situation.

Byron R. White:

Well, but rather that’s affirm, but firmly what was barred was it res judicata or what?

Burt Neuborne:

Oh!

I see, I understand.

Probably res judicata or if not —

Byron R. White:

What about Younger versus Harris?

Burt Neuborne:

Well, it’s not res judicata Younger versus Harris, the notion that the criminal preceding continues on to the very end.

Byron R. White:

Under that party, let’s assume that in trying you got to assume.

The type of appeal had expired and so there was no criminal case pending, it would still say that Younger would be part in the sense that it could always have (Inaudible).

Burt Neuborne:

Your Honor, I would suggest that then the issue would turn on what the cause of action was.

If the cause of action were a collateral attack on the conviction itself, I think that Younger would bar, so if that the cause of action would prospect —

William J. Brennan, Jr.:

So either res judicata would enough to be barred?

Burt Neuborne:

In no circumstances but I think the critical distinction and the distinction which I’m trying to articulate is the difference between the cause of action which is retrospective in nature and looks backward to attempt to impeach the judgment itself and a judgment which is declaratory and prospective in nature under the Steffel rule and which —

William J. Brennan, Jr.:

That is very dysfunction argument in sometime?

Byron R. White:

Well it falls, it falls between two tools, I’m afraid I have not in my own mind Your Honor.

William J. Brennan, Jr.:

Well, given that the records you have (Inaudible)?

Byron R. White:

No, sir. I think it might be possible although it might be possible to postulate an argument that said that the conviction when made was proper and it having pleaded nolo, one cannot then you go back and attempt to directly impeach the conviction.

But that the conviction was based on unconstitutional statute which is subsequently been found to be unconstitutional and that would — it would be inappropriate to continue to punish the petitioners on a daily basis.

By the daily dissemination of the arrest and conviction records prospectively, in other words I think the expunction cause of action has some elements of a prospective application although I agree with the Court that there is at least as to the expunction aspects of the case.

Thurgood Marshall:

Well, what good will it do this petitions, assuming that if you win this case and assume it doesn’t get on the front page of every newspaper in this country how will they able to know about it?

William J. Brennan, Jr.:

But Your Honor, we will — first their arrest and conviction records will be expunged and in terms —

Thurgood Marshall:

Well, how will they know about it?

Burt Neuborne:

Well, but in terms of the ordinary and normal dissemination of the arrest and conviction records, which go on in everyday life at least, that will stop for the petitioners.

Thurgood Marshall:

But how they will know about it?

Burt Neuborne:

Your Honor, we will make every effort to notify them personally.

I —

Thurgood Marshall:

And if they’re alive you might find them.

Byron R. White:

Yes, sir.

Well, I — we will make every effort to find them and to notify them personally.

Your Honors, I don’t — Yes sir?

Lewis F. Powell, Jr.:

When did you all last hear from the petitioners?

Burt Neuborne:

Your Honor, as I understand it approximately a year ago.

Lewis F. Powell, Jr.:

Did you ask counsel hear from them or was there some indirect communication?

Burt Neuborne:

Your honor, I’m counsel in New York.

May I have a moment to check with my co-counsel on that point?

Lewis F. Powell, Jr.:

Have you ever heard from them?

Burt Neuborne:

If I have personally heard from them?

Lewis F. Powell, Jr.:

Yes.

Burt Neuborne:

No sir, I came into this case.

Lewis F. Powell, Jr.:

Has any counsel in this room ever heard from them?

Burt Neuborne:

Oh, yes, sir.

Lewis F. Powell, Jr.:

Which one?

Burt Neuborne:

Oh, did you just say in this room, Mr. Powell?

Lewis F. Powell, Jr.:

Yes.

Burt Neuborne:

Your Honor, counsel who has dealt personally with them is Professor Walter Steele.

Lewis F. Powell, Jr.:

Is he present?

Burt Neuborne:

At the Southern Methodist University.

No sir I’m afraid he is not.

Lewis F. Powell, Jr.:

Do you know when he last heard from them?

Approximately one year ago Mr. Kennedy told.

Was that in writing or how was the communication conveyed?

Burt Neuborne:

Professor Kennedy tells me the original authorization was in writing but he doesn’t know whether the last contact a year ago was in writing or not.

Thurgood Marshall:

Can you tell this Court what they want right now?

Yes, sir what they want right now.

How can you do it?

If you’ve never seen them and nobody else has seen them for over a year.

Burt Neuborne:

What they want right now, Your Honor —

Thurgood Marshall:

How could you say it?

Burt Neuborne:

Well based on the authorization which they gave to counsel, when the case was originally begun.

Thurgood Marshall:

But people change somehow?

Burt Neuborne:

Yes, sir.

It’s possible that they don’t care about their arrest and conviction records anymore but I suggest to the Court that it’s not like it.

Thurgood Marshall:

But how do we know we’ve got a case or controversy here?

Burt Neuborne:

I don’t know that you have.

Thurgood Marshall:

Oh, you don’t?

Burt Neuborne:

We suggested to the Court and I think appropriately so that the problem — a problem with this case is that it would be appropriate to go forward with the prospective causes of action under fed — under generalized notions of federalism but there was at the time it was presented to the District Court in 1972 a live case or controversy.

Unfortunately, the District Court believing itself bound by Becker versus Thompson failed to reach that case or controversy.

Burt Neuborne:

Three years have now passed since that occurrence.

I would be the last person to suggest to the Court that the Court should blindly proceed in the face of three — of the passage of three years time without adducing fresh facts and it was for that reason that we suggested to the Court that the preferred disposition of this case is a vacation or the decisions below in light of Steffel versus Thompson and a remand to the District Court for determination as to whether or not there’s anything live before the Court.

We seek no more than that in this proceeding.

We believe that if —

Thurgood Marshall:

But don’t we need a case or controversy to do that?

Burt Neuborne:

My understanding is that you can if you wish vacate a decision of the Court below on the grounds that it either has become moot or that the case or controversy no longer exist and remand to that court below for the taking of evidence.

Thurgood Marshall:

Are you suggesting mootness?

Burt Neuborne:

I’m suggesting that there is possibility of it, yes.

I mean Your Honors, I —

Thurgood Marshall:

What do you want us to do, write an essay?

Burt Neuborne:

Your Honor what if, what we suggest that you do is write a one line vacation of the District Court’s dismissal and a remand to the District Court to simply determine whether under the principles that this Court are laid out last year in Steffel versus Thompson, there’s —

Thurgood Marshall:

But I thought you said was moot?

Burt Neuborne:

Well, Your Honor mootness and lack of standing in the case like this seems to come in a full circle.

If the petitioners no longer have a live case or controversy, whether one calls it lack of standing or one calls it mootness, that is something which ought to be determined on remand in the District Court and we suggest the appropriateness of that as a disposition of this matter.

We do not suggest this case as an appropriate vehicle for major consideration of the issue.

Our primary point in our brief was a suggestion that since both lower courts are dispose of this case without an analysis, properly so because they found themselves barred by Becker versus Thompson from considering the difficult question in the case raises at the appropriate way to dispose of this case is vacate those decisions, remand to the District Court, see whether there is a live case or controversy and start all over again in the light of post Steffel jurisprudence.

This Court is being asked to rule on very difficult issues on a difficult record in which there has been no analysis by the courts below.

William J. Brennan, Jr.:

And what’s your answer to Younger?

Burt Neuborne:

I’m sorry sir?

William J. Brennan, Jr.:

Why doesn’t Younger rather than Steffel?

Burt Neuborne:

Younger doesn’t apply because the pending prosecution was over a full month before the proceeding began and the pending prosecution was over Your Honor with the consent of the State of Texas.

A normal plea need not be accepted under Texas law.

It was accepted by the judge as a speedy way to disposed of that particular proceeding and not to disclose of the underlying legal issues which that proceeding raised.

I suggest too Your Honor, that a nolo plea under the facts of this case is the functional equivalent in a criminal case of the England reserve in the civil case and that you are present or involuntarily in a state form.

You urge the state form, alright you have me in the state form, you can convict me under a nolo plea but I would like to reserve my right to litigate the underlying federal issues until some subsequent point.

William J. Brennan, Jr.:

Do you and the State agree that that is the effect of a nolo plea in Texas?

Burt Neuborne:

I have not discuss the matter with the State but from the statute that was the understanding of counsel when he offered the nolo plea, that is the understanding of counsel today when we present it to the Court.

William J. Brennan, Jr.:

But what — so what — it certainly didn’t bar you for appealing up through the state system.

Burt Neuborne:

No sir and on that —

William J. Brennan, Jr.:

And or it didn’t bar you from raising your federal claims further in the state system?

Burt Neuborne:

No sir except under those circumstances had we done so, I fear that we would have been —

William J. Brennan, Jr.:

I understand that but there was no bar.

Burt Neuborne:

Oh, no sir, we were — except for the bar that’s raised by the danger of a 20-fold increase in sentence in the two-tier system of justice which Texas maintains which Your Honor can be a substantial impediment to proceedings.

Petitioners were fined $10.00 and the potential maximum that they could have received on a trial de novo was $200.00 fund.

William H. Rehnquist:

But they could have re-litigated these issues in the higher court, could they not, the (Voice Overlap)

William J. Brennan, Jr.:

No question about it Your Honor.

No question about it.

Warren E. Burger:

But returning to the questions of Mr. Justice Marshall a few minutes ago, you got a petition for certiorari filed in this Court nearly a year and a half ago and during that year and a half the period, we don’t know whether there’s a case or controversy still here.

Burt Neuborne:

Your Honor, when —

Warren E. Burger:

Yet the whole machinery of the course has been involved in dealing with this case which we’re not sure and you can’t assure us is a case.

Burt Neuborne:

Your Honor, when we learned of the problems in locating the plaintiffs, that’s when we in our — for the first time in our brief on the merits suggested to the Court the appropriateness of a remand in this case and not a plenary consideration on the merits.

Warren E. Burger:

I suggest to you that it’s hardly the time of the case that ought to engaged the attention of this Court with all else it has to do to wait until the case has been here for a year and a half to find out whether there’s any case at all and that is calling you personally considering your job as counsel.

Burt Neuborne:

We — I take it, I take it.

No sir, I take it as a personal criticism, I apologize to the Court because I think you we’re right.

I should have notified you earlier.

Warren E. Burger:

I don’t intend it personally.

You’re performing your function as counsel that I’m speaking to the question of the role of this Court and how our time should be consumed and then defined.

Burt Neuborne:

Yes, sir.

Warren E. Burger:

So there’s no personal criticism.

Burt Neuborne:

I understand that and I agree with it completely.

William H. Rehnquist:

Well I suppose your suggestions of a Steffel remand with these following the Steffel procedure determining whether there is a live case or controversy represented or recognition on your part and suggested —

Burt Neuborne:

Well, yes sir.

That’s — I think that’s why we did but I think the Chief Justice is absolutely correct that we should have been more explicit as to why we were saying it.

We thought that it came across clearly enough in the papers but we should have been more explicit as to why we thought a Steffel remand was appropriate.

Thank you Your Honors.

Warren E. Burger:

Very well, Mr. Neuborne.

Mr. Conner.

Douglas H. Conner, III:

Mr. Chief Justice and may it please the Court.

I represent five-named respondents in this present litigation: Frank M. Dyson, the former Chief of Police for the City of Dallas and Alex Bickley, the present City Attorney of Dallas, Scott McDonald, former City Manager of City of Dallas, Hugh Jones, former clerk Municipal Court and Wes Wise, the present incumbent Mayor who soon is subject to going through an election and campaign for his re-election.

The facts in this case briefly the petitioners were arrested in January 8, 1972 at 2 a.m.

Douglas H. Conner, III:

I differ with counsel as to their version of the facts.

The facts are set out, are at least our version of the facts are set out in the arrest report that’s made a part of appendix of this file.

Warren E. Burger:

What page, do you have the page?

Douglas H. Conner, III:

I don’t, it’s the arrest report which refers to the petitioner Love.

It is indexed in the appendix.

I believed page 46, 47 and I think the next page also Your Honor.

The petitioners’ theory of the case is that they were looking for an apartment.

The arrest report indicates that it was in an area where new homes were being constructed, it is an area of North Dallas, a residential area that shortly subsequent to the arrest there was a report of burglaries in the area.

There had been burglaries at night in this particular area.

It was 2 a.m. on a week night, there was protective agency in the area and these were the only vehicles apparently or the only persons in that area shortly after the call.

It was upon this information that the police officers arrested the petitioners.

Potter Stewart:

What’s an alias ticket?

Douglas H. Conner, III:

Sir, one of the petitioners had a ticket which he did not dispose of.

He did not — it was alias.

He didn’t pay his fine nor did he — he did take a play on the case but then pay his fine.

Potter Stewart:

Both of them have?

Douglas H. Conner, III:

I believe it was one of them.

Potter Stewart:

Both 45 which has to do with Ellis and 46 which has to do with Mr. Love, each one is also arrested for loitering and alias tickets.

The suspect also found to have alias ticket.

What do you say an alias ticket is?

Each one has.

Douglas H. Conner, III:

An alias ticket is one that hasn’t been disposed of by payment of a fine.

Potter Stewart:

About what?

Douglas H. Conner, III:

By payment of a fine.

Potter Stewart:

What kind of — is one what that hasn’t been disposed of?

Douglas H. Conner, III:

It’s a ticket or citation that usually a Minor Misdemeanor Traffic Citation type matter which they either took a plea of guilty or they just never did come in to Municipal Court and dispose of.

In those instances, the procedures of the Dallas Police Department is when they do reach an individual who has an alias citation.

They bring him to the police station and may compose a ban to ensure their presence are at least the forfeiture of their ban.

The petitioners have assert in their brief and through that this case that they have use diligence in the state court.

We assert they have not use diligence in any manner.

Douglas H. Conner, III:

They plead guilty or no contest.

Statute said it’s one and the same.

They took the $10.00 fine and $2.50 court cost and they plead out and did nothing further in the state courts.

They present two questions in this action.

One is — having once been fined are they proper persons to bring declaratory judgment for the threatened future arrest.

And also they pray for an expungement.

In the respondent’s answer to the complaint, we assert it then and we asert now that the petitioners have failed to state a claim upon which relieve can be granted.

They did not assert any allegations of bad faith or harassment against these respondents.

They showed and indicated by the pleadings no irreparable harm or injury.

We’ve also asserted and still maintain they did not give any showing of diligence.

Their action with respect to the Texas Court of Criminal Appeals is putting the cart in front of the horse.

It was not timely, it’s not raisable, it’s not appropriate.

They had the right to a trial de novo in the County Court of Appeals.

They indicate that this was some more severe punishment than possibly one could have obtained in Municipal Court.

I disagree.

The fine in both courts, the maximum would have been $200.00.

The exposure in Municipal Court is no greater and it was in the County Court of Appeals.

A fine —

Potter Stewart:

(Voice Overlap) the Act?

I noticed that upon release pleas rendered on February 22, 1972, had they pursued a trial de novo that would have been a next step would it?

Douglas H. Conner, III:

Yes.

They have —

Potter Stewart:

About how much time did they have to do that?

Douglas H. Conner, III:

I believe, Your Honor, it’s 10 days.

Potter Stewart:

From February 22?

Douglas H. Conner, III:

Correct.

Potter Stewart:

And they filed this complaint in federal court on March 27 that’s after the 10th day.

Douglas H. Conner, III:

That’s correct.

Potter Stewart:

When you say you believe 10 days, is it or isn’t it 10 days?

Douglas H. Conner, III:

In my best knowledge, I’m almost positive yes, its 10 days.

Potter Stewart:

So they actually — they let the time for that appeal run out before they brought this federal court action?

Douglas H. Conner, III:

I’m sure of that, yes Your Honor.

Potter Stewart:

Mr. Conner is the ordinance still in effect in it’s the same form or has it been amended?

Douglas H. Conner, III:

Sir, it — for purposes of this case, yes it is in effect to the extent of number of arrests, I do not know but it still is being use and enforce.

Potter Stewart:

Has its constitutionality been tested in the state courts anywhere to your knowledge?

Douglas H. Conner, III:

No, it has not.

It is the respondents’ position that there is not a case or controversy here.

These individuals are not proper persons to test the constitutionality of the City’s Ordinance.

In light a post Steffel or any decision of this Court.

The Court should look at this case at the time of this review and not at the time that it was initiated.

This is the usual rule in federal cases.

It’s not our burden to prove a case or controversy.

We’ve been stating that they’re one a case or controversy that they were proper persons from the initiation of this suit and I’ll take this position is stronger now than ever before.

There is no case or controversy.

These are not proper persons to bring this action.

William J. Brennan, Jr.:

Mr. Conner I have one other question.

I think there is inference or implication somewhere that the prosecution in Dallas has a practice dismisses chargers under the loitering ordinance once someone has taken the necessary steps for a trial de novo.

Do you have any comment on that?

Douglas H. Conner, III:

Well we did and in this case —

William J. Brennan, Jr.:

I think they didn’t go for each other.

Douglas H. Conner, III:

They did plead out.

We didn’t dismiss it.

We’re ready for trial in this case.

The law student who wrote the affidavit I believe on page 40 to 41 of the appendix said, we dismiss maybe a quarter of the cases.

Yes there are dismissals Your Honor but I don’t think it’s a practice of customarily dismissing it when we see the eyes of an attorney, no sir.

This Court is said it’s a rare case where single prosecution constitutes a quantum of harm to justify federal intervention, I say this case sir has been no showing of harm to justify federal intervention.

We can’t look at the subjective feelings are only the subjective feelings of one of the petitioners said I have a chilling, feeling about my First Amendment rights being affected.

We got to look to the genuine threats if they are genuine and look at the objective findings in the record of the five respondents only two of them remained.

There is no showing as to the actions of the incumbent city officials.

There has been no harassment or no bad faith alleged.

Douglas H. Conner, III:

There’s been no pattern of arrest indicated which would apply to these persons that wouldn’t to apply anyone else.

The City of Dallas hadn’t been shown to go laughter and just prosecute hippies or college students or any ethnic social group or any racial minority or any distinct class of persons which the petitioners’ might belong.

The law student indicated that there are 40 to maybe 50 arrests a month under this ordinance.

I maintain it’s highly speculative and conjectural that these persons will again be arrested under this ordinance.

Just sheer mathematics if they were in Dallas and we don’t have a showing that they are and they probably are not, we are in municipality, the 8th largest city in the country with a population in 1970 of 844,000 and a county population in excess of a million three.

And the mere mathematic possibilities are very remote particularly for someone whose whereabouts can’t even be shown to be in Dallas.

The petitioners waived with the advice of counsel their right to poceed further.

This Court has look closely anytime someone takes a plea and waives his constitutional right to proceed.

I think this Court should particularly consider this in the light of the fact that this is a misdemeanor offense and look what posture it puts the respondents.

How can we proceed further when the petitioners plead out?

We cannot go further.

We are barred from going any further.

Yes we took a plea of guilty and what else can you expect of the respondents and look what posture the petitioner’s have placed us the respondents.

Potter Stewart:

The fact remains Mr. Conner does it not that the District Court here dismissed this complaint on the authority of Becker against Thompson?

Douglas H. Conner, III:

That’s correct.

Potter Stewart:

And Becker against Thompson was explicitly overruled by this Court and Steffel against Thompson.

So wouldn’t it logically follow that the thing to do is to remand this to the District Court to consider the case free of misapprehension that Becker against Thompson as the law?

Douglas H. Conner, III:

Your Honor I think, it was decided under Younger Doctrine primarily and the interpretation of the Fifth Circuit of Younger.

Steffel makes the most strongest argument as the case of controversy the genuineness of the threat of prosecution in Ellis decision also strongly support the position that in only cases of genuine threats of future prosecution should this Court or any other Court entertain federal intervention and I think that position is made more stronger by recent decision this Court than ever before.

I also —

Potter Stewart:

In other words, you’re saying that in order to remand we have to find the case or controversy here and now.

Douglas H. Conner, III:

Yes and not at the time the action was initiated by the time of review.

William H. Rehnquist:

But isn’t your position also from your remarks that there was not a sufficiet case or controversy at the time the District Court decided this?

Potter Stewart:

That’s exactly my position.

That even again under Steffel against Thompson?

This plaintiff didn’t show —

Douglas H. Conner, III:

A case or controversy or a genuine threat or future prosecutions sufficient to involve the intervention of [Voice overlap].

Potter Stewart:

That’s right.

Maybe a case or controversy but there wasn’t a sufficient allegation of a genuine threat or future arrest [Voice Overlap].

Douglas H. Conner, III:

Correct, and I think the Court should look in the pattern of practices of the respondents or the government officials involved and see whether or not there is a genuine threat and there are no allegations in the complaint and no allegations today or anytime.

William H. Rehnquist:

But I think it’s your one of your positions is that only aside from Steffel, Younger against Harris as far as this 1980 that this sued in the state court or in a federal court because they failed to follow their case up to the state system.

But Younger against Harris would — that there would have been a criminal case pending and it was still would have been pending if that appealed their case and presented their federal constitutional claims in the state courts.

Douglas H. Conner, III:

I would believe and I do urge that Younger v. Harris should be applicable or at least considered in this Court ruling.

The only thing that precludes Younger from being considered here is that there’s no pending prosecution and that was the payment of fund.

William J. Brennan, Jr.:

But there was.

There was one which could have been in a conviction which could have been appealed.

Douglas H. Conner, III:

Right but the petitioners by their own actions took the less stringent course and say they’re not bound by Younger because we pay the fine.

Now I think that’s rewarding so the last diligent from a stringent guidelines of Younger which I think are inappropriate and unfair to any litigant in federal court and particularly one who act past position to the respondents.

The court in Steffel spoke of res judicata difficulties and I think this is res judicata difficulties here there was a plea in Municipal Court and it was over.

This Court would be substituting itself for the County Court of Appeals to reverse or change over this decision and it would have a definite res judicata effect.

I think to remand this case would be a reward or award to the non-diligent to take them away from this stringent and rulings of Younger v. Harris.

I think the Court should see that there is no case or controversy and Ellis and Steffel both assert in this Court’s trend to look, to see of a genuineness of these threats a possible prosecution.

I like to reserve whatever remains moments I have for rebuttal.

Warren E. Burger:

You have a few minutes left Mr. Neuborne.

Burt Neuborne:

Thank you Mr. Chief Justice.

Merely on the case or controversy point the — as we have understood at the case or controversy perimeter which this Court had laid down both in Steffel and earlier on Boyle versus Landry flowed somewhat like this.

In Steffel, there was direct threat to a direct person and that was held to give sufficient standing.

In Long Island Vietnam Moratorium versus Cahn which this Court affirmed last year there was generalized threat by a prosecutor to the public at large and that was sufficient to give standing.

In Roe v. Wade and Doe v. Bolton there was a mere existence of the statutes themselves unaccompanied by any specific threat and that was held sufficient to give standing.

And in Epperson versus Arkansas, there was a discredited statute which been on the books — which would not been enforced since 1928 and in Epperson, that was held sufficient to give standing.

We think that the petitioners at least in 19 — in January of 1972 when the case or controversy was originally or March of 1972.

When the case or controversy was originally submitted to the federal court manifested as sufficient state, sufficient future arrest which was neither chimerical nor imaginary within the language of this Court.

In that, the only conduct which they have been guilty of was to be guilty of being on a Dallas Street at 2 o’clock in the morning in a car driving in the Dallas suburb.

They had no idea why they we’re arrested.

They had no idea what conduct on their part attribute the arrest.

Indeed, you had a statute sufficiently broad that would virtually invite dragnet and suspicion arrests, and if these people don’t have standing to challenge the statute it would be virtually impossible to hypothesize anyone else to whom the statute might be applied who would have standing.

It’s a very vice of a Dallas ordinance that it’s so vague, so without standards but it’s not directed particularly at anybody that there is a virtual grant of untrammeled discretion to the police to make whatever arrests they wish.

Having been arrested under at once we think that wouldn’t have been sufficient back in 1972 to determine whether or not there was a case controversy especially given the pattern, the recurrent patterns of enforcement which the Dallas police were engaged in.

Your Honor, we do not ask this Court all to substitute itself or the federal courts to substitute itself from appellate form.

The only thing that we ask in this case, is that if a jurisdiction which permits nolo contendere is prepared to allow a criminal defendant to offer a nolo contendere to plea and to take the nolo contendere to plea that under general principles of nolo law that, that grants a benefit to the state and then it allows the state a speedy disposition of the particular proceeding and the imposition of sanctions.

Burt Neuborne:

On the other hand, the person who offered the nolo plea himself is attempting to reserve for himself the opportunity should have be appropriate to litigate the underlying legal issues in a Federal Court pursuant to the choice of form rules granted by the Civil Rights Act of 1871.

In fact, in candor the basis of our claim is that a nolo plea if accepted by an appropriate jurisdiction is the functional equivalent of a reserve under England versus Louisiana Board of Medical Examiners.

And is the attempt in a criminal litigation to reserve for a future time the opportunity to present underlying legal questions to a federal court.

The option whether we would accept it lays with the State.

The State was under no obligation to accept the nolo plea but they did so and under those circumstance we believed that the petitioners have not foreclose their rights to present the underlying legal issues at some appropriate times to a federal court.

Potter Stewart:

Well, I gather you are the only one that you are under no obligation under something said in Monroe and Pape and Preiser and Rodriguez.

Burt Neuborne:

Oh, of course.

Potter Stewart:

To exhaust any traditional relief.

Burt Neuborne:

Of course.

Of course, to the extent this is appropriately in 1983 action is now I take it axiomatic that there is no obligation to exhaust state judicial remedies prior to the presentation of a constitutional issue.

Thurgood Marshall:

Well I gather that, I gather that certainly been settled as to administrative state of administered remedies but what about the —

Burt Neuborne:

I think state judicial remedies too, Your Honor.

I believe that —

Potter Stewart:

Well, that suggested Monroe and Paper, I gather that.

Burt Neuborne:

Well, in Preiser versus Rodriguez.

Potter Stewart:

Also, the language in Preiser is only for remedy under the Civil Rights Act is available.

A plaintiff need not or seek to address in the state for on them, the first case cited, Mr. Monroe and Preiser, 356 at 183 where it was suggested that you not exert judiciary.

Burt Neuborne:

I think that’s right.

What we —

William J. Brennan, Jr.:

It’s up to the extent Younger might make?

Burt Neuborne:

Yes, sir and the reason that Younger we think does not apply here Your Honor was the nolo contendere aspect of this case.

Texas, Your Honor, had it with its power to insist upon a merit determination.

William J. Brennan, Jr.:

Then we have a different story of the (Inaudible) as far as Government.

Burt Neuborne:

It would be a different issue, yes sir it would be a great deal more difficult.

William J. Brennan, Jr.:

Or it might be different from —

Burt Neuborne:

Your Honor under those circumstances I want to know whether it was a two-tier system of justice so that the appeal might have been impeded.

In the absence of a two tier system of justice —

William J. Brennan, Jr.:

But I think a while ago in your brief that if you have had trial de novo is that your constitutional claim that’s been rejected and been convicted in and then tell to appeal.

Burt Neuborne:

We could not abuse 1983.

William J. Brennan, Jr.:

Because Younger?

Burt Neuborne:

Yes sir but Your Honor, but Your Honor — but the appeal from the trial —

William J. Brennan, Jr.:

You have touched that.

Burt Neuborne:

I’m sorry sir.

Potter Stewart:

Well I don’t understand if you can see that why then you are not in the same position not having taken a de novo with you.

William J. Brennan, Jr.:

Your Honor, in the novo appeal the potential sentence, the potential maximum was 20 times greater.

Why is Younger?

If you could have stop there without going under the States Supreme Court or to whatever you have to go under the taxes procedure before you’d exhausted all to this remedy and you say that would a barred your action in federal court?

Why doesn’t it, in fact that’s what you’re in now?

Burt Neuborne:

The difference Your Honor is that a trial de novo to sentence that one receives of the trial de novo cannot be changed on appeal except in accordance with restrictions of Pierce versus North Carolina so that there is no threat of a greater sanction cause by going up through the appellate process.

But when you go a trial de novo you take the risk in this particular case, you would have taken a risk of a 20-fold increase in sentence and it’s that impediment on the free exercise of the appeal that we think distinguish as the two types of —

Thurgood Marshall:

Well if you can, if nolo contendere will helps you out why can you bring in 1983 Action before the original trial court?

Burt Neuborne:

Your Honor, I think that under Younger principles —

Thurgood Marshall:

You couldn’t.

Burt Neuborne:

The state was perfectly entitled to impose punishment on us but that parking seeking —

Thurgood Marshall:

But now the nolo is different is some place between the guilty plea and no trial?

Burt Neuborne:

Yes sir, and we think the difference is that in a nolo situation we subjected ourselves the state interest which younger was designed to protect was the capacity to prosecute the person for a particular incident.

They have vindicated that interest in this case.

Thurgood Marshall:

Would you admit that’s a very thin line?

Burt Neuborne:

You Honor, I think it’s an important line because the state interest that Younger was designed to protect was the ability to prosecute a particular defendant for a particular incident and that state interest has been vindicated here.

These defendants have paid the fine.

They paid the penalty that Texas sought it impose upon them.

The issue is whether or not they are going to be foreclosed from raising the underlying legal issue with some future time in the federal forum and we think that no principle of Younger requires that.

Younger doesn’t guarantee that courts, the state courts the opportunity to pass on the underlying legal issues.

It only guarantees the state courts the capacity to complete a pending prosecution and they have done so successfully in this case.

Thank you, Your Honor.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.