Fex v. Michigan – Oral Argument – December 08, 1992

Media for Fex v. Michigan

Audio Transcription for Opinion Announcement – February 23, 1993 in Fex v. Michigan

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William H. Rehnquist:

We’ll hear argument next in number 91-7873, William Fex v. Michigan.

Mr. Payne, you may proceed.

John B. Payne, Jr.:

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

5 years ago today, there was a robbery in Jackson County of a Rax restaurant that gave rise to the… this case.

I’d like to note that my opponent pointed that out to me, but it is an interesting coincidence.

On February 29, 1988, a complaint was issued by the Jackson County sheriff’s… or Jackson County prosecutor that showed that the residence of the defendant was the Fort Wayne, Indiana jail, and that’s at the joint appendix on page 2.

I don’t have any specific references in the joint appendix between that date and September 7 of 1988, but on that day, my client, Mr. William Fex, signed a request for disposition under the Interstate Agreement on Detainers.

Between that date and September 26, 1988, there is again something of a void, but that is the date on which the prosecutor urges that they actually received the request for distribution… or request for disposition of the detainer, and that is the date that we will concede that they actually received the request for disposition.

The question here is does the signing of the request for disposition on September 7 or does the receipt of the request for disposition trigger the 180-day limitation on prosecution under the Interstate Agreement on Detainers.

From the time that my client was sentenced in Indiana until he was transferred to Michigan for prosecution in this present case, he was effectively prevented from participating in any rehabilitation at the prison in Indiana.

And that is the problem.

That is the injury here.

Harry A. Blackmun:

Had he been going through such a program prior to the installation of the request?

John B. Payne, Jr.:

No, there wasn’t any opportunity because at the time that the complaint was issued… and I cannot believe that the Michigan prosecutor’s office didn’t have some kind of communication with the Indiana prosecutor’s office and the court there.

This was before he was sentenced in Indiana.

It was before he was convicted, as a matter of fact.

From the time that he was convicted, there was at least a hold, if not a technical detainer–

Harry A. Blackmun:

So, they were on top of him right away.

They were on top of him right away.

John B. Payne, Jr.:

–Yes, Your Honor.

And I would like to point out that a complaint is one of the documents that is listed under the Interstate Agreement on Detainers.

And so, from the day that he was sentenced, I believe that was in… on or about April 26, he was under the act, and he should have been notified.

But he was not notified until September 7.

I would like to make three points here during my argument.

The first point is that the injury here is not merely to my client.

It is an injury to the society as a whole because it prevents the rehabilitation of the prisoner.

I would also like to stress that the prisoner here is not in control.

The prosecutor in the receiving State and the jailers are in control.

They are in very firm control, and by manipulating the paperwork properly, they can either ensure a prompt disposition or they can delay it.

Thirdly, I would like to–

Antonin Scalia:

That may be a policy argument, but it may be that the language of the statute makes it an argument that ought to be addressed in the Congress.

I mean, it does say caused to be delivered, doesn’t it?

John B. Payne, Jr.:

–Justice Scalia, I don’t think that the language of the statute is sufficiently clear.

We have the statute which says that the prosecutor shall have 180 days after the prisoner shall have caused to be delivered this request.

Now, you have three concepts.

One is that the prisoner makes a demand.

Two is that the demand is transmitted through his jailers, and three, that there’s 180 days.

And I think that from a grammatical standpoint or from a logical standpoint, the requirement of the 180 days will follow the other two requirements.

So, the natural way that you would say this is that the prisoner makes a demand.

He gives it to the jailer, and then there’s 180 days that the prosecutor has to bring the action.

John Paul Stevens:

I think it’s a little different than that, isn’t it, Mr. Payne?

Supposing in the first of October, after the prosecutor had received the document, someone said to the prisoner on what date did you cause that document to be delivered to the prosecutor, what would your answer be?

When did he cause it to be delivered?

John B. Payne, Jr.:

He would… if he knew what he was after, he would say it’s September 7 when he signed it.

John Paul Stevens:

Well, just say you’re mailing a letter paying a bill, and after the bill has been paid somebody asked when did you cause that letter to be delivered.

Would your answer be when it was received or when you mailed it?

John B. Payne, Jr.:

I would say when it was mailed.

John Paul Stevens:

Of course.

John B. Payne, Jr.:

But I think that–

Antonin Scalia:

What if you knew it never got there and somebody asked you the same question, when did you cause it to be delivered?

You would still say on March 7, even though it was never delivered?

You’d say it was never delivered.

Assume–

John B. Payne, Jr.:

–It’s kind of an unusual phraseology.

John Paul Stevens:

–But these have been delivered.

These are documents that have been delivered.

That’s undisputed, isn’t it?

John B. Payne, Jr.:

Yes.

John Paul Stevens:

And the only question is when did he cause it to be delivered.

John B. Payne, Jr.:

He caused it on September 7, and–

David H. Souter:

Your argument would be a lot easier if the statute said sent, wouldn’t it?

John B. Payne, Jr.:

–Yes, it would be, Justice.

David H. Souter:

Isn’t that a distinction we ought to bear in mind?

John B. Payne, Jr.:

Yes, and it still is not clear, though, because normally you wouldn’t ask somebody when did you cause your light bill to be paid.

You would say when did you send it or when was it received.

John Paul Stevens:

But you couldn’t say when did you send it here because he doesn’t send it, does he?

He gives it to someone else to send it.

John B. Payne, Jr.:

That’s correct, and I would like to point out–

John Paul Stevens:

And the statute doesn’t say after it was delivered, does it?

It says after he caused it to be delivered.

John B. Payne, Jr.:

–That’s correct, and the emphasis should be on he, and it’s on what he does.

David H. Souter:

Don’t we still have the problem that he didn’t cause it to be sent?

The statute does not speak of his causing it to be sent.

The statute speaks of his causing it to be delivered.

John B. Payne, Jr.:

That’s correct, Your Honor.

David H. Souter:

And that’s the distinction that I was trying to suggest.

We’ll resume there at 1:00, Mr. Payne.

John B. Payne, Jr.:

Thank you.

William H. Rehnquist:

Mr. Payne, you may proceed with your argument.

John B. Payne, Jr.:

Thank you, Mr. Chief Justice.

Before the lunch break, we were… I was asked a question about shall have caused to be delivered, and the only answer I have is that this is ultimately an ambiguous way of phrasing the requirement.

When somebody is asking whether or when a phone bill or a light bill was paid, the question is when did you send it, and the answer, of course, is on the day that it was put in the mail.

The Senate report to 91-1356 has a somewhat different formulation in explaining the Interstate Agreement on Detainers than the excerpt that… on which the Solicitor General and the respondent reply.

There–

Byron R. White:

When you mail a check, you may think you’ve paid it, but have you?

John B. Payne, Jr.:

–Well–

Byron R. White:

Probably not.

John B. Payne, Jr.:

–we’re in somewhat of an–

Byron R. White:

Probably not.

John B. Payne, Jr.:

–artificial situation here because we’re dealing with the–

Byron R. White:

For example, if you didn’t have sufficient funds, do you think you’ve paid your bill?

No.

That’s all right.

John B. Payne, Jr.:

–Well, Justice, if you are accepting a… an offer of a contract, the offer of a contract is accepted when it is put in the mail or when you have delivered the offer to the agent of the… or when you’ve delivered your acceptance to the agent of the offeror.

Byron R. White:

Or if you want to comply with our time requirements, if you have a little verification that you put it in the mail on time, you are in time.

John B. Payne, Jr.:

That’s correct, but the bottom line here I think is that the prison authority is the agent of the prosecutor.

And Mr. Schrotenboer urges that the prison authorities have to have a certain amount of time in order to respond to the request for disposition.

I would like to suggest that they really don’t.

As a matter of act, in this case, the certificate of inmate status was executed on the same day that the inmate executed his request for disposition, and even if they needed a day or two, they could process that paperwork before they gave the request for disposition to the prisoner so that it would be all ready to go when he signed it.

Now, the Solicitor General suggests that the prisoner is in control.

I handle habeas corpuses… habeas corpus case.

I handle section 1983 cases.

I handle a lot of criminal appeals, and I visit prisoners on a regular basis.

And I submit to the Court that prisoners do not have control over their jailers.

They can manipulate the system with petitions and–

I’m glad to hear that.

John B. Payne, Jr.:

–writs.

I’m glad to hear that, Mr. Payne.

John B. Payne, Jr.:

Yes.

We worry about that sometimes.

John B. Payne, Jr.:

But–

It’s very comforting.

John B. Payne, Jr.:

–Well, they can manipulate.

They can disrupt.

They can cause effects outside of the prison, and certainly they can disrupt the internal affairs of the prison, but they don’t have control over their jailers to the extent that they would be able to ensure that the prison sends the request for distribution to the prosecutor.

And that’s the kernel of the Supreme Court of Tennessee’s handling of this issue.

They said that–

Harry A. Blackmun:

Mr. Payne, are you familiar with a case up here not too long ago called Houston against Lack?

John B. Payne, Jr.:

–No, I am not, Your–

Harry A. Blackmun:

It’s not cited in your brief.

Harry A. Blackmun:

I commend it to you for what it’s worth.

John B. Payne, Jr.:

–I will… I thank you for that.

John Paul Stevens:

It helps you, by the way.

It doesn’t hurt you.

[Laughter]

John B. Payne, Jr.:

Okay, thank you.

In any case, the prison… the Moore case, which is probably the primary case on which the respondent relies, from the Supreme Court of Tennessee would hold that, number one, the prisoner is responsible for ensuring that the jailer sends the request for disposition.

And if the prison does not do so, then that’s chalked up against the prisoner.

It is not… any delay by the prison is not considered against the prosecutor’s 180 days.

Byron R. White:

I know, but it isn’t like increasing his sentence or anything.

It’s just a… it just means that the prosecutor is going to have a few more days extra to try him.

John B. Payne, Jr.:

Well, in some cases, it’s a few more days.

In Moore, it was 225 days, but the problem here is that all of the time that the prisoner is under detainer, he’s unable to get favorable work assignments.

He’s unable to get rehabilitative services.

He’s in general… in this case, my client was in segregation that period of time.

He’s unable to be rehabilitated, and that’s the… the intent of the legislature is to address that problem.

Byron R. White:

Mr…. excuse me.

So, you think the prosecutor in the other State should take the risk of delay by the prison authorities and by the mail.

John B. Payne, Jr.:

Well, Justice White, I don’t think–

Byron R. White:

Well, the answer is yes, isn’t it?

John B. Payne, Jr.:

–Yes.

Byron R. White:

Okay.

John B. Payne, Jr.:

I’m sorry.

Byron R. White:

That’s all I need to know.

John B. Payne, Jr.:

Yes, and may I amplify that?

When the prosecutor sends the request for… when the prosecutor sends the detainer to the prison authorities, the prosecutor certainly should know that they have done it.

And if they keep any kind of a log and if the paperwork is properly set up so that… for example, you have a one-write system in accounting or in docket management… if the prosecutor sets up its paperwork trail and keeps a log, I can’t see that the prosecutor would lose any more than possibly a few days when they have to contact the prison to find out whether the prisoner signed it or not.

Now, they… if they keep track of these things, I can’t… I cannot see that the prosecutor could be severely hampered in adhering to the 180-day rule, and if there is a reason for the delay, then they can go to court and ask for a continuance.

The statute provides for that.

Antonin Scalia:

And then what’s the consequence of their failure to… I mean, let’s assume they don’t do it.

Antonin Scalia:

What is the consequence?

John B. Payne, Jr.:

The consequence is that they lose jurisdiction to try the prisoner.

Antonin Scalia:

He doesn’t get punished for that offense at all.

Right?

And what’s the consequence of putting the burden the other way?

John B. Payne, Jr.:

The consequence of burden–

Antonin Scalia:

That the prisoner may not be rehabilitated for up to a couple hundred days.

John B. Payne, Jr.:

–Yes, and in many cases–

Antonin Scalia:

Putting those two risks next to each other, it’s clear to me which one is greater.

John B. Payne, Jr.:

–Yes.

But, Justice Scalia, you have to consider whether… who has the control.

Who’s in charge here?

The prosecutor has control over the situation, and the prosecutor can control whether or not the paperwork gets processed, whether the prisoner is writted from the one State to the other and whether the trial takes place within 180 days.

William H. Rehnquist:

You’re talking about the Jackson County prosecutor in Michigan now.

John B. Payne, Jr.:

Yes.

William H. Rehnquist:

How does he have control over what goes on in the Indiana prison?

John B. Payne, Jr.:

He knows that the detainer has been sent to the Indiana prison, and if he is keeping a log, he knows when to expect the return of the request for disposition.

William H. Rehnquist:

Well, but that depends on the action of the individual inmate, doesn’t it?

John B. Payne, Jr.:

Well, Mr. Chief Justice, I think that if the inmate is going to sign the request for disposition, he probably will do it immediately, and the prosecutor could operate on the assumption that it’s going to come back and at least start the initial paperwork.

The alternative is that you say to the prison officials, well, if you don’t send it back, that’s okay because the prosecutor is not prejudiced by your failure to return the request for disposition.

There’s just no control whatsoever.

And in the Moore case, the Supreme Court of Tennessee went so far as to say that if there is an intervening detainer that is processed and if the prisoner goes to another State and then comes back, the original detainer is extinguished.

It just goes away.

Byron R. White:

Don’t you think a lot of people who are charged with a crime would rather delay the trial?

A lot of people would.

John B. Payne, Jr.:

I think if they’re in prison, though, the motivation is all the other way.

The motivation–

Byron R. White:

Well, is there a… is there some experience that you’ve had or that other people have had that indicate that when a detainer is filed, the prisoner immediately requests for a trial?

John B. Payne, Jr.:

–Well, certainly in this case and in a large majority of the cases that I have read, they indicate that when the detainer is given to the prisoner, he signs it immediately.

That appears to be the case.

John B. Payne, Jr.:

Now, that was not the case in Moore.

If I remember correctly, Debbie Moore at first refused extradition and then someone in the prison… you know, a prison paralegal clued her in and said, you know, you should sign the request for disposition and file it, and so she did.

But–

John Paul Stevens:

Mr. Payne, earlier I think you started to comment on the Government’s use of the legislative history in this case where they refer to a comment that the 180 days is… it’s kind of ambiguous, but were you going to… and you never finished what you were going to say about that.

John B. Payne, Jr.:

–Yes, Justice Stevens.

The attorney General, as part of the legislative history in Senate report 91-1356, says article 3 of the agreement provides that the inmate may make a request for the disposition of all pending charges upon which detainers are based by applying to the official in whose custody he is placed, and that application will be forwarded to authorities of the jurisdiction in which the charges are pending.

The prisoner must be brought to trial within 180 days thereafter.

And the excerpt on which the Solicitor General relies seems to indicate that the 180 days starts after the request for disposition is received by the prosecutor.

I believe that a reasonable interpretation of that language would indicate that… or treats the signing of the request for disposition and the transmittal by the prison authorities as one event which triggers the 180-day time limit so that when you say the charges on which detainers are based… he may request the disposition by applying to the official in whose custody he is placed.

I think there’s a slightly different emphasis there than on the excerpt on which the Solicitor General relies.

Anthony M. Kennedy:

If a State were routinely remiss in processing these requests quickly… say for budgeting reasons, they say, well, they thought IAD’s are taking too many… too much time… is there any remedy that the receiving State can institute?

Say one State is particularly slow, particularly remiss.

John B. Payne, Jr.:

Well, Justice Kennedy, in my experience or in… according to my understanding, there is no penalty on the sending State for not following through.

The only real control that we have here is the receiving State’s determination to bring the prisoner to trial, and I think that you have to consider that the prison authorities and the prosecuting authorities are going to work very well together, whereas the prisoner–

Anthony M. Kennedy:

In my hypothetical they didn’t.

Then there’s nothing you can do?

John B. Payne, Jr.:

–As far as I know, there’s no remedy for that.

Sandra Day O’Connor:

Could the prisoner bring an action to compel the prison authorities to forward his request?

John B. Payne, Jr.:

The statute doesn’t… my answer to that would be no, Justice O’Connor, because it would be more time consuming than would be… would have any practical effect and also because the statute doesn’t provide for it.

I can imagine a section 1983 action or a request for writ of habeas corpus, but those things just take too long, and I can’t imagine the State just sitting on it for, you know, 9 months to a year.

John Paul Stevens:

Does the statute provide that the prisoners get any kind of notice as to whether or not it was delivered?

John B. Payne, Jr.:

The statute does not provide for that.

John Paul Stevens:

So, how would he know whether he had a suit or not?

John B. Payne, Jr.:

Well, that’s a… he wouldn’t.

John Paul Stevens:

He just assumes–

John B. Payne, Jr.:

He wouldn’t.

John Paul Stevens:

–that they’ll carry through, yes.

John B. Payne, Jr.:

If there are no further questions, I would… I’ll reserve the remainder of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Payne.

Mr. Schrotenboer.

John B. Payne, Jr.:

Thank you.

Jerrold Schrotenboer:

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

I’m asking that the Court affirm this particular case.

Both the Michigan Supreme Court and the vast majority of jurisdictions have correctly ruled that article III, the Interstate Agreement on Detainers’ 180-day provision, begins with the actual receipt by the prosecutor, and I’m asking you to rule the same essentially for three reasons.

First, the language of the statute itself.

After all, this is a statutory interpretation case.

Secondly, the congressional history, and third, the actual policy considerations, which actually favor respondent’s position, which favor the position of a vast majority of jurisdictions.

The first is the statute’s language itself.

This phrase… the statute is not ambiguous.

The phrase that we’re talking about here is shall have caused to be delivered.

John Paul Stevens:

No.

You left out the key word.

He shall have caused to be delivered.

And who is the he to whom the statute refers?

Jerrold Schrotenboer:

The inmate, of course.

The inmate–

John Paul Stevens:

So, when the–

Jerrold Schrotenboer:

–shall have caused to be delivered.

John Paul Stevens:

–Right, and what is the last time he did anything to cause it to be delivered?

Jerrold Schrotenboer:

When he handed it to the warden.

That is correct.

John Paul Stevens:

So, isn’t that date he shall have caused it to be delivered?

Jerrold Schrotenboer:

No.

John Paul Stevens:

Then why doesn’t the statute say after delivery if that’s what it means?

Jerrold Schrotenboer:

You can always–

John Paul Stevens:

See, these words are superfluous under your reading of the statute.

Jerrold Schrotenboer:

–No.

John Paul Stevens:

You say it doesn’t mean after he shall have caused it to be delivered.

It says after it was delivered is what you’re saying it means.

Jerrold Schrotenboer:

That’s right.

Jerrold Schrotenboer:

It’s written up in such a way as not to add in an extra sentence.

He shall–

John Paul Stevens:

But it has unnecessary words that are not needed at all.

Jerrold Schrotenboer:

–No.

John Paul Stevens:

And don’t we generally construe statutes to avoid assuming that certain words are totally unnecessary?

Jerrold Schrotenboer:

Of course, but I don’t quite understand what’s unnecessary under this interpretation.

Yes.

John Paul Stevens:

The words, have caused to be.

Jerrold Schrotenboer:

Yes.

Caused to be delivered, and that’s the key point here.

And that shows that it’s 180 days from actual receipt.

John Paul Stevens:

It doesn’t say that.

Jerrold Schrotenboer:

Yes, it does for two reasons, Your Honor.

First, it’s in the future perfect tense.

If it was the time that he actually received it… I mean, that he handed it to him, it wouldn’t be future perfect.

Future perfect means complete and in the future, after he shall have caused to be delivered.

And the second reason is the use of the word delivery itself.

Your Honor yourself used the word delivered that way.

Well, when you asked the question this morning is there any doubt that the documents have been delivered.

John Paul Stevens:

No, no, no.

That wasn’t the question.

The question is after delivery and you ask the person who has mailed the thing to you and you said to him when did you cause it to be delivered.

And you’re telling me you would answer that by saying, oh, when you got it.

Jerrold Schrotenboer:

That’s right.

[Laughter]

John Paul Stevens:

And you think that’s perfectly plain.

Jerrold Schrotenboer:

That is sufficiently plain given everything in this particular case.

The word delivered… you know, just yesterday on the television I heard an advertisement for Federal Express.

We confirm delivery.

That would be totally meaningless if we confirm having sent it on.

Jerrold Schrotenboer:

You know, UPS, the best delivery service in the business, it means… if they’re going to come in and say, well, we sent it on and that’s all that we care about, we don’t really care that much about actual receipt, they’re not going to get too much.

The phrase is not that ambiguous.

Yes, it was written by a lawyer, and that’s sometimes a problem and that’s why we’re here.

But those… it is sufficiently clear to show that that is what was intended, which is exactly what the vast majority of jurisdictions have ruled.

And the second reason, of course, in going–

Byron R. White:

Justice Stevens and say, well, by his calculation, when it isn’t delivered, it’s the prisoner who has caused it to be nondelivered.

He has given it to the prison authorities, and he… and anticipating it be sent in the mail, and either the prison authorities or the mail failed.

Jerrold Schrotenboer:

–That’s correct.

Byron R. White:

And so, he caused it to be nondelivered.

Jerrold Schrotenboer:

No, no.

That’s–

[Laughter]

That’s not… no.

John Paul Stevens:

Nobody caused it to be delivered if it never got there.

After it has gotten there–

–Caused to be nondelivered.

He caused it to be nondelivered.

[Laughter]

Jerrold Schrotenboer:

No.

The… let’s not forget the phrase here is shall start… you know, let’s go back a little bit further–

Antonin Scalia:

I think what you’re saying is he can’t cause it to be… he cannot possibly cause it to be delivered until it gets there.

Jerrold Schrotenboer:

–That is true.

Antonin Scalia:

He cannot possibly cause it to be delivered at a time prior to when you know it has been delivered.

That’s right.

Jerrold Schrotenboer:

That is true.

John Paul Stevens:

Obviously, it has to be delivered before they can be a cause of the delivery, but once it has been delivered, you ask when did he cause it to be delivered.

And you say he caused it to be delivered 20 days–

Jerrold Schrotenboer:

When he–

John Paul Stevens:

–after he had anything to do with it.

Jerrold Schrotenboer:

–The phrase is he shall be brought to trial within 180 days after he shall have caused to be delivered, and that is the future perfect.

Jerrold Schrotenboer:

The word perfect means complete.

And, therefore, it starts with actual receipt.

John Paul Stevens:

No.

It’s complete, but the question is always asked at a period after the delivery has been completed.

That’s the hypothesis in all these cases, and you’re just measuring the date at which he caused it to be delivered.

It has always been delivered.

So, your future… you always look at it after the transaction has been completed because it wouldn’t be a problem otherwise.

That is correct.

And the way to interpret it, the way to look at it is starts the day that the prosecutor receives, and that’s what it says.

It doesn’t say it in the… those words, but that is what it says.

When the prosecutor gets this material… let me ask this question… does… will he have any way of knowing when it was handed to the warden?

Jerrold Schrotenboer:

Absolutely not, Your Honor.

Antonin Scalia:

I mean, I can understand a prosecutor gets it.

He says to be put… you know, his office hits a receipt stamp on it.

He knows he has to count 180 days from then.

Right?

Otherwise, he would have to try to figure out when it was that the inmate gave it to the warden in the other State.

Jerrold Schrotenboer:

That is absolutely correct, Your Honor.

That’s the third point in here, the policy consideration.

Antonin Scalia:

And inmates might be inclined to lie about something like that?

Jerrold Schrotenboer:

Yes.

Antonin Scalia:

They’ve been known to lie.

Jerrold Schrotenboer:

Yes.

Considering Jackson County has the largest walled prison in the world, yes, I can say they’ve been known to lie.

John Paul Stevens:

Do they… have they learned about the invention of the time stamp in Jackson County?

So, you couldn’t time stamp it in the county where the prisoner gives it to the warden.

There’s no way of keeping a record of that date?

Jerrold Schrotenboer:

We have learned the time stamp in Jackson County.

John Paul Stevens:

But you don’t think they know how to do it in Fort Wayne.

Jerrold Schrotenboer:

But for some strange reason, Mr. Fex did not bother walking over to our office on September 7 to have it time stamped.

John Paul Stevens:

Well, you’re in Michigan, aren’t you?

And he was in jail in Fort Wayne.

So, I imagine he couldn’t go into your–

[Laughter]

Jerrold Schrotenboer:

That’s right.

John Paul Stevens:

But couldn’t the Fort–

Jerrold Schrotenboer:

That’s right.

John Paul Stevens:

–But couldn’t the Fort Wayne authorities?

Wouldn’t they as a routine?

How do they know that this one was actually on September 7?

They rely on his testimony, or do they have some kind of record keeping that enables them to fix that date?

Jerrold Schrotenboer:

That is probably some type of record keeping in this particular case.

But that’s the point.

The inmate is in a better position to monitor it.

Although that does not seem correct on its face, it actually is correct.

The prosecutor–

Antonin Scalia:

Well, at best your prosecution would be subject to the record keeping practices, which may be quite slovenly, of somebody in another State.

Correct?

Jerrold Schrotenboer:

–Yes.

Antonin Scalia:

And that is not what you want to risk.

Jerrold Schrotenboer:

Yes.

Being rather intimately connected with the Michigan Department of Corrections, I’d certainly hate to be subjected to that.

They have the Reception and Guidance Center in Jackson too.

Byron R. White:

I suppose 99 percent of your returns from the prison where you… to which you have sent a detainer, they do have a time stamp on it as to when the prisoner gave the demand to the authorities to deliver.

You would have no problem then about when the 180 days starts, would you?

Jerrold Schrotenboer:

As long as the prison bothers sending that little piece of information on.

I haven’t always received that thing.

I handle the extraditions in Jackson too.

It doesn’t always happen.

Byron R. White:

Well, it always happens because the mail fails.

Jerrold Schrotenboer:

It doesn’t always happen because the prison officials don’t always bother sending that piece of information on.

John Paul Stevens:

And so that risk should be taken by the prisoner rather than negotiating with the other State.

You don’t speak to one another I guess.

Jerrold Schrotenboer:

That is correct, and the reason for that is the prisoner is in the vastly better position.

Yes, the Jackson prosecutor’s office knew that he was in the county jail, but the Interstate Agreement on Detainers had not yet kicked in then because he hadn’t been under a judgment of sentence, which is the very first phrase of subsection (a), article III.

We did not know he was under a term of imprisonment until months later.

The prosecutor’s office doesn’t always send out detainers.

Very often it’s police agencies that send them.

Very often a detainer is filed with the jail which is, of course, before the IAD kicks in.

And then it is forwarded on, along with the judgment of sentence, to the prison system, and they don’t bother letting the prosecutor know about it.

Anthony M. Kennedy:

Do you have an obligation, as you understand the act, to send a second detainer once the judgment becomes in effect?

Jerrold Schrotenboer:

I don’t see it as an obligation.

I think it might be wise to do something like that.

Anthony M. Kennedy:

Do you think you fulfill your statutory responsibilities by sending it to the jail before the IAD even comes into effect?

Jerrold Schrotenboer:

I don’t see how there’s any statutory duties.

There is no statutory duty for the prosecutor to file any detainer at all.

Anthony M. Kennedy:

Well, I take it there’s a duty to do something in order to trigger the 180-day period.

Jerrold Schrotenboer:

That is entirely on the inmate to trigger it.

The… as this Court stated in United States against Mauro, the triggering part of the act is the filing of the detainer itself.

If the prosecutor doesn’t feel like filing the detainer, the act doesn’t apply.

If there’s no detainer, there’s no problem.

So, there’s no duty by the prosecutor.

It would be wise for the prosecutor to do it if he feels like getting the guy back to try him, particularly now as opposed to later.

William H. Rehnquist:

Well, do–

–And that’s the way these cases come up, isn’t it?

The prosecutor does file a detainer because–

Jerrold Schrotenboer:

Or someone does.

William H. Rehnquist:

–he wants to bring the defendant back for trial.

Jerrold Schrotenboer:

Yes.

Anthony M. Kennedy:

But is it proper procedure under the act to file the detainer with the jail before the prison commitment begins?

Jerrold Schrotenboer:

It is proper procedure, but it’s certainly not mandated.

What it… the detainer in the jail is, of course, nothing but a hold on him.

Please don’t let him go.

We have a felony or something or other against him.

Please don’t let him go before you send him to us.

And, of course, the Interstate Agreement on Detainers does not apply to that situation.

That is exceptional–

Anthony M. Kennedy:

It comes to into effect only when what?

There’s a judgment of commitment or–

Jerrold Schrotenboer:

–It goes into effect when a detainer is filed after he has… is under a judgment of sentence.

That is correct.

Anthony M. Kennedy:

–So, then it would seem to me under a reading of the act that you… at least to be careful, you ought to file a second detainer after the judgment so that this act can… so that… at least so that the prisoner can know–

Jerrold Schrotenboer:

It makes a lot of sense.

Anthony M. Kennedy:

–that a formal detainer has been filed.

Jerrold Schrotenboer:

Well, let’s put it this way.

You file a second detainer to make sure that the prison system knows so that they don’t let him go.

If they tell me that there’s somebody in a… another prison, I’ll file the detainer right away.

I’m not going to think, well, maybe an earlier detainer is following it along, this thing, and that thing.

No, I’m going to type out myself a letter and I’m going to send it out.

But it’s the inmate who is in a better position to monitor it than the prosecutor.

The prosecutor very often doesn’t know it.

The inmate, yes, 42 U.S.C., section 1983, this Court’s case, Adams against Cuyler.

If the warden send it on, that’s a subsection (b) violation.

He can sue for that.

Also–

John Paul Stevens:

Yes, but how does the prisoner know he hasn’t sent it on?

Jerrold Schrotenboer:

–Well, subsection (c) requires… well, he’ll know.

When nothing happens after the… after, say, 180 days has gone by, he’ll know.

He’ll know.

John Paul Stevens:

Well, that certainly is… he has to wait the full statutory period before he has any opportunity to know.

Jerrold Schrotenboer:

To a certain extent, that’s right.

And then he can sue.

And also, Sixth Amendment right to speedy trial, which overrides the Interstate Agreement on Detainers.

John Paul Stevens:

You don’t need an agreement on detainer statute or agreements if you can rely on that.

Jerrold Schrotenboer:

No.

I’m saying that that supplements it.

Of course, we need the Interstate Agreement on Detainers because the whole purpose of the act is to facilitate trial.

It’s not so easy walking over to a prison in another State and say I’d like to pick up this inmate and come over across the line.

You know, it’s as easy walking into Canada and asking for that.

You have to go through the extradition procedures, and this is, in a sense, an extradition act.

John Paul Stevens:

Yes, but the States have a mutual interest in working together in implementing the statute, don’t they?

Jerrold Schrotenboer:

That’s right.

John Paul Stevens:

If you don’t cooperate with Indiana, Indiana won’t cooperate with you.

Jerrold Schrotenboer:

That’s–

John Paul Stevens:

I would assume that the two of you have a common interest in promptly processing these requests and keeping proper records and all the rest.

Jerrold Schrotenboer:

–That is basically correct–

You’re not dealing with–

Jerrold Schrotenboer:

–even though two States have not signed the IAD.

John Paul Stevens:

–But here we have States that have signed it.

Jerrold Schrotenboer:

Both of them have signed it.

John Paul Stevens:

Do you have any comment on the Houston against Lack case?

Are you familiar with it?

Jerrold Schrotenboer:

Yes, I am.

Houston against Lack absolutely does not control in this case.

It is superficially similar, but it does not control.

It was a 5-4 case.

I know that Your Honor and Your Honor, Justice Blackmun, were in the majority–

Harry A. Blackmun:

What difference does it make if it’s 5 to 4 or 6 to 3?

Jerrold Schrotenboer:

–Nothing.

Harry A. Blackmun:

Okay.

Jerrold Schrotenboer:

Houston against–

Byron R. White:

Any of us who were in dissent?

Jerrold Schrotenboer:

–Yes, I’m kind of trying to remind people.

But I’m not sure I was.

Jerrold Schrotenboer:

You were in the majority.

[Laughter]

I’m trying to remind the people who were in the dissent.

The case dealt with a habeas petitioner who had lost in the district court.

He then appealed.

It’s the 30-day Federal rule 4(a)(1) of the Federal Rules of Appellate Procedure.

He appealed.

The 30-day procedure is jurisdictional.

What he loses by not making it on time is his appeal.

The reason… and this Court said for purposes of this statute, we’re going to start it the day he hands it over to the warden.

The reason it’s different is because this is a fairness case.

Actually I agree with it, but that’s beside the point.

It’s a fairness case.

It’s unfair for the inmate.

Inmates are in a little tougher situation than normal people are because they can’t just walk over to a courthouse and hand it over to them.

That is… and that’s why this Court in cases like Haines against Koerner and things like that have given inmates special deference.

But there’s something extra in the present case.

The inmate in the present case… it’s not he loses the appeal, but he just… the prosecutor gets a few extra days, a few extra hundred days.

And also Houston against Lack is a two-party case.

The only parties are the inmate–

Byron R. White:

He… the prosecutor doesn’t get any extra days.

He just gets the days he’s entitled to.

Jerrold Schrotenboer:

–Actually that’s right, Your Honor, but a few extra days as opposed to the other interpretation.

Houston against Lack was a two-party case.

The only parties are the court system and the inmate.

In the present case, we’re talking a three-party.

Jerrold Schrotenboer:

There’s the prosecutor too.

There’s no unfairness to the prosecutor in Houston against Lack.

In the present case, there’s a lot of unfairness to the prosecutor.

I guess the only other point.

Going back to the language itself, this Court itself in Carchman against Nash actually said it starts from actual receipt.

It’s not quite the words it used.

You, of course, can read it, yes, it is dicta, but that’s my point.

It’s the actual language.

It’s the common usage of the language.

And, of course, there’s the congressional history, and I guess… which is spelled out both in my brief.

The Senate report makes it very obvious.

The Solicitor General’s brief going into the California and Oregon statutes really make it obvious that this is what the drafters intended.

And the very last point is we do have an extra issue here, subsection (c).

John Paul Stevens:

Of course, the California statute is interesting because that’s perfectly clear.

It says shall have delivered.

Jerrold Schrotenboer:

The reason that it is different is because that requires the inmate to send it on to the prosecutor.

The IAD is better because it requires the warden to send it on so that when the prosecutor gets it, it will be more reliable and more thorough.

The prosecutor really should have information like minimum out date, maximum out date, and the warden is more likely to provide reliable information on that point.

Thus, the change in language.

But there’s absolutely nothing anywhere that shows that the drafters intended to change the date of actual receipt as the day for the 180 days to start.

John Paul Stevens:

Nothing except the language of the statute.

Jerrold Schrotenboer:

Well, whatever.

The only other question in the case is a claimed subsection (c) violation.

I’m going to have to rely on my brief in that case to the extent that… except to say there is no evidence presented whatsoever that subsection (c) was violated, and petitioner has not even requested an evidentiary hearing on that.

And secondly, there is no actual prejudice whatsoever, even alleged.

Other than to ask the Court to affirm, this ends my presentation, and I ask if anyone has any questions.

William H. Rehnquist:

Thank you, Mr. Schrotenboer.

Mr. Seamon, we’ll hear from you.

Richard H. Seamon:

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

I’d like to begin by addressing a question that Justice Stevens posed to my colleague, which is whether under our interpretation of article III(a) of the IAD, the provision doesn’t contain unnecessary language.

Richard H. Seamon:

Pardon me.

And my answer to that is no.

Now, Justice Stevens asked why the article III(a) is not drafted so as to simply trigger the 180 days after delivery of the prisoner’s request.

My… I would suggest that the answer to that comes from the drafting history, which we discuss in our brief beginning at page 21.

The drafters note… pardon me… the Council of State Governments, which opposed the IAD in 1957, actually proposed two State… two agreement proposals at the same time, one based on interstate detainers and one governing intrastate detainers.

The speedy trial provisions in both proposals were virtually identical, and the council noted that the intrastate proposal was based on statutes then in effect in California and Oregon.

Both the California and Oregon statutes plainly required actual receipt for triggering of the speedy trial provision.

We suggest that the drafters did not intend to change the actual receipt requirement.

The relevant differences between the State models on which the IAD was based and the IAD itself is the wording requiring the prisoner to have caused delivery of the required documents.

There are two reasons for that wording requiring the prisoner to cause delivery.

First is the whole topic of article III is that the prisoner has initiated the process of disposing of the charges underlying the detainer.

The fact that the prisoner has initiated the process is what distinguishes article III from article IV, which deals with when the State initiates the process of disposing of the charges.

John Paul Stevens:

How does he initiate the process?

By causing something to be delivered?

Richard H. Seamon:

That’s correct.

He causes–

John Paul Stevens:

So, that’s what you focus on, is his act in initiating the process is the key act in whole statutory scheme.

Richard H. Seamon:

–No.

Under article III, there are two acts that must occur before the 180-day period begins.

John Paul Stevens:

You have to file a detainer with the prison I’m sure.

Richard H. Seamon:

Well, and specifically under article III, he has to cause the transmittal of his documents, and the documents actually have to be delivered.

And there’s no dispute here that delivery means actual receipt.

Article III(a) differs from the State proposals on which–

John Paul Stevens:

If you talk about the drafting history, I’m surprised they didn’t follow the Oregon statute which was an equally clear model for this under your view I take it.

Richard H. Seamon:

–The Oregon statute revolved… was built around the verb receive.

John Paul Stevens:

Right.

Richard H. Seamon:

And we would suggest that the problem with using the verb receive rather than the verb deliver in article III is that then you would shift the focus of article III to the prosecutor and the appropriate courts receiving it.

That would shift the focus away from the prisoner, and the prisoner has a vital role under article III as opposed to article IV because he initiates the process.

John Paul Stevens:

Well, but that’s precisely the shift in focus which you say the drafters intended.

It should focus on receipt.

Richard H. Seamon:

But article III as distinguished–

John Paul Stevens:

That the whole scheme, rather, focused on the prisoner which would seem to focus on when he caused it to be delivered.

Richard H. Seamon:

–I’m sorry.

I may have misspoken.

The scheme of article III focuses on the prisoner’s having initiated the process.

And so, using the prisoner as the subject of the relevant clause we’re talking about makes sense in understanding why article III is different from article IV of the IAD because article IV is directed at the State.

And, of course, the other reason for using the word cause in the relevant wording is that the prisoner does not make an actual delivery directly to the court and the prosecutor in the receiving State.

Instead, under article III(c), he is required to give his request for disposition to the wardens who are then required to promptly forward it to the receiving State.

That’s why the causing language is in there.

And… but the gist of article III is to require a communication between the prisoner and the prosecutor in the receiving State.

And it is only when that communication, namely, the prisoner’s request for disposition, has been completed that the prosecutor’s duty to bring the prisoner to trial in a speedy manner begins, and that he cannot know of his duty to do so until he has actually received the request for disposition.

The other point about the relevant language of article III I’d like to repeat is one that Justice Souter raised, which is that the drafters could easily have drafted article III(a) to trigger the 180-day period to begin when the prisoner sent or gave his request for disposition to the warden officials.

In fact, the language of giving or sending is included in article III(b).

Therefore, it would have been natural, had the drafters intended to adopt petitioner’s rule, for them to have used similar language in article III(a).

The use of different language suggested that they had a different intention.

William H. Rehnquist:

Mr. Seamon, is there anything in the IAD that requires a prosecutor to move promptly in order to get a prisoner back for trial?

Richard H. Seamon:

I’m not quite sure I understand your question.

Certainly once he receives the prisoner’s request, he then has 180 days.

William H. Rehnquist:

Well, no.

Supposing he just says I’m not sure whether I want this guy to come back for trial, so I’m not going to put a detainer on him.

I might do it next year.

Richard H. Seamon:

Ultimately there are Sixth Amendment limitations.

William H. Rehnquist:

Yes, but I said in the IAD.

Richard H. Seamon:

No, there are none.

I would note that under the Speedy Trial Act in the Federal system, my answer would be different because the Speedy Trial Act does give a Federal prosecutor a duty to file the detainer if he knows that a prisoner, who has been charged with a crime, is in a State.

But the IAD itself does not.

And we recognize at the same time that States have an interest in processing these requests speedily, and in fact, that the prison officials have a duty… and we would suggest in most cases, they live up to that duty… of sending on the prisoner’s paperwork promptly.

Nonetheless, the IAD itself does not contain a sanction for addressing the situation in which a State does not forward those documents promptly.

That doesn’t mean there are no remedies.

Both at the political level, the State… a State that has been negligent in fulfilling its duty may well be subject to political pressure from other States that are parties to the IAD, and at an individual level, the prisoner himself certainly has remedies by way of mandamus or the internal grievance procedure that is present in all prison systems, including the Federal system.

Richard H. Seamon:

If there are no further questions.

John Paul Stevens:

Yes.

I’d just be curious as to what you’d have to say about Houston against Lack.

Richard H. Seamon:

I agree with my colleague’s explanation of Houston v. Lack.

Houston v. Lack concerned a very different–

John Paul Stevens:

Do you think the plain… the language in that rule is any less plain than this?

Richard H. Seamon:

–The Court construed the language of rule 4(a) to avoid an interpretation that would have effectively disastrous consequences for the prisoner in that case.

He would have lost his right to appeal on the merits of his conviction.

And here the consequences are much different.

They are noteworthy, of course.

The prisoner suffers a delay in coming to trial, but nonetheless, they are much less drastic.

In fact, the consequences that are drastic here are visited upon the prosecutor who suffers dismissal of the charges against the prisoner perhaps simply through the fortuity of the prisoner’s request being lost through the mail.

Harry A. Blackmun:

Well, the respondent strove mightily to distinguish Houston against Lack, and none of you cite it.

All three of you let it rest in limbo.

Richard H. Seamon:

We did not cite Houston v. Lack in our brief because we don’t think it’s apposite.

We did cite a jurisprudentially related case of Fallen v. United States on page 12.

That concludes my presentation.

I thank the Court.

William H. Rehnquist:

Thank you, Mr. Seamon.

Mr. Payne, you have 6 minutes remaining.

John B. Payne, Jr.:

Thank you, Mr. Chief Justice.

I have to differ with the respondent.

The prisoner does not initiate the process here.

The prosecutor initiates the process, and if the prosecutor wants to take control of the process, he can do so right down on the line.

Antonin Scalia:

Do you disagree that the detainer could have been filed before the sentencing?

It could have been filed by someone other than the prosecutor before the sentencing.

Is that true or not?

John B. Payne, Jr.:

Well, the detainer may have been filed.

In this case, the complaint was filed before the… it was before the prisoner was convicted and sentenced.

However–

Antonin Scalia:

Sure, but you say… the prosecutor isn’t in control if it isn’t up to him whether this whole statute shall be called into play by the filing of a detainer which is the first step that triggers it or that lets the prisoner trigger it.

John B. Payne, Jr.:

–Well the complaint, Justice Scalia, comes from the same place as the detainer would.

It comes from the Jackson… in this case, from the Jackson County prosecutor’s office.

It just happened to be that there was a complaint that was issued before the prisoner was sentenced in Indiana, and then there was a detainer issued, which was served on the prisoner on September 7, 1988.

He had already been serving his sentence for some time.

This case–

Antonin Scalia:

Of course, that complaint can be filed before he knows… before the prosecutor knows that the person is even arrested anywhere else.

Right?

I mean, can’t that be so?

John B. Payne, Jr.:

–No, Justice Scalia, because… at least not in the–

Antonin Scalia:

All the statute says is whenever during the continuance of a term of imprisonment, there is pending in any other party State any untried indictment, information, or complaint.

That could have been filed long before the imprisonment.

Right?

It just has to be still pending.

John B. Payne, Jr.:

–Yes, I would have to agree with you on that.

Antonin Scalia:

Okay.

So–

John B. Payne, Jr.:

But still it comes from the prosecutor’s office, and the prosecutor doesn’t know–

Antonin Scalia:

–Well, yes, but he doesn’t know that he’s triggering… that he’s beginning anything under this detainer statute.

It seems to me the only State action that you can say consciously invokes the detainer statute is the filing of a detainer, and that… is your colleague incorrect that that could have been filed by a police department instead of by a prosecutor?

John B. Payne, Jr.:

–At least in Michigan, the complaint would have to be signed by the prosecutor.

Antonin Scalia:

No.

I’m talking about the detainer.

The detainer could be put on by a police department.

John B. Payne, Jr.:

My understanding of the detainer… now, the Court ruled… has ruled that a probation violation is not a detainer, and if I am not… it’s my understanding… now, I don’t work for the prosecutor’s office, and I’m not completely up on how this paperwork is processed.

But it’s my understanding that if we just have a warrant, that a warrant would not constitute a detainer.

It’s only after the prosecutor’s office issues a complaint or an indictment or a detainer that we actually have a document that is recognized under the IAD.

And I would like to suggest that, as Justice White has suggested, that when the prisoner has delivered the paperwork to the prison authorities, he has caused the request for detainer to be delivered.

And I ask the Court to rule in the only way that does not eviscerate the Interstate Agreement on Detainers.

If you rule in favor of the petitioner, you have a bright line test.

John B. Payne, Jr.:

The problem of competing requests for detainer can be dealt with in the way that the paperwork is handled, and the statute provides for a continuance when the prisoner unavailable.

It does not affect the… a prisoner-sent request for detainer, which was the problem in a number of cases because when you have a prisoner sending it himself, there are problems in proving when it was sent and proving when it was received.

But it’s no more difficult for the prosecutor to prove when the prisoner tended the request for disposition to the prison than it would be for the prisoner to prove that… when the prosecutor received it.

And I want to stress that we are talking about the prisoner tendering the request for disposition to the agent of the prosecutor who is initiating the detainer or the complaint or the indictment.

And the prosecutor, if he wants to do so, can exert perfect control over when the paperwork is processed, how it is processed, and what kinds of records are kept in order to ensure that it’s not lost along the way.

A very simple log will ensure that we don’t have the kinds of problem that we have here.

And–

Antonin Scalia:

Could I ask you another question about the text here?

If you look at subsection (a), I think one must acknowledge that there is some room for ambiguity in the shall have caused to be delivered as to whether you look to the place of causing… to the time of causing or the time of delivery.

But if you skip down to the end of that same section, the last sentence says the request of the prisoner shall be accompanied by a certificate of the appropriate official.

Now, that last sentence is obviously taking a viewpoint at the time of delivery.

Certainly at the time he makes the request, at the time he gives his request to the warden, it is not accompanied by this document.

It seems to me the whole paragraph is looking at it from the prosecutor’s receipt point of view.

Doesn’t it?

John B. Payne, Jr.:

–May I respond to that, Mr. Chief Justice?

Certainly.

John B. Payne, Jr.:

In this case, which is the only case I’ve had direct experience with, the certificate of inmate status was signed by Superintendent Broglin of Westville Correctional Center the same date that my client signed the request for–

Antonin Scalia:

In Fort Wayne.

In Indiana.

John B. Payne, Jr.:

–Yes, in Indiana.

And I can’t see that that would be a problem.

William H. Rehnquist:

Thank you, Mr. Payne.

The case is submitted.

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