Robertson v. United States ex rel. Watson

PETITIONER:John Robertson
RESPONDENT:United States, ex rel. Wykenna Watson
LOCATION: Superior Court, District of Columbia

DOCKET NO.: 08-6261
DECIDED BY: Roberts Court (2009-2010)
LOWER COURT: District of Columbia Court of Appeals

CITATION: 560 US 272 (2010)
GRANTED: Dec 14, 2009
ARGUED: Mar 31, 2010
DECIDED: May 24, 2010

ADVOCATES:
Elena Kagan – Solicitor General, Department of Justice, for the United States as amicus curiae, supporting the respondent
Jaclyn S. Frankfurt – for the petitioner
Robert A. Long, Jr. – for the respondent

Facts of the case

A victim who obtained a civil protection order (“CPO”) against John Robertson moved to hold him in criminal contempt for violating the order. A District of Columbia Superior Court convicted Mr. Robertson on three counts of criminal contempt for violating the CPO. Mr. Robertson moved to vacate the convictions, which was denied. On appeal, the District of Columbia Court of Appeals affirmed Mr. Robertson’s conviction.

Question

Is an action for criminal contempt in a congressionally created court brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States, constitutional?

John G. Roberts, Jr.:

We will hear argument next in Case 08-6261, Robertson v. United States, ex rel. Watson.

Ms. Frankfurt.

Jaclyn S. Frankfurt:

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

This case presents the question whether, under our Constitution, the power to prosecute criminal contempt in a Federal court rests solely with the sovereign.

The United States now agrees that the fact that a criminal offense may only be prosecuted by the sovereign is a foundational premise of our Constitution.

Because Mr. Robertson was prosecuted for criminal contempt in a private right of action, his prosecution was unconstitutional, a nullity in our view, and his convictions must be vacated.

Ms. Watson defends the lower court’s ruling that–

Antonin Scalia:

Excuse me.

He didn’t make that argument, though.

I mean, his — as I recall, his only complaint was that he had been promised that — that he wouldn’t be — he wouldn’t be prosecuted.

And that was his only complaint below, wasn’t it?

Jaclyn S. Frankfurt:

–His complaint below was that he had a plea agreement with the United States.

Antonin Scalia:

Right.

Jaclyn S. Frankfurt:

And that the only lawful or constitutional way he could have been prosecuted was in an action brought by the United States; that the local statute didn’t authorize a private right of action, and that the Constitution could not–

Antonin Scalia:

He made the constitutional claim below?

Jaclyn S. Frankfurt:

–He said below that — that a private right of action was neither lawful under the local statutes nor constitutional, and the parties responded that it was; and the lower court held it is authorized by local statute; it’s constitutional; in fact, this was a private right of action prosecuted by Ms. Watson on her own behalf and therefore your plea agreement fails.

We have never argued, if it was actually her prosecuting, that — that she was bound by the plea agreement.

We argued it can’t be her prosecuting, it can’t be under the Constitution, it can’t be under the local statute.

And if it’s the United States, then we are entitled to the benefit of the plea agreement we had with the United States.

The — Ms. Watson defends the lower court ruling that a private right of criminal action is constitutional, but really has mounted — excuse me — mounted very little attack on our constitutional argument that the Constitution contemplates that crimes are public wrongs brought on behalf of sovereigns.

Sonia Sotomayor:

Excuse me.

We have plenty of plea agreements jurisprudence that say if the Southern District of New York prosecutes someone and they sign a plea agreement and say, we’re not going to prosecute you for further crimes, we read that to mean that the Southern District of New York won’t prosecute you for further crimes.

We don’t read it that no other government agency is bound, who has jurisdiction over that criminal activity, that they are equally bound.

So why isn’t this case the same?

Assuming — that you’re making a broad statement, that this has to be brought in the name of the government.

Assuming that’s correct, does that mean that — why does that mean that both the U.S. Attorney’s Office and the Attorney General’s Office, which appear to be two different entities enforcing two different sets of law, why would both be bound?

Jaclyn S. Frankfurt:

Well, it’s important to clarify, because there is — there is a lack of — it is not parallel to the Federal system.

So even assuming — and I believe there is a circuit — that the Second Circuit says when the Southern District signs it’s the Southern District only, and the Third, Fourth, Eighth, and Ninth view it differently when something reads as broadly as this, which is the government.

In the District of Columbia–

Antonin Scalia:

Excuse me.

Antonin Scalia:

It’s not just the Southern District; it’s also what, the State?

Jaclyn S. Frankfurt:

–No.

No, I believe in the Second Circuit they might read something signed by the Southern District as not binding in the Eastern District.

Antonin Scalia:

I got you.

Jaclyn S. Frankfurt:

But in the District of Columbia, only the United States Attorney prosecutes criminal offenses of the type that occurred here.

There is a bit of a red herring here from this plea form.

This is a plea form that is used in Superior Court both in traffic offenses, which are the type of offenses that the District of Columbia prosecutes, and in criminal offenses.

And the cross-outs are just to conform the plea form, so that if you cross out D.C.> [“] it reads v. John Robertson> [“], which is how–

Antonin Scalia:

That did puzzle me.

I was wondering if there’s — if there’s coordinate jurisdiction.

Can the — can the District prosecute for crimes that the Attorney General can prosecute for?

Jaclyn S. Frankfurt:

–There is — there is not coordinate jurisdiction.

There is some — some provisions for consent if there are multiple offenses and one goes to one, one goes to the other.

But all the offenses we’re talking about here are United States offenses.

It was the United States’s position below that only the United States prosecutes contempt.

It was actually the Attorney General’s conviction in the lower court that it could not, representing the District of Columbia, prosecute contempt.

So that if we are construing the party to be the United States as the Solicitor General now asks — you know, Young and Providence Journal really apply, which is then the prosecuting entity is the United States, whether represented by a private prosecutor or by a United States attorney.

That’s a very different situation than different offices or — because the District of Columbia could not be prosecuting this case representing the — the Attorney General couldn’t be prosecuting this case representing the District of Columbia government.

That’s not in the picture as an option.

The — the case — if it’s prosecuted by a sovereign, it’s prosecuted by the United States, and the only argument that the Solicitor General is now making is that that wouldn’t bind if private prosecutor representing the United States, as happened in Young.

We have a local case that says when a private prosecutor in a criminal contempt case signs the plea agreement on behalf of the United States, it’s a binding plea agreement and binds the — the United States.

So the cross-out on the plea form, I believe, are a bit of a red herring.

The cross-out on the caption just makes it read United States v. John Robertson in a felony, which is the only way felonies can be prosecuted.

The cross-out on the signature line just makes it read the United States Attorney, who is the only one who can sign such a form in a felony case.

And it doesn’t define a particular prosecuting entity between Federal and State, or between two different Federal jurisdictions that have concurrent jurisdiction over, let’s say, mail fraud or something like that.

Ruth Bader Ginsburg:

Is this law unique to the District or do other States — I mean, the problem that they are trying to get a handle on is domestic violence.

And the prosecutors are busy prosecuting drug crimes and the rest.

So the District’s solution is, we will allow the abused person to initiate this criminal contempt.

Are there other States that have the same procedure?

Jaclyn S. Frankfurt:

I — the — the same procedure is a question of how that is defined.

Jaclyn S. Frankfurt:

If the question is whether there are other States that have a wholly private right of action where the person is construed as bringing it on her own behalf, not on behalf of a sovereign, in a criminal case, we have seen nothing–

Ruth Bader Ginsburg:

I — I mean, however you describe it in practical terms, are there other places that say, abused person, you can initiate this and you can have your lawyer present it, whether it’s on behalf of the State or — but just the practical of how you go through the motions; are there other States that allow the victim?

Jaclyn S. Frankfurt:

–Yes, there are other — there are other States that allow the complainant to either bring it to the attention of the court in the form of a request for an order to show cause and to actually prosecute as a private prosecutor, the way, let’s say, in Young, they would have characterized a private prosecutor–

Anthony M. Kennedy:

In criminal cases, because I — I — correct me if I am wrong, but my — my recollection is that orders to show cause for contempt in the civil — on the civil side occur frequently, and that allows a jail sentence in California I think of 5 days — and this is civil, because it’s coercive.

Now, you are talking about something different, I take it?

Jaclyn S. Frankfurt:

–I am.

I am talking about criminal contempt.

For instance, in the District of Columbia before this case came down there — we had an opinion, based on a local legislature’s determination, that said a beneficiary of a civil protection order may initiate a criminal contempt proceeding and may act as private prosecutor the way in — in Young this Court said as a matter of supervisory authorities they didn’t want interested parties.

There are jurisdictions, I believe, that allow for interested parties to take that role.

But the role is the role of the lawyer on behalf of the sovereign — sovereign, whichever sovereign it is, who is the ultimate party–

Antonin Scalia:

And, of course–

Jaclyn S. Frankfurt:

–and who can nolle the case.

Antonin Scalia:

–the States don’t have the same compulsion that the Federal Government has, which arises from the separation of powers.

And — which — which means that it is the executive that has the right to prosecute, and States are not bound by such a thing.

And they can perhaps allow private individuals to prosecute, whereas the only exception we have made from the — from the chief executive’s authority to prosecute is Young, which is a very narrow exception, dealing with the Court’s ability to protect itself from contempt of its orders.

And here the court had nothing to do with the appointment of this private party, right?

Jaclyn S. Frankfurt:

That’s absolutely true.

In our view to the extent there are any sort of exceptions from procedural rights or the normal process in contempt proceedings, they are narrowly tailored and governed by the doctrine of necessity.

And that — and so while Respondent’s counsel indicates, well, there are a lot of differences in contempt and just add one to this list, they make no attempt to ground that in the document of necessity, which is really the only thing that — that justifies any sort of procedural difference in the contempt context.

John Paul Stevens:

Am I right that the District has been following this procedure for quite some time?

Jaclyn S. Frankfurt:

Yes.

Well, I guess it depends on what the question what “this procedure” is.

The District–

John Paul Stevens:

Well, where a private party initiates, the beneficiary of an order of this kind, initiates a contempt proceeding against a person who violates it, and seeks a punishment for it, not just discontinuance.

Jaclyn S. Frankfurt:

–Yes.

The — the District had a case where it said it believed itself not bound by the supervisory authority of Young and it would allow interested parties to prosecute contempt in the domestic violence context only, not outside the domestic violence context.

And it has had cases prosecuted in that fashion since that time, which I believe was 1984.

But it has — it was not until this case that the issue arose because of the plea agreement to suggest that that person was prosecuting in her own name–

John Paul Stevens:

It doesn’t say to me that the plea agreement goes to the question of whether there is sort of an inherent violation of the Constitution by adopting this procedure at all.

Jaclyn S. Frankfurt:

–I — I–

John Paul Stevens:

I have trouble figuring out whether the plea agreement has any relevance to the kind of basic argument you are making.

Jaclyn S. Frankfurt:

–Well, we actually see two arguments, and maybe that’s — that we are making, which may be part of the confusion.

If this proceeding really was, as the lower court interpreted, the lower court — the lower court interpreted the local statute and what occurred and said: This really was a private right of action brought by Ms. Watson on her own behalf; no government party initiated it, controlled it; and we believe that is constitutional.

That’s what the lower court said.

If that’s what occurred, then we believe this Court could well say that is unconstitutional.

We — we defer to the lower court’s view of what occurred pursuant to the local statute.

This was a private right of action, the lower court told us so, and we don’t think that the Constitution can tolerate such a thing.

And, therefore, like in Gompers where criminal penalty was imposed, Gompers v. Buck’s Stove, a criminal penalty was imposed in an action between private parties, that judgment must be set aside.

She never had power to invoke the authority of the court in the first place.

That’s one way to view it.

The Solicitor General–

Sonia Sotomayor:

Or just to say the lower court was wrong–

Jaclyn S. Frankfurt:

–The lower court was wrong.

Sonia Sotomayor:

–on that premise.

Jaclyn S. Frankfurt:

Well–

Sonia Sotomayor:

We have another option, once we say they were wrong on that premise, to send it back and let them look at the second question, which is whether or not a private party can bring an action in the name of the sovereign.

Jaclyn S. Frankfurt:

–Well, I think that the second way to view it, as — as I was going to say, is what the Solicitor General of the United States now agrees — they thought below that it was Constitution, but they now agree that the Constitution cannot tolerate private criminal rights of action.

John Paul Stevens:

And if — if that’s true, they have been following an unconstitutional practice for about 25 years; is that right?

Jaclyn S. Frankfurt:

I believe–

John Paul Stevens:

And nobody thought about it in all this time?

Jaclyn S. Frankfurt:

–And certainly since, you know, since they made the argument to the lower courts.

John Paul Stevens:

Because it is done many, many times, as I understand it, over the years.

Jaclyn S. Frankfurt:

It was done many times, received — when the original — when the interested prosecutor decision was made, it was made on the same foundational premise as Young, which was let’s look and see if we are concerned about conflict of interest.

By the nature of asking, the court asking questions of conflict of interest, the court was thinking of the woman as representing the government.

Antonin Scalia:

This wouldn’t be allowed under Young.

I mean, if Young made anything clear is you couldn’t appoint as a prosecutor an interested party.

And here is the most the interested party of all.

Jaclyn S. Frankfurt:

That’s true.

It certainly would not be–

Antonin Scalia:

So don’t — don’t — don’t say that Young would have allowed it.

Jaclyn S. Frankfurt:

–No, no, no, no.

It certainly wouldn’t be allowed under Young.

But to finish my — my answer to Justice Sotomayor and Justice Stevens as to the second route: If this Court — what the Solicitor General I believe is asking this Court to do is to say it’s not constitutional to have such an action brought on behalf of a private party, therefore, construe it as an action brought on behalf of the sovereign.

This Court — if this Court goes that route, as opposed to deferring to the way the lower court described it, rather says this must have been on behalf of the sovereign, the sovereign was the United States, then the question is whether the plea agreement barred it.

The lower court said the plea agreement didn’t bar it because it was Ms. Watson’s; obviously it didn’t bar it.

Ms. Watson is not the United States.

But if in fact it was on behalf of the United States, then the question is does the plea agreement bar it.

We think that the–

Antonin Scalia:

Does — does the Justice Department concede that the sovereign here is the United States?

Does the Justice Department concede–

Jaclyn S. Frankfurt:

–I believe–

Antonin Scalia:

–that there can’t be a separate prosecutor from — from the Assistant United States Attorney and that is the prosecutor for the District of Columbia?

Jaclyn S. Frankfurt:

–I — I don’t want to speak for the Justice Department, but I do believe–

Antonin Scalia:

You don’t understand them to be saying that?

Jaclyn S. Frankfurt:

–I do believe that they — that they concede that the — the relevant sovereign is the United States.

Antonin Scalia:

Okay.

Ruth Bader Ginsburg:

Well, we can ask the government.

Jaclyn S. Frankfurt:

Yes.

And–

[Laughter]

But — but I believe that’s what their brief said.

They certainly said that below and I believe that’s what they are saying here because they are saying it’s prosecution on behalf of the United States.

They have given section 518 permission in this case because they believe that the United States is interested.

And so the District of Columbia’s role, oddly enough, all the way through this proceeding and then they withdrew at the merits stage in this Court, was they believed themselves representing the Petitioner.

They had never perceived themselves to be a public prosecutor.

And they in fact said in the lower court that they had no authority to prosecute contempt in the District of Columbia.

We agree with that.

Anthony M. Kennedy:

Have — have we had cases that said that Federal separation of powers principles are binding on territorial governments, for instance?

Jaclyn S. Frankfurt:

You know, I — I think that the question is — I don’t think — I disagree with the government, with Respondents that this Court has said it hasn’t.

I think in — I think Springer appears to apply separation of powers principles.

Jaclyn S. Frankfurt:

I think that Metropolitan Airport Authority used Springer in a separation of powers — a constitutional separation of powers analysis.

I think even if this Court looks at Whalen, which involves D.C., we will see a separation of powers analysis applicable to the District of Columbia.

Our–

Antonin Scalia:

Is the District a territory?

Jaclyn S. Frankfurt:

–I don’t think we are a territory, no.

No, it is Article I power that is being exercised.

Our focus hasn’t been entirely separation of powers, because in our view, you know, separation of powers is about the division of powers within government.

Here the problem was that the problem was that the — there is no authority under the Constitution to give the power to prosecute time, which has historically, way back, been an attribute of sovereignty and to take it entirely away from the sovereign at all.

Which is what — what the lower court finding was and what Ms. Watson now defends.

But we see a long, long history in the common law, in the English common law, in our common law, and in our constitutional jurisprudence of criminal actions being public wrongs prosecuted acting on behalf of the sovereign and criminal contempt falling right within that even more so, because this is indication of public authority, and to the extent there are any deviations from due process or separation of powers principles, they are justified only by the doctrine of necessity.

If the Court has no further questions, I will reserve my–

John Paul Stevens:

Could I — I have this question.

This — again, I’m trying to see the case in the broad — in the broader sense.

Supposing there is a civil lawsuit that’s settled and part of the settlement is a consent decree that would enjoin certain conduct, and the defendant then violates the decree and engages in the prohibited conduct.

Are you saying that the only person who could prosecute for contempt would be the sovereign?

Jaclyn S. Frankfurt:

–For criminal contempt?

John Paul Stevens:

Yes.

Jaclyn S. Frankfurt:

Yes.

Now whether — whether in some situations a private prosecutor could be appointed–

John Paul Stevens:

So, no, the question would be whether the lawyer for the — the party who entered into the settlement could bring a contempt proceeding against the adversary who had violated the settlement.

Jaclyn S. Frankfurt:

–On their own behalf?

I don’t — I don’t believe so.

Not a criminal contempt proceeding.

We are drawing a fairly rigid distinction between who the lawyer is and who the lawyer represents.

In our view, the party in a criminal action has to be the sovereign, the United States.

Now in the contempt context there is a limited exception for appointment of private prosecutors when the executive is declining to prosecute and the judiciary needs to vindicate its authority, and if it’s referred to the public prosecutor in the Young situation and the public prosecutor has declined but the judiciary still needs to vindicate its authority, it can appoint a private attorney to represent the sovereign.

But at root it’s the sovereign that is prosecuting, no matter who the lawyer is who is standing in the courtroom.

And the problem in this case was the holding of the lower court that said — that Ms. Watson — it was her case.

The prosecutor said it was her case; the lawyer said I can’t control her; she gets to make all the decisions.

John Paul Stevens:

What do you think the best authority from this Court for your basic proposition is?

John Paul Stevens:

What is your strongest case?

Jaclyn S. Frankfurt:

I think the strongest case is Gompers v. Buck’s Stove.

That says fundamentally — and I’m not quoting verbatim — but it says fundamentally erroneous as if a tort action of A — for battery of A versus B, a sentence of 12 months is imposed.

Well, that’s exactly what we have here, is we have a sentence of 12 months imposed for an action that our lower court said was solely between private parties.

John Paul Stevens:

You think Gompers is the best case?

Jaclyn S. Frankfurt:

Yes, I do.

Anthony M. Kennedy:

And what is your position and can you advise us — I know it’s not in your case — if there is a plea bargain in the Southern District of New York, does it — does bind, do you think, the prosecutor in the Eastern District?

What is your view of that proposition?

I know it’s not part of this case.

Jaclyn S. Frankfurt:

Right.

My view is this Court should go with the Third and Fourth Circuits who have — expressed — quite eloquently about the United States not being a bunch of separate fiefdoms, but that when the United States speaks, they speak for the government at large.

That is different than a case — of some of the cases that were cited, where it says the United States will make a recommendation to the Immigration and Naturalization Service, and then the criminal defendant comes back and says well, the INS is down, too.

And people looks at the agreement and say well, no one would have read that to mean that the United States included INS, because they were talking about a recommendation to INS.

But when the government has written in, my view is that — that the Third Circuit and the Fourth Circuit speak eloquently to that.

But I don’t see that that issue is presented here, given the context on which it arises in D.C. where this is conduct that should only be prosecuted in D.C. court by the United States.

It was going to be the United States Attorney or a private prosecutor representing the United States.

We have local law that says private prosecutors do sign plea agreements bind the United States and I would think the converse would be true.

I’ll reserve.

John G. Roberts, Jr.:

Thank you, counsel.

Jaclyn S. Frankfurt:

Thank you.

John G. Roberts, Jr.:

Mr. Long.

Robert A. Long, Jr.:

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

I think it’s very important to be clear about what is properly before the Court.

This started out as a case about a plea agreement, and the Petitioner’s claim is that his plea agreement with the U.S. Attorney barred his criminal contempt proceeding.

He has not made the claim that a private interested party may not bring a criminal contempt proceeding.

He has said–

John G. Roberts, Jr.:

Yes, but the argument is that because a private interested party can’t bring it, the party is bringing it on behalf of the United States and his plea agreement therefore is with the United States.

Robert A. Long, Jr.:

–Well, I mean if I could, Mr. Chief Justice, there are I think several questions in the case, and some are actually no longer in dispute so that will help to simplify a very complicated matter a little bit.

One is according to the question presented, whether the criminal contempt proceeding for violating a civil protective order must be brought in the name of the United States, so actually have United States in the caption.

And I think now all the parties agree, there is no constitutional requirement that the caption of the case actually say “United States”.

Robert A. Long, Jr.:

So to the extent that answers the question about what does the plea agreement cover, we don’t have a dispute about that.

There’s no constitutional reason why the court of appeals has to be reversed.

So the other part of the question, as it’s framed in the question is does it have to be brought pursuant to the power of the United States.

That’s not language that is in the court of appeals opinion–

Sonia Sotomayor:

I — I’m not sure I understand your point.

Yes, the caption doesn’t have to be styled in a particular name–

Robert A. Long, Jr.:

–Yes.

Sonia Sotomayor:

–But the prosecuting person–

Robert A. Long, Jr.:

Yes.

Sonia Sotomayor:

–the person whose name is listed is acting for someone.

Robert A. Long, Jr.:

Yes.

Is the real party in interest the United States?

Sonia Sotomayor:

Exactly.

Robert A. Long, Jr.:

And I agree, that’s mostly what we have to talk about this morning, but I’m trying to bracket it with issues that are really not properly in dispute here.

One is, the caption is not a constitutional issue.

Another is, as Petitioner has said over and over again, the actual ability of a private, interested party, the question that was left open in Young, under the Constitution, under the Due Process Clause or under separation of powers, is that constitutional for Ms. Watson to even do this, as the representative of the United States or on her own behalf?

They have said over and over again, they are not raising that question.

In their reply brief to the court of appeals, they say they in no way challenge that.

In their post-argument brief to the court of appeals, they say the assertion that they are challenging it is just wrong.

In their supplemental brief to this Court at the cert stage, they say they — they decline to raise that question.

And even in their reply brief here, they say they have not raised the issue left unresolved in Young.

So that is a very important issue.

And I think that issue is really–

Sonia Sotomayor:

Can you define what you see as that issue?

What’s the issue that you think–

Robert A. Long, Jr.:

–That’s the issue of whether a private interested party, either on their own behalf or as the representative of the sovereign, can bring a criminal contempt action.

Antonin Scalia:

What do you mean?

Not on their own — not on their own behalf.

I mean, that — that’s a quite different issue.

That’s the issue that was decided below, whether–

Robert A. Long, Jr.:

Yes.

Antonin Scalia:

–whether a private interested party can be authorized to bring the suit on behalf of the sovereign.

Robert A. Long, Jr.:

Yes.

What I’m trying to do is narrow down to–

Antonin Scalia:

I understand, but you — you covered two things.

You said whether a private individual can bring it on his own.

Robert A. Long, Jr.:

–Right.

Antonin Scalia:

Or whether a private individual can be appointed to bring it on behalf of the sovereign.

Robert A. Long, Jr.:

Yes.

Antonin Scalia:

And I thought it was only — only the second of these that you say is out of the case.

You say the first is out of the case, too?

Robert A. Long, Jr.:

No.

Antonin Scalia:

No.

Robert A. Long, Jr.:

I think — I think the — all they have conceded is that for purposes of this case, we are going to assume that — well, I may have given you the wrong answer to you — we are — they have said over and over again, we assume, that a private interested party can bring a criminal contempt proceeding.

And so we think, given the importance of–

John G. Roberts, Jr.:

As representative of the sovereign?

Robert A. Long, Jr.:

–Well, I — I think that question is fairly before the Court.

John G. Roberts, Jr.:

And nobody doubts — I didn’t think it was at issue that the United States, rather than operating through the Assistant U.S. Attorney, can appoint you to handle the prosecution.

Robert A. Long, Jr.:

Exactly.

John G. Roberts, Jr.:

And that’s what they don’t dispute, right?

Robert A. Long, Jr.:

Maybe a different way of making the–

John G. Roberts, Jr.:

I’m sorry, that’s — they don’t dispute that?

That’s the point you were trying to make?

Robert A. Long, Jr.:

–Yes.

John G. Roberts, Jr.:

Okay.

Sonia Sotomayor:

–I’m sorry, repeat it for me.

I sort of–

Robert A. Long, Jr.:

The point is, they are not disputing, and they’ve said over and over again they’re not disputing that a private, interested individual, like Ms. Watson, the individual in this case, can bring this proceeding.

Now–

Sonia Sotomayor:

–On whose behalf?

Sonia Sotomayor:

That’s the issue that I’m trying to–

Robert A. Long, Jr.:

–And the issue that I think is before the Court is, would that be as a representative of the United States or would that be as a private person?

Sonia Sotomayor:

–Okay.

Are you saying that it’s out of the case that if we say it’s on behalf of the United States, they are not challenging that they can do that?

Robert A. Long, Jr.:

Yes.

I think they have not challenged that.

Sonia Sotomayor:

That’s so — so if we say they can act on behalf of the United States, you–

Robert A. Long, Jr.:

Yes.

And I will say, there is an oddity to this, because in many ways, the bigger question is the question that the Court left open in Young, since that’s not been properly raised, not properly decided, by the court below, not properly briefed, it is a little odd to be answering this other question of: Well, assuming that the private party can do this, would it be in the interest of the United States?

Stephen G. Breyer:

So in other words, if, in fact — you agree or don’t agree, I don’t know — but the government says and they say, the government of the United States has here — and it can, under the Constitution, delegate to a private person the authority to prosecute.

Robert A. Long, Jr.:

Right.

Stephen G. Breyer:

There is a big argument against that.

Robert A. Long, Jr.:

Yes.

Stephen G. Breyer:

The argument is: This would be the one person you can’t delegate it to because they are very biased.

Robert A. Long, Jr.:

Right.

And my–

Stephen G. Breyer:

And that argument, you say, is not in this case.

Robert A. Long, Jr.:

–Exactly.

Exactly.

So–

Stephen G. Breyer:

Okay.

So now we have what is in the case, which is the question of whether, leaving that argument out of it, did they hear or–

Robert A. Long, Jr.:

–So let me now address the point that: Is it a constitutional requirement?

No matter what the legislature says, that any criminal contempt proceeding must be brought in the interest of the sovereign, not in the interest of a private party.

That may seem like a fairly obvious proposition, but I want to submit it’s actually much harder than the Court actually should agree.

Antonin Scalia:

I don’t know what you mean by “in the interest of”?

On behalf of?

Is that what you mean?

Are you saying — you acknowledge here that it is on behalf of the United States but you say it doesn’t have to be in the interest of the United States, is that it?

Robert A. Long, Jr.:

Well, the language that the court of appeals used is in the interest of the United States.

Robert A. Long, Jr.:

Who is the real party in interest?

Antonin Scalia:

I don’t know what that means.

Are you asserting that this suit has been brought on behalf of the United States by your client?

Robert A. Long, Jr.:

No.

I want to make an argument that actually, the D.C. legislature and the D.C. courts are constitutionally permitted to determine that in this specific situation, the interests of the individual actually predominate over the interests of the government and there is not a constitutional problem.

Samuel A. Alito, Jr.:

Why is that even relevant?

Why do you even get to that?

Isn’t the question what the parties understood the plea agreement to mean?

Robert A. Long, Jr.:

Well, I agree with you completely Justice Alito.

The ultimate question is exactly what you say.

And we think under any reasonable construction of the plea agreement, it does not bar this proceeding.

As Justice Stevens said, these have gone on for.

Stephen G. Breyer:

–It’s highly relevant, I think, because I think you would you like to make the argument, which I would like to hear, is that: Forget the United States.

The Constitution permits this woman to bring the case as a private citizen.

Robert A. Long, Jr.:

Yes.

Stephen G. Breyer:

Now, if you are right about that, the plea agreement drops out.

Robert A. Long, Jr.:

Yes.

Stephen G. Breyer:

Because nobody says made a plea agreement with her.

Because that is the argument you want to make at some point.

[Laughter]

Robert A. Long, Jr.:

I will make the argument, although if I am wrong, I still think the plea agreement doesn’t bar this prosecution.

Here’s–

Samuel A. Alito, Jr.:

But, well — well, with respect, even if the Constitution permits this, if the parties understood the plea agreement to mean that this was going to be barred, then why isn’t that the end of the matter?

Robert A. Long, Jr.:

–Well, it’s what a reasonable person would have understood Justice Alito, when the plea agreement says, crosses out District of Columbia, crosses out corporation counsel, and we are now all agreed that Ms. Watson, in her own name, can bring this proceeding under a statute that authorizes it and has for 20 years–

Samuel A. Alito, Jr.:

And I suppose the argument could be that the — that the government has no authority under D.C. law to enter into such an agreement, as well require these two–

Robert A. Long, Jr.:

–Well, that’s — now we are getting into statutory issues, Justice Alito.

I mean, this case is a constitutional case, with no such statutory issue was raised or decided by the court below.

Typically, this Court treats the D.C. court of appeals as — as final, as a practical matter, on issues of D.C. law.

So, I think that is going off in a completely different direction.

But on the issue–

Antonin Scalia:

Gee, I have really lost you.

What is going off in a different direction?

Really?

[Laughter]

Robert A. Long, Jr.:

–The issue is, it’s a matter of D.C. statute.

There was some problem with this prosecution.

I mean, that’s really something else.

Antonin Scalia:

Well, okay.

You’re — you’re asserting that this agreement with the United States Attorney cannot cover this case because your client was not acting on behalf of the United States, but rather in her private capacity.

Robert A. Long, Jr.:

Yes, and let me make that argument.

Antonin Scalia:

And that’s perfectly okay, right?

Robert A. Long, Jr.:

If — if that is a constitutional requirement.

It is in Blackstone, we admit that, for crimes in general, but we are talking about contempt.

But if it’s a constitutional requirement, it has got to be in the Constitution someplace.

Petitioners say it’s because the Constitution uses words like “crimes”.

Well, you know, the Court has been very cautious about implying common law rules, constitutionalizing common law rules, because of words in the Constitution–

John G. Roberts, Jr.:

Well, one way you can find it in the Constitution is that we have built a body of law about the obligation of people bringing prosecutions that wouldn’t fit within your situation.

For — what are the Brady — what’s the Brady obligation of your client?

Robert A. Long, Jr.:

–Well, if you will bear with me, I think the Constitution does answer questions like the Brady question, but it’s not the penumbras and emanations of words like crimes.

It’s because–

John G. Roberts, Jr.:

What are the Brady obligations of your client?

Robert A. Long, Jr.:

–Well, I — I think because the way — the way this Court has defined criminal contempt does not look to the interest of the party versus the interest of the sovereign; in fact, the Court has said over and over again in Bagwell and Hicks and other cases that in all criminal contempt cases, civil and criminal, to some extent the interest of the sovereign is that–

John G. Roberts, Jr.:

What — what are the Brady obligations of your client?

Robert A. Long, Jr.:

–Due process says this is a criminal proceeding, Your Honor, if I can explain in a minute, and therefore, all the due process rights of a — for a petty criminal offense apply.

And I would say that–

Sonia Sotomayor:

–So your client has to provide the — her husband a lawyer?

Who has to provide a lawyer in this criminal contempt proceeding?

Robert A. Long, Jr.:

–D.C. courts do provide lawyers if the — to the defendant.

I mean a very important point here is these are often pro se cases, where the woman comes in to say — or the petitioner; it’s usually a woman, it doesn’t have to be–

Sonia Sotomayor:

I don’t know if you have answered the Chief’s question.

Sonia Sotomayor:

He has asked to have a lawyer; is there a Brady obligation?

What are the constitutional entitlements–

Robert A. Long, Jr.:

–They — they come from the Due Process Clause.

And if I could have just the Court’s indulgence for one minute, I think the answer to a lot of these questions is not looking to penumbras and emanations from crimes, but looking at this Court’s decisions deciding what is criminal contempt and what is civil contempt.

And as I started–

Anthony M. Kennedy:

But can we get to the Brady?

That was one of the questions I had, too.

Let’s say we have the — we’ll call it a private person as prosecuting.

Robert A. Long, Jr.:

–Right.

Anthony M. Kennedy:

Does that person have a — a right to look at all the government files to see if there is any exonerating evidence?

Robert A. Long, Jr.:

Well–

Anthony M. Kennedy:

I mean, how does it work?

That’s what we want to know.

Robert A. Long, Jr.:

–This is a determinate sentence, so under this Court’s cases, without regard to whether the government’s interests are — take precedence over the private interests, it’s criminal.

So you get all the rights that the Due Process Clause gives you in a–

Anthony M. Kennedy:

But how does it work?

Does — does the — does the person who is bringing this prosecution have the right to go in and — and look at the — all — all of the files that the police have–

Robert A. Long, Jr.:

–Well, right.

Anthony M. Kennedy:

–and that the prosecutor has?

That’s the only way Brady would work.

Robert A. Long, Jr.:

In this case the court said that the Brady rights did apply.

I mean, this is another reason why I would urge the Court not to try to decide a number of very important questions about a very important system that has not really been properly presented in D.C.–

Stephen G. Breyer:

What do we do about that?

Because it’s very hard for me to focus on the case — the issue you want me to decide–

Robert A. Long, Jr.:

–Well–

Stephen G. Breyer:

–without thinking about the one you don’t.

Robert A. Long, Jr.:

–Yes.

Stephen G. Breyer:

And the reasons, as I have categorized this — the–

Robert A. Long, Jr.:

There are — it may be that this is the wrong case.

Stephen G. Breyer:

–So what do — so what do we do?

Stephen G. Breyer:

I mean, I think of this as like Aeschylus; you have the Furies gradually giving way to justice.

Robert A. Long, Jr.:

Yes.

Stephen G. Breyer:

I mean, private–

Robert A. Long, Jr.:

Well–

Stephen G. Breyer:

–vengeance is out and justice is in, and we have 3,000 years of that, and they are all going to be variations of that theme and we could think of 100 arguments.

Boasting.

Then is this special?

Robert A. Long, Jr.:

–Well–

Stephen G. Breyer:

Well, before I can answer that question, I would like to know whether the government could appoint the private person.

After all there is a check — there is a check against the total Furies, it’s the government doing it.

Now you say no, the government can’t do it, so — but they can do it on their own.

Maybe — I don’t know.

Robert A. Long, Jr.:

–Well–

Stephen G. Breyer:

How do I get my — how do I begin to answer these questions bound together in my mind in some partial way?

Robert A. Long, Jr.:

–Well, part — part of the answer is, of course, that the court exercises control.

Another part of the answer is that the D.C. legislature, which is exercising delegated legislative authority from Congress, has determined that this is in the public interest.

And you know, the third part of it is that we are not granting these private individuals excessive authority.

Stephen G. Breyer:

But you want to do that.

You see, so there is no control.

You are saying we want the private individuals to have the authority to bring criminal contempt; they are on their own; they decide it.

The government has nothing to say about this.

It’s a totally private matter.

Robert A. Long, Jr.:

No, but — but you know, D.C. tried for over a decade to do this with public prosecutors, and there just were not enough resources.

So what we are allowing here, if I could take it a stop–

Antonin Scalia:

Some problems have no answers.

I mean, that doesn’t prove anything.

Robert A. Long, Jr.:

–Well — there may–

Antonin Scalia:

Do you think that Congress could — could set up a private organization to expend Federal funds — we are going to abolish the Department of Education.

And we are going to give its function to a private organization that will take care of all those things.

No good, right?

Robert A. Long, Jr.:

–Well, but there is a long, long tradition of having private individuals undertake prosecutions of crimes.

I mean, so what you’re saying–

Antonin Scalia:

On — on behalf of–

Robert A. Long, Jr.:

–On behalf of.

Antonin Scalia:

–on behalf of the executive.

You are looking for a section of the Constitution; I suggest Article II, Section 1, the executive power shall be vested in the President.

Robert A. Long, Jr.:

Well, but–

Antonin Scalia:

And just as the executive power includes the power to expend funds appropriated by Congress, so also the executive power except in the — in the instance of necessity acknowledged by Young, which I think was wrongly decided anyway — except in that one narrow instance, the — the power to prosecute belongs to the executive.

Robert A. Long, Jr.:

–But — but Justice Scalia, we are dealing with the District of Columbia.

The Constitution does not assign any powers over the District to the executive or to the judicial branch.

Stephen G. Breyer:

All right.

Now the State of California, trying to save money, say we have a very good idea.

We are going to pass one law, abolish all the prosecutors’ offices and say wherever there is a victim of crime, that victim will bring the prosecution.

Now you really are back to the Furies.

Is that constitutional?

Robert A. Long, Jr.:

Well — and again, there is abundant historical precedent for that.

Stephen G. Breyer:

Yes, there was, before — before Aeschylus.

Or whatever.

But the–

[Laughter]

You would say that that is constitutional–

Robert A. Long, Jr.:

Well, if–

Stephen G. Breyer:

–to have a statute that all criminal prosecutions would be brought by victims, period?

Robert A. Long, Jr.:

–Well, I think there would be today serious due process problems to work through with that sort of system.

Stephen G. Breyer:

All right.

If there are, then why aren’t there the same here?

Robert A. Long, Jr.:

Well, I would also say the Framers would have understood that to be a perfectly normal system.

They would not have thought it was unconstitutional, because private prosecutions were — were common at the time of the Framers.

Antonin Scalia:

Oh, I don’t think that’s right.

Private prosecutions were common at the time of the framing?

Antonin Scalia:

You have got to go back a long way before they were common.

Robert A. Long, Jr.:

Well, I mean there — that issue is debated in the briefs and I think it was less common in the colonies in the United States than it was in Britain, but certainly wouldn’t have been regarded as — as unconstitutional.

But this is — now we are back to the question that I say really the Court should not decide because it was never properly — whether this can be done by a private individual at all, even as the representative of the government.

So I don’t think you should get into that.

But if you do–

Sonia Sotomayor:

–I’m not sure why — how we can avoid it.

Robert A. Long, Jr.:

–Well, you could wait for a case that presents it — that properly presents it, where it can be decided–

Sonia Sotomayor:

Well, this case properly presents the argument that a private party can’t bring a criminal prosecution on their — in their own — perhaps their own name, they can, but on their own, in their own interest.

It always has to be a government interest.

That’s what the argument is.

Robert A. Long, Jr.:

–Yes.

And that — that is something that the Court we think could properly decide.

But Justice Breyer, I would–

Sonia Sotomayor:

You are saying the answer to that is, no, they can bring a claim in their own name?

Robert A. Long, Jr.:

–Yes, we — we are arguing two things.

They can bring it in their own name, that’s not unconstitutional; and they can certainly — they could certainly bring it as the representative of the government, that is also constitutional.

And — and so there are two ways–

Sonia Sotomayor:

No, no.

But the last question is the one that they are disputing; it can’t be in their own interest.

Robert A. Long, Jr.:

–Yes, absolutely.

Sonia Sotomayor:

And you are saying it can.

Robert A. Long, Jr.:

Yes.

Sonia Sotomayor:

Answer why.

Robert A. Long, Jr.:

Because the D.C. Council said they could do it.

So we have a legislature that has said that the interest of a private party here takes precedence, and that is not an unconstitutional determination by the legislature.

In this Court’s criminal contempt cases, the Court has said we don’t look to whose interest is paramount or what this — the legislature or what the Court says whose interest is paramount.

We recognize that both kinds of contempt, civil and criminal, further the sovereign’s interest in vindicating the court’s orders and further the private interest in seeing that that order which applies particularly to that party is followed.

So you don’t look to that at all.

You just look to the nature of the punishment.

And if it’s a determinate sentence versus a coercive sentence, then it’s criminal.

Robert A. Long, Jr.:

So that answers all the questions about Brady and what sort of due process–

Stephen G. Breyer:

You might — you might — you might say this.

To answer your question that is here, there are a couple of ways of doing this.

One way you would say is, well, don’t worry about this so much.

If the answer is no, you can still bring your private prosecution but you have got to get government permission, because you are doing it in the way of the government.

But if the answer to the question is if you can’t do either, they you might say, then why wouldn’t you say why well, aren’t we back to the Eumenides, and the answer is going to be this is say contempt.

Contempt is special.

I don’t know whether either or both of those ways would work.

So what would you think, since the government has changed its position, of sending this back so some of these things can be worked out?

At least we would have some opinions that would help us.

Robert A. Long, Jr.:

–Well, you know, I think that would be an unfortunate result in the sense that, you know, the plea agreement in our view doesn’t prevent this prosecution on any reasonable interpretation.

You know, we also think for the reasons I have been trying to spell out that there is no real basis for the Court to hold that it is unconstitutional, only in the criminal contempt setting, for the D.C. legislature to find that the private interest here justifies allowing the private party to bring this action but it’s still criminal.

Because it’s a determinate sentence, you get all the due process just as you would as — if the government brought it.

You get all the due process rights which in fact the defendant did get here.

John G. Roberts, Jr.:

Well, unless you think it’s a violation of due process for an interested party to be able to criminally prosecute someone at their — at their discretion.

Robert A. Long, Jr.:

Well, and that — and, you know–

Antonin Scalia:

You want to plea bargain with a — with an interested party?

Robert A. Long, Jr.:

–Well, but Mr. Chief Justice and Justice Scalia, I mean, this is a system that is in all the States.

It’s not just domestic violence.

It’s child custody.

It’s child support.

The amicus briefs say this is–

Anthony M. Kennedy:

Criminal — criminal contempt prosecution or civil contempt prosecution?

Robert A. Long, Jr.:

–Well — well, but — yes.

Criminal contempt for violation of court orders about domestic violence, about child custody, about child support.

John G. Roberts, Jr.:

Those are in every state?

Anthony M. Kennedy:

Well, there can be order to show cause, but you are saying that every state allows a private person to have a criminal prosecution for criminal contempt?

Robert A. Long, Jr.:

Well, the — the amicus briefs at — 19 allow — at this point, 19 allow you to file a motion.

These things are typically begun by motion, not a charging document.

And just say–

Anthony M. Kennedy:

Well, a — a motion is different.

Robert A. Long, Jr.:

–Yes.

Anthony M. Kennedy:

Then the courts decide — then the court decides based on the position of the defendant, of the person who is charged with contempt–

Robert A. Long, Jr.:

Yes.

Anthony M. Kennedy:

–whether or not to proceed.

And the court certainly can appoint a prosecutor, and does in many states.

Robert A. Long, Jr.:

Absolutely, Justice Kennedy.

And that’s really what we’re asking.

I mean, if you think about these situations, many thousands of cases, most of these individuals have no lawyers.

They are pro se.

A civil order is entered, about domestic violence, child custody, child support.

It’s violated, or the individual thinks it’s violated.

What do they do?

They come to the court on their own, so now they are pro se, so now maybe we’re in the Furies and Young and Province.

But this is — to make the system work, we at least, I submit, have to allow those individuals to come to the court and file a motion, even though they are interested in, say, somebody’s violating the order, Judge, you should do something about it–

Stephen G. Breyer:

Oh, well, that’s a different matter.

Robert A. Long, Jr.:

–No.

No.

Stephen G. Breyer:

That’s — that’s — why isn’t it a different matter?

Robert A. Long, Jr.:

I mean, that’s what — that’s what happened in this case.

It so happens this woman was represented by the D.C. Attorney General, who is a public prosecutor.

Stephen G. Breyer:

Okay, so now you are into the question of what counts as a prosecution.

Robert A. Long, Jr.:

Yes, yes.

Stephen G. Breyer:

And there again, I am at sea.

I don’t know what the authority is.

Robert A. Long, Jr.:

Well, if I could — if I can just do it step by step.

I mean, in this case and in tens of thousands of other cases, the first step is just allowing that motion to be filed.

And if you don’t allow that, you say that’s unconstitutional, the entire system will — will blow up.

So if you at least get to that, then we say, well — the judge looks at it and says, well, civil’s not appropriate here because the violation is over; if I am going to punish this, it’s going to have to be a determinant sentence, that’s criminal.

At that point, under this Court’s cases, due process requires all sorts of things to protect the defendant.

Robert A. Long, Jr.:

He gets a lawyer, or the other — now, it would say, you don’t have — the Constitution doesn’t require that there be a lawyer appointed to prosecute every one of these, or that would be my submission.

So let the individual come in and file a motion.

Let the court come in and look at it.

Don’t require a prosecutor to be appointed, interested or disinterested.

And then at that point, if the Court is exercising sufficient control over this, to say if — if the person, the woman, happens to have that lawyer, that lawyer has to just stand aside and can’t play any role–

Antonin Scalia:

Is that the situation here in D.C.?

When the woman comes in, can the judge look it over and say, Ah, you don’t have anything here; I’m not going to — I’m not going to allow you to go ahead.

Robert A. Long, Jr.:

–Well, you know, we have no record on any of this, Justice Scalia, because it was not–

Antonin Scalia:

How do you understand — how does the statute read?

As I understand it, it’s not up to the judge to decide whether there is enough there to allow her to go forward or to appoint somebody on his own.

She is the prosecutor.

It’s up to her whether there is–

Robert A. Long, Jr.:

–The way the statute and the court rules read is you file a motion, not an indictment or an information, a motion to hold the person in contempt.

As I understand it, it is set down for a hearing.

I mean, that’s sort of the way the family court works.

So they will have a hearing and the judge will look at it, will see what’s going on, and–

Antonin Scalia:

–A hearing on whether she can prosecute or a hearing on — on whether he’s going to be guilty or not.

Robert A. Long, Jr.:

–You know, I am very uncomfortable to spend — I have gone and observed one of these and I’ve talked to one of the judges, but none of this is in the record, Justice Scalia.

I mean, I think what they typically do is try to figure out what it’s about, whether it’s civil or criminal.

If it’s criminal, they would appoint a lawyer for the defendant and then they would take it from there, but this is a–

John G. Roberts, Jr.:

But can your private prosecutor, however you want to describe her, could she enter into a plea agreement with the defendant?

Robert A. Long, Jr.:

–Well, they can — they can agree to withdraw.

John G. Roberts, Jr.:

No, she said you could be subject to you 180 days; I will agree, and you’ll plead guilty to 30 days.

Robert A. Long, Jr.:

Again, none of this is in the record.

My understanding is, that doesn’t happen, although I am honestly not sure.

I think it would be up to the Court to — to–

Antonin Scalia:

Or pay $1,000 to your victim, which is me.

Robert A. Long, Jr.:

–Well, you know, I have no information about whether that sort of thing happens or how the Court would treat it.

But I think my basic point is, you know, this is a very important system, not just to the District of Columbia, but to the whole country.

And the details–

Stephen G. Breyer:

I accept that–

Robert A. Long, Jr.:

–And the details matter.

And to change it to a system where we now say there have to be–

Sonia Sotomayor:

But a specific country — this is the point Justice Scalia was making — the rest of the country, it’s a state system.

Robert A. Long, Jr.:

–Well, but — but D.C., Your Honor–

Sonia Sotomayor:

And — and there–

Robert A. Long, Jr.:

–is like a state in the sense that separation of powers–

Sonia Sotomayor:

–Well, but that’s — that’s the question.

That’s the question that I don’t know that we have enough information in the record about.

Is this really — is this prosecution like a state?

That’s the Solicitor General’s position, which is, it’s on behalf of the local government, not on the behalf of the Federal government as a sovereign.

I think that’s what this case speaks to.

Robert A. Long, Jr.:

–If you look at them — if you look at this Court’s decision in Palmore.

I mean, we are dealing with an Article I court of the District of Columbia, not an Article III court, to the extent that the sovereign’s interest is at stake here.

Let’s keep the interest of that Article I court.

Stephen G. Breyer:

–Is there somewhere I can look to see what happens?

All I can find in the long law is that a violation of the order is a contempt.

Fine; no problem.

And then the only word about the Petitioner, it says the Petitioner is entitled to relief under this chapter, which contains about 50 different things.

And it doesn’t say what kind of relief.

It doesn’t say how you get relief.

It doesn’t say if you are just asking — all those things you raised.

So how do I find out actually what is in the system.

Robert A. Long, Jr.:

You mean the relief for contempt?

Stephen G. Breyer:

It doesn’t say that.

It says the earlier part of this statute which goes on for six pages in an earlier part of this statue, which goes on for six pages, seven pages.

It says, a Petitioner has a right to seek relief under this subchapter.

Now, that contains civil contempt.

It contains how you get protective orders.

It contains a lot of things that are absolutely noncontroversial.

Stephen G. Breyer:

So I am trying to figure out: What is the system?

Robert A. Long, Jr.:

Well, I think — I think the honest answer is, Justice Breyer, you can find some of these things by looking around, but since we’ve been talking about issues that were not properly litigated and not decided and we do not have a well-developed record, some of these things are just not going to be available.

And again, we think — you know, this case started out about a plea agreement.

It’s really a small case.

We are now talking about these great big issues.

We think the plea agreement doesn’t bar this under any reasonable construction, and so the right result is either to dismiss the cases as improvidentally granted or to affirm.

John G. Roberts, Jr.:

Thank you, counsel.

General Kagan.

Elena Kagan:

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

There are two questions, properly raised, in this case.

Petitioner is right about one.

Respondent is right about the other and the disposition.

There are a couple of questions that are extremely interesting — I can see why the Court is interested in them — but were not properly raised in this case, and this Court should not decide them.

What Petitioner is right about is that in this criminal contempt action, Ms. Watson, the Respondent, was and must have been exercising sovereign power, that she was acting as a state actor for purposes of the Constitution.

What Respondent is right about–

Sonia Sotomayor:

Whose state power was she acting on behalf of?

Elena Kagan:

–The way we understand this, Justice Sotomayor, is that Respondent was exercising sovereign power on behalf of the Article I court, the D.C. court, which of course is partly a local court, but is exercising power whose initial source, original source, is Congress.

So she is exercising sovereign power in order to vindicate the Court’s order, the order of — of restraint.

Antonin Scalia:

Courts don’t have the power to incarcerate people.

I mean, if you are prosecuting for a criminal offense, you are exercising more than the power of the Court.

Elena Kagan:

I — I don’t believe that is the case, Justice Scalia.

Imagine Respondent essentially doing the same function that an appointed person would do in Young.

There, of course, the court appointed the person to prosecute contempt.

Here Respondent is essentially doing the same thing, is acting in order to prosecute a contempt on the court and to vindicate the–

Antonin Scalia:

But nobody asserted in Young that the prosecutor appointed by the court was only exercising the power of the court.

Surely it was the power of the government that the — that the prosecutor was exercising.

Now, the court was given the power to appoint that prosecutor, but I would think it’s extraordinary to say that there’s nothing but the court’s power in play.

Elena Kagan:

–Well, the court is surely part of the government, and in the end this is power of the United States.

The court is created through power of the United States.

It’s an Article I court.

Elena Kagan:

And so Respondent is no doubt exercising sovereign power and exercising it on behalf of the United States ultimately.

Antonin Scalia:

Then why doesn’t an agreement by the United States not to prosecute carry the day?

Elena Kagan:

Yes, so this goes to the second question, in which I think Respondent is right.

And the reason is that when a single U.S. Attorney’s Office says that the government will decide to drop a certain set of charges, that U.S. Attorney’s Office we believe is — is speaking for itself, unless there is some indication that it is speaking more widely in such a way that will bind other parts of the government.

John G. Roberts, Jr.:

That’s — that’s absolutely startling.

The different U.S. Attorneys all work for your boss, right?

They work for the Attorney General.

How can one part of the Attorney General agree to something that doesn’t bind the other part of the Attorney General?

Elena Kagan:

The United States Government is a complicated place and the fact that–

John G. Roberts, Jr.:

I take your word for it.

[Laughter]

Elena Kagan:

–and the fact that the Southern District of New York agrees to do one thing does not bind, for example, the INS, does not bind the–

John G. Roberts, Jr.:

Maybe or maybe not, but surely it binds the New Jersey U.S. Attorney.

If you — just think about it.

The — the U.S. Attorney from the Southern District says: Look, you agree to go to jail for 10 years and I will drop these 3 charges.

Done.

Then the U.S. Attorney for New Jersey can come in and prosecute under those three charges?

Elena Kagan:

–Assuming that the U.S. Attorney in the second office has jurisdiction and assuming that the plea agreement does not say anything to suggest that it should be read more broadly, I think the answer is yes.

John G. Roberts, Jr.:

Well, how do you get — I mean, you are a defendant.

You have to go to all more than 50, all the U.S. Attorney’s Offices and say, will you agree to this and get everybody to sign off?

Elena Kagan:

Well, Mr. Chief Justice, even if you are right I think that we prevail.

There are two views in the court system.

One is the Second and Seventh Circuit and they take the position that I’ve taken, which is that the default position is that the contracting party binds only the contracting party and that the plea agreement needs to say something in order to apply more broadly.

John G. Roberts, Jr.:

It can’t do that.

If the U.S. attorney in New Jersey has the authority to prosecute this, the U.S. Attorney in New York can’t say, oh, and by the way I bind all the other U.S. Attorneys.

Elena Kagan:

Well, the U.S. Attorney in New York could — presumably that U.S. Attorney will know who else might have jurisdiction over the underlying conduct and would go and get an agreement from those other U.S. attorneys.

But unless the U.S. Attorney does that, under one approach the agreement bars only the contracting entity.

But even if you’re right–

John Paul Stevens:

But do I understand your position that in this particular case the U.S. Attorney could have entered into a settlement agreement that would have bound the Respondent?

Elena Kagan:

–We actually don’t think that that’s right, Justice Stevens.

Elena Kagan:

We think that in fact the U.S. Attorney did not bind the Respondent, but we don’t think it could have bound the Respondent, and it goes back to my answer to Justice Sotomayor, because Respondent here is representing the D.C. court system.

And so the U.S. Attorney really would have had–

John Paul Stevens:

You draw a distinction between the D.C. Circuit — the D.C. and the United States?

Elena Kagan:

–Yes.

Ultimately the D.C. court system is an actor that is wielding United States authority.

But it’s a very different–

John Paul Stevens:

But you would agree, I take it, that the attorney for the District of Columbia could have bound Respondent?

Somebody could bind Respondent without Respondent even knowing about it, that’s what I’m asking.

Elena Kagan:

–I think only the D.C. court could have prevented Respondent from going forward.

I think that the U.S.–

Antonin Scalia:

And I have to agree with you that to accept this argument that the prosecutor here is an agent just of the court, just of the D.C. court, not an agent of the executive?

Elena Kagan:

–If — who would you like the person be an agent of, Justice Scalia?

[Laughter]

Antonin Scalia:

Well, I’m not making the argument.

John G. Roberts, Jr.:

Usually we have questions the other way.

Elena Kagan:

I apologize.

Antonin Scalia:

I don’t know that courts have ever asserted that they themselves have the power to prosecute.

Elena Kagan:

Well, I do think that that’s the situation that we find in Young, where a court appoints a person to prosecute a contempt on behalf of the court.

Antonin Scalia:

Not on behalf of the court.

On behalf of the government, and that’s why Young said you should offer it first to the United States Attorney, and only if he won’t bring it, then you can appoint somebody else to bring it.

But the — the prosecutor is not the court.

My God.

What a terrible situation.

The prosecutor’s the court, the judge is the court?

Elena Kagan:

Well, I do think Young is different, Justice Scalia, because Young was a separation of powers case.

This case is not because it arises in D.C. In Young, absolutely the judge has to go to the U.S. Attorney’s Office first.

But that’s not the case here, because normal separation of powers principles are not in application in D.C.–

Antonin Scalia:

Isn’t it the case that only the U.S. Attorney can prosecute for this crime?

Could the D.C. attorney general or whatever the name of it, what, counsel, prosecute for this felony?

Elena Kagan:

–Justice Scalia, I don’t believe that is entirely clear.

Elena Kagan:

I think that the court could ask the D.C. Attorney General to prosecute the crime in the same way that the court in Young asked the U.S. Attorney’s Office.

Antonin Scalia:

Because it’s all up to the court; the court’s the big prosecutor, right?

Elena Kagan:

Well, just as — I know you dissented in Young, Justice Scalia.

But just as the court in Young goes to the U.S. Attorney first and when the court is told no the court can appoint its own independent prosecutor, essentially that’s what is happening here.

The court is appointing–

Anthony M. Kennedy:

Well, if there were a finding of innocent, or not guilty, by this prosecutor, could the official prosecutor then prosecute again, or would there be double jeopardy?

If you are saying they are somehow separate, does the double jeopardy clause apply?

Elena Kagan:

–Well, this Court held in Dixon that the double jeopardy clause does apply, because they’re all exercising power–

Anthony M. Kennedy:

Well, but that was the same authority.

Elena Kagan:

–Yes, and they all are exercising power from the United States.

Dixon involved this very statute.

Anthony M. Kennedy:

So you don’t think this is a Bartkiss-like case, like Bartkiss v. Illinois?

Elena Kagan:

I — I am not familiar with that case, Justice Kennedy, but I do think that the double jeopardy clause–

Anthony M. Kennedy:

That a State prosecution doesn’t bar a later Federal prosecution.

Elena Kagan:

–Yes, that’s exactly right, because ultimately all of these power are exercising power that comes from the same source, which is the United States Government.

Stephen G. Breyer:

Is your argument the broad argument that the Chief Justice was talking about, that we have a man who drives in a car from Baltimore to rob a bank in Washington and the U.S. Attorney in Washington gives him a piece of paper which says, I will not prosecute you for this now or in the future, and suddenly the U.S. Attorney in Baltimore prosecutes it.

Are you saying that that is barred or not barred?

That’s the broad argument.

Elena Kagan:

Well, under several–

Stephen G. Breyer:

Or are you making a narrow argument?

Elena Kagan:

–Under several circuits’ law–

Stephen G. Breyer:

Well, I’m just asking you your position on that.

Can the — does this piece of paper from the U.S. Attorney in Washington bar prosecution by the U.S. attorney in Baltimore?

Yes or no?

Elena Kagan:

–I have a principal position and I have a back-up position.

My principal position is yes, it does, for the reason that I gave to the Chief Justice.

To the extent that there is skepticism–

Stephen G. Breyer:

It does bar?

Elena Kagan:

–It does.

The full rule is that the bar is only as to the office that — that executes the agreement.

John G. Roberts, Jr.:

Counsel, could I ask you could a 1983 or I guess Bivens action be brought against Ms. Watson?

The defendant, you know, it turns out he’s not guilty and he thinks there was malice.

Could he bring a Bivens action against her?

Elena Kagan:

Mr. Chief Justice, I have not thought about that question.

I am completely clear as to your — the question that you asked to Mr. Long, which is does she have Brady obligations.

She does have Brady obligations.

She was held to Brady obligations.

John G. Roberts, Jr.:

She’s a State actor.

She’s acting on behalf either of the United States or the District of Columbia.

Therefore, she can be sued directly and be personally liable.

Elena Kagan:

She — it is absolutely right that she is a State actor for constitutional purposes.

And she was treated as such throughout this litigation.

To go back to Justice Breyer’s point — may I?

John G. Roberts, Jr.:

Yes, briefly.

Elena Kagan:

Justice Breyer’s question, the Chief Justice’s question: Even circuits that apply a default rule whereby the government is the entire government and there needs to be limiting things in the agreement, I think if you look at this agreement you will find those limiting things, both in the cross-outs in the caption and in the particular promises that the United States Government has made, which applies really only to the United States Attorney’s Office.

Thank you, Mr. Chief Justice.

John G. Roberts, Jr.:

Thank you, General.

Ms. Frankfurt, you have 7 minutes remaining.

Jaclyn S. Frankfurt:

Thank you.

I just want to say in response both to — to Mr. Long’s comments, that a lack record as to what actually occurred or the general comment, about whether or not Ms. Watson was treated as a State actor — I actually think there is a — a decent record in this case that what occurred was not a motion to request the court to issue a show cause, but in fact, a — a motion that requested — that triggered a ministerial act, which was an act — which was used as a charging document, which the judge believed she had no discretion, and the Assistant Attorney General, who was representing the Petitioner, believed she had no discretion to control, and Ms. Watson was treated as bringing the action on her own behalf.

That’s what the lower court held as a factual matter, and I think it is quite supported by the record.

Samuel A. Alito, Jr.:

Can I ask you this: The District of Columbia Court of Appeals said we are satisfied that no objectively reasonable person could understand that Mr. Robertson’s plea agreement bound Ms. Watson and precluded her contempt proceeding against Mr. Robertson.

If we accept that, is there any other issue in this case?

Jaclyn S. Frankfurt:

If you — yes.

The issue is whether she could constitutionally bring the case on her own.

Samuel A. Alito, Jr.:

And did you preserve that?

If — if Mr. — Mr. Robertson had said, I understand this only means that I am not going to be charged with a — a criminal offense by the United States Attorney’s Office for the District of Columbia, and it has no application to this civil contempt proceeding.

Jaclyn S. Frankfurt:

We absolutely raise that because our argument from — from the very beginning was she can’t constitutionally be representing herself in this proceeding.

If this is happening constitutionally, she represents the United States, and if she represents the United States, then our plea agreement bars it because our plea agreement was with the government.

It indicated the government will not — will not pursue, and any reasonable person in a–

Samuel A. Alito, Jr.:

But that’s a separate question.

So the first question is: What was agreed to under the plea agreement, right?

Jaclyn S. Frankfurt:

–Yes, and at the time that we signed the plea agreement, there was no precedent for the notion of a private person bringing a criminal action in her own name, interest and on her own behalf.

No one would have contemplated that such a thing was constitutional, because you know, back until appeals of felonies–

Samuel A. Alito, Jr.:

Just so I understand what is before us, you preserve — you saying — you are saying you preserve the issue that even if your client fully understood that this plea agreement had no application to a criminal contempt proceeding, he preserved the argument that he could contest the criminal contempt proceeding on the ground that it would be unconstitutional?

Jaclyn S. Frankfurt:

–I’m sorry.

I am not — I am not sure that I’m understanding, or that my words haven’t been misinterpreted.

It’s certainly not the case that when my — that the reasonable interpretation of that plea agreement was that it wouldn’t apply to a criminal contempt proceeding.

The only–

Samuel A. Alito, Jr.:

No, I understand that.

I understand there’s the contract issue.

But did you — in the lower court, did you argue even if he gave that up, under the plea agreement, the criminal contempt proceeding still could not be brought?

Jaclyn S. Frankfurt:

–Even if he gave up the right of a private person to prosecute on her own behalf?

Any agreement–

Samuel A. Alito, Jr.:

Even if he didn’t get that — a bar to that under the plea agreement, the contempt proceeding would still be barred for some other reason?

Did you make that argument?

Jaclyn S. Frankfurt:

–I am not sure that I can answer that we did, because I am not sure that I — I understand the question.

I — I know that we did make the argument that it could only have lawfully been brought on behalf of the sovereign, and that the sovereign was the United States.

And so our view was if this Court views it the way the lower court did, which was as an action between private parties, then it’s unconstitutional under Gompers.

Antonin Scalia:

You did raise, undoubtedly you say, the point that the only way in which she could be the prosecutor was as an agent of the United States?

Jaclyn S. Frankfurt:

Absolutely.

Antonin Scalia:

And that it was unconstitutional for her to — to represent herself.

Jaclyn S. Frankfurt:

Absolutely.

I think we wrote the word, you know,

“whoever stands in the well of the courtroom, it doesn’t matter who that person is; that person represents the sovereign. “

That’s the only constitutional way.

If it’s viewed that way, it’s barred by the plea agreement.

If it’s not viewed that way, as the lower court construed the local statute to permit, then Gompers v. Buck’s Stove does — there is no authority there to impose a criminal penalty.

We would ask the Court to reverse.

John G. Roberts, Jr.:

Thank you, counsel.

John G. Roberts, Jr.:

The case is submitted.