On Wednesday in Robertson v. United States ex rel. Watson (08-6261), an engaged Court seemed troubled by a District of Columbia law under which a private party can bring an action for criminal contempt. (You can find my full summary of the case here, and its SCOTUSWiki page here.)
Jaclyn Frankfurt of the Public Defender Service, counsel for Robertson, began by arguing that Watson was bringing charges as a private citizen, in violation of the Constitution. After Justice Scalia questioned whether that argument had been preserved below, Justice Sotomayor inquired about the exact scope of the plea agreement, asking why the Court should assume that an agreement signed by the U.S. Attorney would bind anyone outside of that office. Frankfurt replied that some circuits regard an agreement signed by a U.S. Attorney as binding on the entire Justice Department, while others hold that it is binding only on that particular office. However she emphasized that because "only the United States Attorney prosecutes criminal offenses of the type that occurred here" in Washington, D.C., that line of questioning was "a bit of a red herring."
Justice Ginsburg then asked whether this law was unique to the District, or whether the states dealt similarly with domestic violence. Frankfurt replied that, although the procedural details varied, some states did allow a complainant to either file a request for an order to show cause or to actually prosecute as a private prosecutor. (Under Young v. United States ex rel. Vuitton Et Fils, S.A. (1987), a federal court can appoint a private attorney to prosecute a criminal contempt action if the executive refuses to prosecute. Young left open the question of whether a court may constitutionally appoint an attorney who represents the beneficiary of the violated court order.)
Justice Scalia noted that "the States don't have the same compulsion that the Federal Government has, which arises from the separation of powers. [T]hey can perhaps allow private individuals to prosecute, whereas the only exception we have made from the chief executive's authority to prosecute is Young, which is a very narrow exception." And after Justice Stevens pointed out that the District had used this procedure for quite some time, Justice Scalia returned to Young, which in his view should be read to bar the appointment of interested parties as prosecutors.
Representing Watson, Robert Long noted how many questions were not before the Court: the case caption was not a constitutional issue, and Robertson was not raising the question (left open by Young) of whether "a private interested individual can bring a criminal contempt proceeding" on behalf of the sovereign. The only question before the Court was whether such a person could bring the action on her own behalf.
Justice Scalia asked what was meant by someone bringing an action "in the interest of the sovereign." Long responded that he wished to argue that "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" with the individual pressing an action on her own behalf. Justice Breyer asked Long to elaborate on this argument, and Justice Alito interjected a question about the plea bargain, but Long answered that this line of questioning was veering into statutory issues not presented in the case.
Chief Justice Roberts then pressed Long on the details of his position, asking what Brady obligations Watson would have as a private prosectuor. (Under Brady v. Maryland (1963), prosecutors are required to provide defendants with any exculpatory evidence in their possessesion.) Justices Sotomayor and Kennedy joined in this line of questioning.
Making reference to the Oresteia of Aeschylus, in which private vengeance (as embodied by the mythical Furies) gives way to the Athenian criminal justice system, Justice Breyer expressed his concern that he could not ignore the question of whether the government could appoint an interested private prosecutor.
Appearing as amicus curiae on behalf of Watson, Solicitor General Elena Kagan staked out a somewhat different position. General Kagan conceded that Robertson was "right that in this criminal contempt action, Ms. Watson . . . was and must have been exercising sovereign power." She elaborated that, as the government understood it, Watson "was exercising sovereign power on behalf of the Article I court, the D.C. court power whose initial source, original source, is Congress."
Justice Scalia suggested that only the government has the power to incarcerate people; "courts" do not. General Kagan accepted that "the court is surely part of the government, and in the end this is power of the United States." She went on to suggest that when a U.S. Attorney's Office signs a plea agreement, it binds only that office"”a position that Chief Justice Roberts described as "absolutely startling."
Justice Scalia then asked whether, in order to agree with the government, he had "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?" General Kagan asked, "Who would you like the person to be an agent of, Justice Scalia?" Chief Justice Roberts indicated that "[u]sually we have questions the other way." Justice Scalia doubted whether courts had "ever asserted that they themselves [as opposed to the executive or the government as a whole] have the power to prosecute." General Kagan suggested, however, that Young was such a case.
Chief Justice Roberts asked whether a Section 1983 action or a Bivens action could be brought against a private prosecutor who had abused her office. General Kagan replied that she had not thought about the question, but that a private prosecutor certainly had Brady obligations.
In rebuttal, Ms. Frankfurt suggested that the record below indicated that Watson had been understood to act in her private capacity, and not on behalf of the state.
Justice Alito again attempted to clarify the proper interpretation of the plea agreement, and to determine whether the constitutional issue had been preserved below. Frankfurt repeated that it absolutely had.