Record and brief — Robertson v. United States ex rel. Watson

PER CURIAM

(Shp Opimon) Citeas 560U.S. (2010) l

Per Curiam

NOTICE: This opinion is seins co Sones seteien ets guiiioation in de

——— print of the United States

Readers are requested to

of Decisions, Supreme ‘of the United States, Wash-

com, 5 & 20843, of any on Fees 2 or other formal errora, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 08-6261

JOHN ROBERTSON, PETITIONER v. UNITED STATES

EX REL. WYKENNA WATSON

ON WRIT OF CERTIORARI TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

[May 24, 2010]

PER CURIAM.

The writ of certiorari is dismissed as improvidently

granted.

It is so ordered.

Citeas: 560U.S.__— (2010) 1

ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 08-6261

JOHN ROBERTSON, PETITIONER v. UNITED STATES

EX REL. WYKENNA WATSON

ON WRIT OF CERTIORARI TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

[May 24, 2010]

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,

JUSTICE KENNEDY, and JUSTICE SOTOMAYOR join,

dissenting.

This is a complicated case, but it raises a straightfor-

ward and important threshold issue. When we granted

certiorari, we rephrased the question presented to focus on

that issue: “Whether an action for criminal contempt in a

congressionally created court may constitutionally be

brought in the name and pursuant to the power of a pri-

vate person, rather than in the name and pursuant to the

power of the United States.” 558 U.S __ (2009). The

answer to that question is no. The terrifying force of the

criminal justice system may only be brought to bear

against an individual by society as a whole, through a

prosecution brought on behalf of the government. The

court below held otherwise, relying on a dissenting opinion

in one of our cases, and on the litigating position of the

United States, which the Solicitor General has properly

abandoned in this Court. See Brief for United States as

Amicus Curiae 12-13, n. 3. We should correct the lower

court’s error and return the case to that court to resolve

2 ROBERTSON v. UNITED STATES Ex REL. WATSON

ROBERTS, C. J., dissenting

the remaining questions.

I

In March 1999, Wykenna Watson was assaulted by her

then-boyfriend, John Robertson. App. 40. Watson sought

and secured a civil protective order against Robertson,

prohibiting him from approaching within 100 feet of her

and from assaulting, threatening, harassing, physically

abusing, or contacting her. /d., at 20. At the same time,

the United States Attorney's Office (USAO) was independ-

ently pursuing criminal charges against Robertson arising

from the assault.

On June 26, Robertson violated the protective order by

again violently assaulting Watson. On July 8, he was

indicted for the previous March incident; shortly thereaf-

ter, the USAO offered, and Robertson accepted, a plea

agreement resolving those charges. /d., at 26—30. At the

top of the boilerplate plea form, the Assistant U. S. Attor-

ney added in longhand: “In exchange for Mr. Robertson’s

plea of guilty to attempt[ed] aggravated assault, the gov't

agrees to: DISMISS the [remaining] charges|[,] [and] [n]ot

pursue any charges concerning an incident on 6-26-99.”

Id., at 28. The Superior Court accepted Robertson’s plea

and sentenced him to 1 to 3 years’ imprisonment. IJd., at

30, 46, 53.

A few months later, Watson filed a motion to initiate

criminal contempt proceedings against Robertson for

violating the civil protective order, based on the June 26

assault. See D. C. Code §16—1005(f) (2009 Supp.); D. C.

Super. Ct. Domestic Violence Rule 12(d) (Lexis 2010); Jn re

Robertson, 940 A. 2d 1050, 1053 (D. C. 2008). After a 2-

day bench trial, the court found Robertson guilty on three

counts of criminal contempt and sentenced him to three

consecutive 180-day terms of imprisonment, suspending

execution of the last in favor of five years’ probation. The

court also ordered Robertson to pay Watson roughly

Cite as: 560U.S.__ (2010) 3

RoBERTS, C. J., dissenting

$10,000 in restitution. App. 2, 63-64. Robertson filed a

motion to vacate the judgment, which the court denied.

Robertson appealed. Criminal contempt prosecutions,

he argued, “are between the public and the defendant,”

and thus could “only be brought in the name of the rele-

vant sovereign, . .. the United States.” Brief for Petitioner

8, 10 (quoting Brief for Appellant in No. 00-FM-1269 etc.

(D. C.), pp. 20-21, and 940 A. 2d, at 1057; internal quota-

tion marks omitted). So viewed, the prosecution based on

the June 26 incident could not be brought, because the

plea agreement barred the “govjernmen]t” from pursuing

any charges arising from that incident.

The Court of Appeals rejected Robertson’s arguments, in

a two-step holding. Step one: “the criminal contempt

prosecution in this case was conducted as a private action

brought in the name and interest of Ms. Watson, not as a

public action brought in the name and interest of the

United States or any other governmental entity.” 940

A. 2d, at 1057-1058 (internal quotation marks and brack-

ets omitted). Step two: because the criminal contempt

prosecution was brought as an exercise of private power,

that prosecution did not implicate a plea agreement that

bound only the government. /d., at 1059-1060.

We granted certiorari to review the first step of that

holding.

II

A

Our decision in United States v. Dixon, 509 U.S. 688

(1993), provides the answer to the question presented

here. The question in Dixon was one of double jeopardy—

whether a private party's prosecution for criminal con-

tempt barred the Government's subsequent prosecution

for the “same criminal offense.” Jd., at 696. The private

prosecution in that case was brought under the same D. C.

contempt law at issue here. /d., at 692 (citing D. C. Code

4 ROBERTSON vu. UNITED STATES Ex REL. WATSON

ROBERTS, C. J., dissenting

§16—1005 (1989)).

We thought it “obvious” in Dixon that double jeopardy

protections barred the Government's subsequent prosecu-

tion. 509 U.S., at 696. The Double Jeopardy Clause, of

course, bars the second prosecution for the same offense

only if that prosecution is brought by the same sovereign

as the first. See Heath v. Alabama, 474 U.S. 82, 88-89

(1985). Thus, the only possible way the Government's

second prosecution could have offended the Double Jeop-

ardy Clause is if the Court understood the criminal con-

tempt prosecution to be the Government's first prosecu-

tion—i.e., one brought on behalf of the Government. See

United States v. Halper, 490 U.S. 435, 451 (1989) (“The

protections of the Double Jeopardy Clause are not trig-

gered by litigation between private parties”), overruled on

other grounds by Hudson v. United Staies, 522 U.S. 93

(1997).

That we treated the criminal contempt prosecution in

Dixon as an exercise of government power should not be

surprising More than two centuries ago, Blackstone

wrote that the king is “the proper person to prosecute for

all public offenses and breaches of the peace, being the

person injured in the eye of the law.” 1 W. Blackstone,

Commentaries *268. Blackstone repeated that principle

throughout his fourth book. See, e.g., 4 id., at *2, *8, *177.

Not long after Blackstone, then-Representative John

Marshall agreed, stating on the House floor that “adminis-

ter[ing] criminal judgment .. . is a duty to be performed at

the demand of the nation, and with which the nation has a

right to dispense. If judgment... is to be pronounced, it

must be at the prosecution of the nation.” 10 Annals of

Cong. 615 (1800).

This principle has deep historical roots. See, e.g., 1 F.

Wharton, Criminal Law §10, p. 11 (9th ed. 1885) (“Penal

justice ... is a distinctive prerogative of the State, to be

exercised in the service [of] the State”); see also J. Locke,

Citeas: 560U.S.__ (2010) 5

ROBERTS, C. J., dissenting

Second Treatise of Civil Government §88, pp. 43—44 WJ.

Gough ed. 1947) (“[E]very man who has entered into civil

society, and is become a member of any commonwealth,

has thereby quitted his power to punish offences against

the law of nature in prosecution of his own private judg-

ment{.] ... [H]e has given a right to the commonwealth to

employ his force for the execution of the judgments of the

commonwealth” (footnote omitted)). As this Court has

said before, “[c]rimes and offenses against the laws of any

State can only be defined, prosecuted and pardoned by the

sovereign authority of that State.” Huntington v. Attrill,

146 U.S. 657, 669 (1892); see also Heath, supra, at 88

(“The dual sovereignty doctrine [of the Double Jeopardy

Clause] is founded on the common-law conception of crime

as an offense against the sovereignty of the government’).

These core principles are embodied in the Constitution.

The protections our Bill of Rights affords those facing

criminal prosecution apply to “any person,” “any criminal

case,” and “all criminal prosecutions.” Amdts. 5, 6 (em-

phasis added). But those protections apply only against

the government; “[i]ndividual invasion of individual rights”

is not covered. Civil Rights Cases, 109 U.S. 3, 11 (1883)

(Fourteenth Amendment). If the safeguards of the Bill of

Rights are to be available in “all criminal prosecutions,”

then any such prosecution must be considered to be one on

behalf of the government—otherwise the constitutional

limits do not apply. “The Constitution constrains govern-

mental action ‘by whatever instruments or in whatever

modes that action may be taken,” Lebron v. National

Railroad Passenger Corporation, 513 U.S. 374, 392 (1995)

(quoting Ex parte Virginia, 100 U.S. 339, 346-347 (1880)),

but the action still must be governmental action.

The court below, however, rejected this understanding,

concluding that Watson’s “criminal contempt prosecution”

was not “a public action” but “a private action,” such that

it was not covered by an agreement binding the govern-

6 ROBERTSON vu. UNITED STATES Ex REL. WATSON

ROBERTS, C. J., dissenting

ment. 940 A. 2d, at 1057-1058 (internal quotation marks

omitted). But as we have explained, “[t]he purpose of a

criminal court is not to provide a forum for the ascertain-

ment of private rights. Rather it is to vindicate the public

interest in the enforcement of the criminal law while at

the same time safeguarding the rights of the individual

defendant.” Standefer v. United States, 447 U.S. 10, 25

(1980) (internal quotation marks omitted).

The holding below gives rise to a broad array of unset-

tling questions. Take the Due Process Clause. It guaran-

tees particular rights in criminal prosecutions because the

prosecutor is a state actor, carrying out a “duty on the part

of the Government.” Kyles v. Whitley, 514 U.S. 419, 433

(1995) (emphasis added). But if the criminal prosecution

is instead viewed as “a private action,” not an exercise of

sovereign power, how would those rights attach? Cf.

DeShaney v. Winnebago County Dept. of Social Servs., 489

U.S. 189, 195-196 (1989). What about Brady v. Mary-

land, 373 U. S. 83 (1963)? The private prosecutor is likely

to have evidence pertinent to the proceeding—particularly

if, as here, the private prosecutor is also the victim of the

crime. But if the prosecutor is not exercising governmen-

tal authority, what would be the constitutional basis for

any Brady obligations? May the private prosecutor inter-

view the defendant without Miranda warnings, since she

is not acting on behalf of any sovereign but only in a pri-

vate capacity? See Miranda v. Arizona, 384 U.S. 436

(1966).

Our entire criminal justice system is premised on the

notion that a criminal prosecution pits the government

against the governed, not one private citizen against

another. The ruling below is a startling repudiation of

that basic understanding.

B

Despite the foregoing, the Court of Appeals determined

Cite as: 560 U.S. (2010) 7

RosBeRrts, C. J., dissenting

that Watson brought this criminal prosecution under her

authority as a private citizen. 940 A. 2d, at 1058. To

reach that conclusion, the court relied on Justice PB! ack-

mun’s separate opinion in Dixon. See 940 A. 2d, at 1057

(‘As Justice Blackmun said in United States v. Dixon,

criminal contempt is ‘a special situation.’ [Dixon, 509

U.S., at 742 (opinion concurring in judgment in part and

dissenting in part)]. ... ‘[T]he purpose of contempt is not

to punish an offense against the community at large but

rather to punish the specific offense of disobeying a court

order. [J/bid.|” (citation omitted)). In fact, the court

quoted from Justice Blackmun’s separate opinion no fewer

than four times. /d., at 1057.

Justice Blackmun’s opinion, however, was a partial

concurrence in the judgment and partial dissent, and it

garnered only one vote. Moreover, the portion of the

opinion relied upon by the court below was the dissenting

part. A majority of the Court squarely rejected Justice

Blackmun’s view, and did so in plain terms. See Dixon,

509 U.S., at 699-701 (opinion of SCALIA, J., joined by

KENNEDY, J.); see id., at 720 (White, J., joined by STEVENS

and Souter, JJ., concurring in judgment in part and dis-

senting in part).

Before this Court, Watson understandably retreats from

Justice Blackmun’s dissenting opinion. Instead, she ar-

gues that “[iJn England and in America at the time of the

Founding, prosecutions by victims of crime and their

families were the rule, not the exception.” Brief for Re-

spondent 38-39. But such prosecutions, though brought

by a private party, were commonly understood as an

exercise of sovereign power—the private party acting on

behalf of the sovereign, seeking to vindicate a public

wrong.

In England, for example, private parties could initiate

criminal prosecutions, but the Crown—entrusted with the

constitutional responsibility for law enforcement—could

8 ROBERTSON vu. UNITED STATES Ex REL. WATSON

ROBERTS, C. J., dissenting

enter a nolle prosequi to halt the prosecution. See, e.z.,

King v. Guerchy, 1 Black W. 545, 96 Eng. Rep. 315 (K. B.

1765); King v. Fielding, 2 Burr. 719, 720, 97 Eng. Rep. 531

(K. B. 1759); see also King v. State, 43 Fla. 211, 223, 31 So.

254, 257 (1901) (Private prosecutions in England were

understood to be “conducted on behalf of the crown by the

privately retained counsel of private prosecutors”); P. Dev-

lin, The Criminal Prosecution in England 21 (1958).

Watson’s arguments based on American precedent fail

largely for the same reason: To say that private parties

could (and still can, in some places) exercise some control

over criminal prosecutions says nothing to rebut the

widely accepted principle that those private parties neces-

sarily acted (and now act) on behalf of the sovereign. See,

e.g., Cronan ex rel. State v. Cronan, 774 A. 2d 866, 877

(R. |. 2001) (“[A]ttorneys conducting private prosecutions

stand in the shoes of the state”); Staie v. Westbrook, 279

N.C. 18, 36, 181 S. E. 2d 572, 583 (1971) (“The prosecut-

ing attorney, whether the solicitor or privately employed

counsel, represents the State”); Sidman, The Outmoded

Concept of Private Prosecution, 25 Am. U. L. Rev. 754, 774

(1976) (‘[T]he privately retained attorney becomes, in

effect, a temporary public prosecutor’). Indeed, many of

the state court authorities Watson herself cites expressly

recognize this fundamental point. See, e.g., Katz v. Com-

monwealth, 379 Mass. 305, 312, 399 N. E. 2d 1055, 1060

(1979) (“[I]t is clear with respect to the criminal aspects of

the present case that the Commonwealth ... is the ad-

verse party’).

We have no need to take issue with that proposition, but

this case is different. The whole point of the ruling below

was that this was not a “public action” that happened to

be litigated by a private party, but “a private action

brought in the name and interest of [Ms.] Watson.” 940

A. 2d, at 1057-1058. That holding was critical in explain-

ing why Watson's criminal action was not barred by a plea

Cite as: 560U.S.__ (2010) 9

ROBERTS, C. J., dissenting

agreement that bound the government.

Moving beyond criminal prosecutions generally, Watson

next contends that contempt prosecutions are unique, and

thus should be exempt from the general rule. See Brief for

Respondent 24. If Watson means to argue that modern

criminal contempts are not “crimes,” that view was

squarely rejected by this Court in Bloom v. Illinois, 391

U.S. 194 (1968). See id., at 199-200 (holding that a

criminal contempt prosecution is a criminal prosecution

for the purposes of the Sixth Amendment); see also id., at

201 (“Criminal contempt is a crime in the ordinary sense”);

United States v. Providence Journal Co., 485 U.S. 693,

700 (1988) (“The fact that the allegedly criminal conduct

concerns the violation of a court order instead of common

law or a statutory prohibition does not render the prosecu-

tion any less an exercise of the sovereign power of the

United States”).

In any event, even if contempt prosecutions might not

always count as “crimes,” this one undoubtedly does, as

Watson herself concedes. Brief for Respondent 34 (“[T]his

case was clearly a criminal contempt proceeding from

beginning to end”). That concession is well taken, given

that whether a particular punishment is criminal or civil

is “a matter of statutory construction,” Hudson, 522 U. S.,

at 99, and that the relevant provisions here make clear

that contempt proceedings like this one are criminal, see

D.C. Code §16—1005(f) (“[C]riminal contempt shall be

punished by a fine not exceeding $1,000 or imprisonment

for not more than 180 days, or both”); see also D. C. Super.

Ct. Domestic Violence Kule 12(d) (labeled “Motion to adju-

dicate criminal contempt,” and describing the violation as

“criminal contempt”). As Justice Holmes put it for the

Court: “These contempts are infractions of the law, visited

with punishment as such. If such acts are not criminal,

we are in error as to the most fundamental characteristic

of crimes as that word has been understood in English

10 ROBER1 SON uv. UNITED STATES Ex REL. WATSON

RoBertTs, C. J., dissentung

speech.” Gompers v. United States, 233 U.S. 604, 610

(1914).

The United States bears some responsibility for leading

the court below astray. In that court, the Government

argued that the criminal contempt prosecution was “‘a

private action brought in the name and interest of [Ms.]

Watson, not ... a public action brought in the name and

interest of the United States or any other governmental

entity.” 940 A. 2d, at 1056 (quoting Brief for United

States in No. 00—FM-—925 etc. (D.C.)). The court below

quoted that precise language in stating its conclusion. See

940 A. 2d, at 1057—1058 (same).

Before this Court, the Solicitor General has properly

abandoned that position, and does not defend the lower

court’s decision on this issue. See Brief for United States

as Amicus Curiae 12-13, n.3 (“{[T]he United States no

longer believes the contempt prosecution at issue can be

understood as a purely ‘private action”). We should do

our part and correct the ruling of the court below.

Il

The ultimate issue in this case, of course, is whether the

criminal contempt prosecution Watson initiated in Janu-

ary 2000 violated the plea agreement Robertson signed

with the USAO in July 1999. The Court of Appeals said

“no,” based solely on its determination that Watson was

exercising private—not sovereign—power. With that

determination in hand, the ultimate plea agreement ques-

tion was straightforward: If Watson was wielding purely

private power, a plea agreement that by its terms bound

only the “gov[ernmen]t” would not bind her.

With a proper view of Watson’s role in this case, how-

ever, the plea agreement question becomes significantly

more difficult. The Solicitor General argues that the

agreement does not bar the contempt prosecution, even if

that prosecution is correctly viewed as on behalf of the

Cite as 560U.S (2010) ll

RoBerTS, C J, dissentung

sovereign. /d., at 29-32. The difficult aspects of that legal

issue, however, should not cause us to shy away from

answering the fundamental threshold question whether a

criminal prosecution may be brought on behalf and in the

interest of a private party. Having decided that threshold

question in favor of Robertson, | would remand to the

court below to consider the plea agreement from the

proper starting point.

In light of all the foregoing, it is worth stressing that the

majority's determination not to decide that question “car-

ries with it no implication whatever regarding the Court's

views on the merits.” Maryland v. Baltimore Radio Show,

Inc., 338 U. S. 912, 919 (1950) (Frankfurter, J., respecting

denial of certiorari).

* * *

Allegorical depictions of the law frequently show a

figure wielding a sword—the sword of justice, to be used to

smite those who violate the criminal laws. Indeed, outside

our own courthouse you will find a statue of more than 30

tons, Authority of Law, which portrays a male figure with

such a sword. According to the sculptor, James Earle

Fraser (who also designed the buffalo nickel), the figure

sits “wait[ing] with concentrated attention, holding in his

left hand the tablet of laws, backed by the sheathed sword,

symbolic of enforcement through law.” Supreme Court of

the United States, Office of the Curator, Contemplation of

Justice and Authority of Law Information Sheet 2 (2009)

(available in Clerk of Court's case file). A basic step in

organizing a civilized society is to take that sword out of

private hands and turn it over to an organized govern-

ment, acting on behalf of all the people. Indeed, “[t]he . . .

power a man has in the state of nature is the power to

punish the crimes committed against that law. [But this]

he gives up when he joins [a] ... political society, and

incorporates into [a] commonwealth.” Locke, Second

12 ROBERTSON uv. UNITED STATES Ex REL. WATSON

ROBERTS, C. J., dissenting

Treatise, §128, at 64.

The ru:.ag below contravenes that fundamental proposi-

tion, and should not be allowed to stand. At the very least,

we should do what we decided to do when we granted

certiorari, and took the unusual step of rephrasing the

question presented: answer it.

| respectfully dissent from the Court’s belated determi-

nation not to answer that question.

Cite as: 560U.S.__ (2010) l

SCTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 08-6261

JOHN ROBERTSON, PETITIONER v. UNITED STATES

EX REL. WYKENNA WATSON

ON WRIT OF CERTIORARI TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

[May 24, 2010]

JUSTICE SOTOMAYOR, with whom JUSTICE KENNEDY

joins, dissenting.

THE CHIEF JUSTICE would hold that criminal prosecu-

tions, including criminal contempt proceedings, must be

brought on behalf of the government. I join his opinion

with the understanding that the narrow holding it pro-

poses does not address civil contempt proceedings or con-

sider more generally the legitimacy of existing regimes for

the enforcement of restraining orders.