tv Key Capitol Hill Hearings CSPAN October 19, 2015 12:30pm-2:01pm EDT
logan does not apply. >> how would you describe the adequate and independent state grounds on which this decision rested? >> i would say that the lack of a binding federal law question is an antecedent requirement, to borrow terminology from the sg's brief before you get to the adequate and independent state ground analysis. the second part of our brief said while it is not constitutionally required, that is basically this court president -- president from danforth and in kaufman have said what have become peak exceptions are matters of equitable discretion and not
,atters of the constitution and the federal hay be as statute only applies in federal court. the federal habeas corpus can grant if relief is warranted. says pleasee acknowledge we are holding a prisoner in contradiction of federal law that used to do nothing about it, then the answer is federal habeas corpus? there's not a second answer the state can be required under the supremacy clause under its own procedures to enforce the federal law? if i were to take that position, i'm not sure what would support me. >> martinez versus ryan suggested there are advantages
to citing the federal hay be us statute the hay be a rather than what the court called a freestanding constitutional plan. a major advantage here is if you say the state courts are bound by the constitution, when it would go to federal hay be us, there would be a very efrin shall review. if you say the redress question in state court is a matter of when the issue goes to federal hay be us, it would not apply because the state court would not have decided the federal issue. that is a major difference. this court would benefit from percolation in the lower federal courts, all of
which would be out the window if there is jurisdiction in this >> are we in effect saying the supremacy clause binds the states only indirect criminal proceedings? is that another way of phrasing your argument? >> it would be that the supremacy clause only binds the states in direct proceedings and collateral proceedings where it is an old rule. that's the equivalent of a direct proceeding. if you are talking about a new rule, that is where the two exceptions apply. those are based in a statutory all provision.
both the direct review and .pplication of old rules >> how would you differentiate this case from standard oil? richard bernstein: the issue was the underlying status of the federal government arm, and the court said that question is controlled by federal law. standard oil is like miller sl, where the issue was -- what does the eighth amendment require? that is the federal issue imply, and standard oil as accommodation of statue, regulations, and federal law, and federal law controlled the question. here, the statute does not apply in state court like other cases have go, like the federal rules of evidence do not apply in state courts, even though many courts follow a similar provision and certainly follow federal precedents in interpreting them. justice: we did say that state
could define the exemption richard bernstein: in any which way it wanted. -- and many which are it wanted. richard bernstein: correct. justice: we announced what the federal law is, and the state said they would follow it, but i guess it might or might not be free to change its mind about doing that. richard bernstein: i think the difference in what makes this case special is the court has held murdoch versus city of memphis, almost 150 years ago, 87 from 326 10 327, the 1267 jurisdiction's question by question. it is not like 1331 case by case, it is question by question. i do not believe the court has jurisdiction to skip over the question of whether federal law applies and then answer the hypothetical, is federal law applies, what would it be? i think the question of whether federal law applies --
justice: let's think of the first exception. suppose that many states had sedition laws that makes certain conduct unlawful to the 1000 people in prison. this court in the new role holds you cannot criminalize that behavior. what is the law that would make that retroactive to people in prison? it sounds to me that it is not like some kind of statutory discussion rather there are human beings who are in prison who are there without having violated any valid law because it was always protected by the first amendment. if that is right, it is the constitution, the due process clause that says they are being
held, even though they committed the crime 22 years ago, they are now being held in confinement without due process of law because you cannot criminalize their behavior. do you see where i am going? that being so, it is a federal constitutional rule. richard bernstein: in your hypothetical, respectfully, i do not think i would be a new rule. justice: i have made it a new rule for the purpose of a hypothetical. richard bernstein: if it were a new rule, then fourth and going all the way back, the justices and parliaments opinion and mackey said we are not greeting the substance of exception because the constitution requires that -- justice: the case was the states could be more generous, this was the opposite of generous, could
they be more stingy? i cannot find anything -- maybe i will read it again -- but i cannot find anything there or in danforth that answers the question, so i thought it is any question, hence, that question i posed to you because i want your response. i do not think you can answered by means of precedents. i think you have to figure it out without the help of precedents. richard bernstein: if it is a new rule, the court has held, and sorry to cite the precedent, but there has been much activity on collateral review that it is not constitutional. justice: that is to put that we have tnt says we do not like the letter. you are saying that we have then maybe that is wrong. why doesn't violate the constitution to hold a person in prison for 20 years for conduct which the constitution forbids making criminal?
richard bernstein: it does filing the constitution. justice: it was not criminal at the time. richard bernstein: it was at the time he was convicted, right? richard bernstein: fair enough -- justice: fair enough. the constitution, according to the cases, is satisfied by the federal habeas. richard bernstein: is there anything else you could say? justice: there were some people in salem who were imprisoned for being a witch and lo and behold in 1820, it was held by this court that that violated the constitution. i just made the more outrageous example of the same thing. i wanted to say, i got your point, it did not violate the constitution but i also got the point that you have authority, anything else? richard bernstein: this court has been reluctant, even when
there was a violation of the due process clause, to create a judicial remedy and imply judicial remedy on federal statutory remedy, that is cited in our brief. just as that is not what is happening, mr. bernstein. if you assume -- justice: that is not what is happening, mr. bernstein. if you assume the justice's hypothesis of keeping someone in prison who has not been criminalize, the state has set up the collateral review mechanism. you are not asking to set up a new mechanism. it does have the collateral review mechanism. the only question is whether it will comply with federal constitution law in that collateral review mechanism. richard bernstein: the other question is whether that issue
of retroactivity is itself a federal constitutional issue, if it is, obviously, there is jurisdiction. if not, i would select there is not jurisdiction, and that the proper remedy is federal habeas, if i may reserve the remainder of my time. justice: thank you. >> mr. chief justice and the court, miller versus alabama establish a new substitute role prohibiting mandatory life without parole for juveniles which should be applied after actively. this court has jurisdiction to hear the claimant because the louisiana supreme court relied exquisitely on jurisprudence. in miller, this court held that mandatory life in prison was unconstitutional and it also held that life in prison would be an uncommon, even today. just as: --
justice: could you just say we have a fourth amendment and the federal constitution has a fourth amendment. we are going to apply our own constitution, but in applying it, we will follow the federal precedent. i think we would say, in that case, that the case has been decided on the state constitutional grounds, even though the state court was interpreting the ground. even though it is looking to federal decisions. mark paisance: in this case, your honor, the federal court of louisiana did not state it was exercising independent grounds at all. justice: i've got the case is cited said that? i thought it cited an earlier louisiana supreme court case which made it very clear that it was following the federal rule as a matter of discretion and
not because it had to, and it could in a later opinion decide not to follow federal law. that was my interpretation. mark paisance: it was my interpretation that the louisiana supreme court said -- we have a choice. t and they made the choice to applyeague. -- and they may be trusted to apply teague. they said they were dictated by the taken analysis and that is what was done in this case. justice: did you not say in taylor that they were not bound to follow teague and they went to to make it clear they were not bound to do that? mark paisance: they did say that. justice: they never retracted that. mark paisance: correct, but the choice insult is not necessarily a matter of state law. while the supreme court had the authority to make that decision, it said we believe teague by choosing -- we believe by
choosing teague, that is the better law we will follow the federal jurisprudence and law from teague in doing so. i believe that unless they state a clear, independent ground, this court can conclusively presume that they apply federal law as they believe. justice: i thought unless they clearly state otherwise, we will assume that they are applying federal law, and here they clearly did state otherwise. they said, we do not have to follow federal law, but we will model our state law federal law. it seems to me that satisfies the exception requirement of michigan. mark paisance: it is my opinion that michigan v. lull indicates that the state must say we are following the law in making this decision. we are applying state law rather than federal. justice: they did say that. this is a matter of state law, we do not have to follow teague, but we choose to.
i thought that is what they said. mark plaisance: i believe that is efficient to indicate to the court that it is applying federal law. justice: i think what people are saying to you is that it is different from your standard michigan question. this is a different question. it is a state that says we are not bound to follow teague, we can do something different, but we want to follow teague. in all the particulars, and then the question is, if the state commits the following teague, it does not think anybody else has committed it, but it's up commits the following teague at to following federal law, then what happens? is there enough of a federal question to decide the case? that is not the michigan question. that is more like a merrell dow question or something like that were federal law and the state
has chosen it but it is just partial of the claim because the state is so committed to following federal law and all the particulars. mark plaisance: i agree, and even in damper, the court said the question of interactivity is the question of federal law. justice: why don't you finish. mark plaisance: that is the answer to your explanation or hypothetical that you said if the state decided they were choosing federal law, then what is the next step? and the next step is retroactivity, which both the majority and they said in danford that the question of march activity is appear question of federal law. justice: federal statutory law. i thought that was supportive danforth. they can go beyond what federal interpretation is because we are talking about the federal miller v. alabama -- the federal habeas statue. mark plaisance: that is correct,
but if they consider the state of the merit of the claim and the merit is, is mr. montgomery serving under the constitutional sentence? is miller attracted to say he is serving in a constitutional sentence -- justice: to mr. bernstein's point, are you saying that your client would be worse off, if you are correct, that is if the question comes up on federal habeas and the federal court decides that without any [indiscernible] but it to state court goes first, then federal review is truncated? mark plaisance: that would be my understanding, your honor, that while jurisdiction in this court does not depend on what has
occurred so far, it depends on what the court does decide. whether he can go to federal court or his court, does not affect the jurisdiction. the question is -- justice: had you answered -- oh, i suppose you are right, but your victory is going to leave your client in the worst addition because any get to federal court, he will be saddled with -- mark plaisance: not if the court rules they have jurisdiction and makes miller attracted, and then he would not be going to federal court. the question is -- is mr. montgomery being held unconstitutionally? miller said that a mandatory life in prison sentence is unconstitutional because it fails to address the fact of the matter that this court believes kids are different. justice: on the jurisdictional point, let me see if i
understand what you are arguing. a lot of states rules of procedure model dr. federal rules -- are modeled after federal rules. they follow federal rules but as a matter of choice and not because they think they are bound by the federal rules. let's say there is a disagreement in federal court about what federal rule of evidence 403 means. the state court says, we will follow the federal rule and we think the right course between these two divergent federal courts of appeals is the second circuit, so we will follow the second circuit's interpretation of federal rule 403. would we have jurisdiction to review that decision as a decision on the question of federal law? mark plaisance: if it was clear to the court that the state court made a conscious choice
and sent enough of a signal to the court that it was adopting federal law to use as state law, but in this case, there is no indication that the state of supreme court of louisiana was making that decision. they said that we are -- our analysis is dictated by teague. in doing so, they found that mr. -- they would not apply at miller interactive and that is the real issue -- miller retroactive and that is the issue of this case. justice: suppose we held that, we can review and we have jurisdiction because the state court said they would follow teague and then we go on and we say that under teague, miller can be applied on collateral review, and the kid goes back to the louisiana supreme court and they say, we said previously in
taylor that we would follow teague, but that was based on our understanding of teague at that time and now that we have seen what it has been interpreted to mean by the supreme court, we will not follow teague. then what would happen? mark plaisance: i think louisiana would be bound to follow this court's ruling. justice: why? because it's a we would voluntarily follow it? -- because it said we would voluntarily follow it? mark plaisance: in doing so, it must follow this court's jurisprudence. they had changed their mind and chosen the chose -- and chosen not to follow. justice: what forces them to stay where they were? it is a matter of state law. they did not do that in this case. mark plaisance: they did not do that in this case. justice: not yet, but if we agree with you and we send it back and they say, that is what teague means, we won't follow teague.
what stops them from doing that? doesn't that make us look foolish? mark plaisance: if the state considers the merit of federal claim, it must grant the relief that federal court -- justice: but the question is what is the federal claim? quite a few site standard oil v. johnson? mark plaisance: that was the case cited by the solicitor general and i believe my friend from the solicitor general's office can probably answer that question a little bit better. justice: are you asking us to decide the question of october -- the question is left open in stamford? -- danforth? danford said there could be because additional minimum but it did not answer the question. mark plaisance: i am saying you
do not need to get to that question. justice: let's assume. mark plaisance: i was at the balance of my time. justice: u.s., council. -- thank you, council. >> thank you, mr. chief justice. this court does have -- louisiana has upon fairly incorporated into its law a holy federal standard and in this court's decision with three affiliated tribes have most recently with ohio versus minor, the court has recognized that when the state has chosen to adopt federal law to guide the decisions and binds itself to federal law, there is a federal question. justice: they can change their mind, right?
you said voluntarily chose to follow it, they can voluntarily choose not to follow it anymore. michael dreeben: the same is true in any michigan v. long case. it has jurisdiction under section 1257 to resolve state court resolutions of federal law and it will presume that a state constitutional decision of an image of the fourth amendment will be binding, that recognized that the only circumstance in which the court will not treat federal law as governing both questions is one the state makes clear that it would reach the same result under state constitutional law as it did under federal law. it did not preclude the option of the state going back and reaching a different decision once enlightened by the court asked of the content of federal law. standard oil is completely clear on this. it says the state chosen to use federal law to determine whether a federal exchange with federal
mentality, and we will correct the understanding of federal law, but on remand, the state can't now, free from misapprehension of federal law, decide what it thinks state law requires. if it does not, then there may be a federal constitutional question. justice: how does it work? i looked at the indian case and that seemed a little far out. it definitely gives you support on your statement. suppose you to justice scalia's example, we have iowa state rule 56, we interpret iowa state will 56 the same way as the federal rules of civil procedure. now, this is what it means in that case. they say, we are doing it under iowa state rule and you say we can review that because they said that iowa state rule is the
same as the federal. is that right? how do you fit that in the words of 1257? michael dreeben: i doubt that would satisfy the court. there is a theoretical and practical answer. i will give the practical answer first. the federal rule pretty uniformly say they will treat president as guidance in the decision as persuasive value. they recognize there are state rules of procedure and state rules of evidence that would belong to the state. justice: they say in a particular case, it is a great guidance, we agree, our interpretation is the federal interpretation. kelly review that because it was -- can we reviewed that because it was federal interpretation? yes or no? michael dreeben: there is a distinction to in this case and that that may suggest that this kit with the court has
jurisdiction over and that would does not. justice: you say it does not in the example of federal rules of procedure? michael dreeben: i am doubtful the court would have jurisdiction or choose to exercise it because i except for premises of the argument of your hypothetical, but in the real world, it does not happen. justice: when you say that is a doubtful case, i think you are acknowledging that if we adopt your argument, we're going to get that case and lots of similar cases. we are going to have to parse the words, the words that were used, by the state supreme court. well, we are following or guided by it or strongly guided by it, or adopted, we will get all of those cases. why should we go down that road when there is a perfectly available and possibly superior remedy available to the petition by filing a federal habeas? michael dreeben: several reasons, first of all, i do not think it will come up in that
way to the court because that's not the way the states treat their procedure. there is a principal in the cases that went federal law has been adopted as federal law, the court will review it even if the state could have chosen a different path. justice: what is the problem -- justice: could you list, when federal laws adopted as state law, the federal court can review it, is that what you meant to say? you are careful and don't make mistakes, but -- michael dreeben: justice kennedy -- justice: you said when federal law adopts federal law as federal law -- in line michael dreeben: -- michael dreeben: the state has adopted teague for no reason with the cases and that is because the state lawwill be applied to that federal case in a habeas case, so they have decided consciously to synchronize their lot with the law that they know will be
applied. this serves an important federalism purpose. the state says if we have to rectify in a constitutional error in our case that has become final, we would like the opportunity to do it. if the federal habeas court will treat this as retroactive, we would like the first crack at it. justice: you are saying hooray that the federal habeas court will be downed by it because the state got there first. michael dreeben: there is an elementary reason why that is not so. 2254d applies to state determinations on the merits, the only time that the deference provision takes them. a determination under teague is a special determination that comes before the decision on the merits. this court has said that in any number of cases. it is not a marriage resolution
of the case comes of deference to a state determination on retroactivity would never occur. justice: i was just going to suggest you are a little bit more on the merits. michael dreeben: certainly, mr. chief justice. the role an -- the rule in miller v. alabama goes beyond where youths are sentenced for homicide crimes. it compels thet new substitute sentencing options. an option that is less severe than life without parole. the only other time that this court has ever invalidated a mandatory sentencing provision was lipson versus north carolina in 1976. we went something like 36 years before we had another decision i concluded that the law must change to accommodate the compelling interest in having the characteristics of youth that mitigate culpability in the
sentencing process. justice: is it enough if the state simply says, ok, with prospective people who were mandatorily sentenced to life without parole, we will provide parole? michael dreeben: yes, that would be the same remedy the court ordered in graham v. florida case which held that use who did not commit homicide but are convicted of other crimes, cannot be sentenced to life without parole at all. the court remedied for that problem and could either be a sentence of terms of years or simply converting the life without parole sentence to life with parole sentence. justice: how do you explain how your articulation of your text would not supply -- applied to the guideline change? michael dreeben: i think the key difference is that with respect
to the guidelines, there was always a minimum and maximum set by statute, and the guidelines, even when they were mandatory, did not preclude judges from sentencing outside the guidelines depending upon the presence of aggravating or mitigating factors that were not taken into account. as justice alito's opinion for the court in ud united states v. why do this, even the top of a mandatory guideline range was not truly mandatory. even under the mandatory guidelines, which for the six the limit purposes, were treated as if they establish elementary offense, for the purposes that we are looking at here, they are not mandatory in the same way. so if brought about the procedural change. justice: [indiscernible] between your formulation and petitioner's formulation, it says this is substantive because it has done away with mandatory life in prison. you are articulating it is slightly different.
tommy what you see as the difference of white your articulation -- michael dreeben: i don't think there is any substantive to use the word between the daylight and petitioner's position and ours. the description of the crime of the issue as punishable by life in prison as to did as a category sums up the reality of what is happening. we broke it out into the component parts because at the get facilitates the allen -- the analysis of it to understand that miller does have a procedural component, sentencing court must now consider the mitigating characteristics of age, but it also and more fundamentally contains a substantive component that required a change in the law. the change would expand the range of outcomes. previously, or the court analyzed sensitive changes from the law, there have been changes that restricted the form of outcome. for example, in justice breyer's
hypothetical of privity -- of privity punishment at all, but if you trace back the origins of the substantive category to justice harlan's opinion in maggie, -- n maki, this is what justice harlan had in mind. justice harlan said the clearest case of injustice and not applying a rule retroactively is when it puts all criminal punishment. you cannot say that it is the only case. if you consider what is going on in miller and the reasons for the rule, the court made clear that it believed that of the 2000 people that were in prison and under mandatory life for juvenile homicide, the court believed that that penalty was frequently disproportionate and that it would be uncommonly imposed in the future and that it was not a sentence that was consistent in most cases with the mitigating characteristics of youth that have been recognized in roper, graham, and miller. justice: would it be accurate to
say that google is substantive if it makes -- that a rule is substantive if it makes an outcome much less likely that much, much less likely than was previously the case? michael dreeben: probably the last, justice alito. when the court characterized substantive roles -- justice: much less likely or much, much less likely? michael dreeben: the court has said that the substantive rule creates a significant risk that the person is serving a sentence that is not appropriate for that person, maybe not even legally available. it did not say absolutely, conclusively, it said significant risk. in contrast when the court has talked about procedural rules, rules that govern the manner and was -- in which the case is adjudicated, it said the potential for a different outcome is speculative. if you put this case on the speculative significant risk access, this case falls in the significant risk domain, precisely because of the reasons why the court said it was deciding miller.
the reason why the court decided miller had to do with the reduced culpability of youth and the capacity of youth to mature, change, and achieve a degree every -- rehabilitation that is consistent with something less than the most harsh sentence available or used to commit murder, terrible crime, but still the harshest sentence the court that would be reserved for worst of the worst which was what louisiana said when it amended its statutes substantively to conform them to miller. instead life without parole should be reserved to the worst offenders who commit the worst crimes. when you combine the fact that this is not a rule that does not just govern procedure and evidence, it also mandates changes in outcomes as an available option with the very genesis of the miller rule in the conclusion that, for the people in this class, the appropriateness of the punishment of the harshest degree, life without parole, will be relatively uncommon and seems clear that the miller rule
falls on the substantive side rather than on the procedural side. justice: any state with miller habeas habeas has retroactive on state? michael dreeben: -- justice: any state with miller has attracted on this date habeas? michael dreeben: yes, they have concluded miller is retroactive and most have been asked substantive law. there are a couple of opinions that talk about the watershed exception which is not the way that we think this case should be analyzed, but not only did the states do that, but the united states has taken that position with respect to the juveniles that were sentenced before miller to life without parole as the mandatory sentence. the resentencing of those that have taken place so far, only about 10, but those defendants have almost uniformly received
sentences that our terms of years significantly shorter. justice: what is the population we are dealing with is most states to apply the miller retroactively? is it the figure of 2000 people with life without parole? michael dreeben: i have not -- may i answer? i have not broken it down numerically, but michigan has not applied it retroactively and it has a large population of juveniles who are in the miller class and i don't think pennsylvania has resolved or not favorably yet for the defendants. justice: thank you, counsel. mr. duncan? mr. duncan: i was going to begin by saying i would proceed to the merits but i believe there are serious questions about
jurisdiction so i would like to begin there. we are in opposition with respect intersection because we went to the fifth circuit on federal habeas which is not that miller is not retroactive. why have we not contested jurisdiction? we believe as the believe this is a straightforward case and not the standard v michigan. l -- michigan v. long case but an interwoven case, meaning that there is no doubt that in the previous louisiana supreme court opinion that the states of we would voluntarily adopt teague, no doubt about that, we think that raises the possibility for an opinion from the court. why do we say it does not? in cases like coleman and thompson, the court said the federal law holds integral to the disposition of the matter and there is no risk of an advisory opinion. later in common, the court said only a resolution to the federal court could not affect the judgment is the risk of an advisory opinion. we do not think there is the risk of an advisory opinion, it
is within the rock of possibility, we doubt it will happen but it could happen, what on remand, the supreme court could say, we have seen what you think about teague, we will adopt out retroactivity as some states have done, and that is does this make this court's opinion advisory? we think not. the solicitor general has talked about cases like standard oil v. johnson, where the state was under no obligation to tether its state law -- justice: it did not say so, though. in the standard oil, this is a quote -- "the relationship between both exchanges and the
government of the united states is controlled by federal law." kyle duncan: that is right, my point is that was embedded in -- a tax exception statute. it made certain taxes exempt from the statute and the exemption -- justice: that would have been to no matter what the state did, right? we are deciding the question of federal law that would have applied on its own. kyle duncan: well, with respect to standard oil, my point is that the state did not have to make their tax exempt status turn on a federal question, it did, so that resulted -- justice: i'm not just saying it made the tax exemption log turn on federal law because there is federal constitutional requirements in that area, could the state have taxed -- there is the question of whether or not the supremacy clause would permit the state to tax sales to the post exchanges? kyle duncan: i think that is possible but they do not make the decision dependent on that. justice: the provision i just quoted said the relationship between most exchanges and the government of the united states is controlled by federal law.
kyle duncan: take the instance of ohio where the state made the transaction with statute turn on the validity of privilege. this court addressed that discrete federal issue. justice: isn't it quite similar when justice scalia uses controlled by which that louisiana supreme court has used similar language. it is dictated by teague. it is only dictated by teague because they have chosen to make it dictated by teague, but once the choice has been made, all outcomes are dictated by teague. kyle duncan: we agree with that. we believe it is "binding" within the meaning of binding federal law because the state has chosen to do it and it has never shown it would not do it. we think -- if the court disagrees with us on that -- justice: in ohio v. rhino, is there any other way in which the state could of retained review of the state supreme court's
erroneous determination that the witness in question did not ask a fifth amendment privilege because she said she did not commit the crime? kyle duncan: i don't think so. justice: you don't think there is a decision between that case and this case? kyle duncan: if the teague standard is a discrete, federal standard the state has incorporated, well, the louisiana supreme court -- the defendant could go to federal habeas, but it does not seem to talk about their view of the supreme court decision within a different with respect to this court's jurisdiction. it might mean this court will plate for a more robust -- that this court will wait for more robust case but this case goes to the second reason why we have not looked at jurisdiction and all, because there is a robust on this second specific issue robust split on this direct -- on this specific issue that extends to something like state and federal courts.
they are all deciding the same federal issue. so it seems to us that as a practical matter this court ought to weigh in. it's going to weigh in sooner or mother -- later on a federal habeas corpus state court. justice scalia: we weigh in when we have jurisdiction. you don't think that matters at all? mr. duncan: of course it matters, justice scalia, of course it does. justice scalia: what you said doesn't make much sense. mr. duncan: i think it makes sense. justice scalia: let's get in there quickly, whether we have jurisdiction or not. you are not saying that, are you? mr. duncan: we are not saying that.
we are saying the federal issues generally into open with state law and there's no independent grounds then this court has jurisdiction to decide the case. otherwise, wait for a federal habeas corpus. receiving to the merit. in miller this court was invited -- justice breyer: we deliberately have jurisdiction, don't we? i'm trying to figure this out. in my mind we have jurisdiction where there is a person that's the defendant and the defendant says the court's decision that's your courts decision is contrary to the constitution or statute of the united states. that's just what they say. mr. duncan: that answers the question. justice breyer: so we have jurisdiction to answer the question. now, the question is how do we dispose of the case in which we have jurisdiction? and we have three cases, i guess, in which the court has done in disposing of such a case once solicitor general says. namely, they have said, we are we are not going to say whether he's right in saying it's contrary to the constitution. that's because there might be an adequate state ground; there
might not be. the adequate state ground was one that was was elucidated or explained as being flowing flowin -- flowing from a certain interpretation of federal law. mr. duncan: well that is -- justice breyer: we will say their interpretation of federal law was wrong, and now we will send it back to see what they do. is that right? have i got that right? mr. duncan: that is our position. and by the way -- justice scalia: what is the federal law you are talking about? mr. duncan: the application of teague to miller. justice scalia: and teague is an interpretation of that federal law. mr. duncan: well -- justice scalia: was that federal law at issue in this case? mr. duncan: the teague standard. justice scalia: of course it wasn't. justice breyer: but the teague standard, the teague exceptions and dwell because traditionally required. the teague exception -- justice scalia: have we ever said that? mr. duncan: you have not. and that is why we do not take a
position on that. justice scalia: you want us to hold that in this case? mr. duncan: we do not want you to say that in this case. chief justice roberts: did we say that in danforth? mr. duncan: you left the question open in danforth. justice sotomayor: could you tell me why you would think that something like atkins would not be retroactive to states? mr. duncan: -- >> as a compulsion, not as by election of teague retroactivity. mr. duncan: that is a difficult question that we don't take a position on. but to answer your question, justice sotomayor, the argument goes that danforth made clear that he is an equitable education to federal hideous statute, it's not constitutionally binding on the state, and that the court left open whether the expect patience -- exceptions are binding, but exceptions were part and parcel of justice harlan's mackey understanding of how he thought cbs ought to apply. and so where is atkins creates a binding constitutional right, the question of remedy, though. the question of the state constitutionally bound to offer that remedy.
and this court has recognized, in cases in pennsylvania versus finlay, for example, that the states have a white discretion in structuring the past conviction. and the next point, it has to do with fidelity. justice sotomayor: it has to do something different because as justice breyer pointed out when you have wide discretion to structure it as you want. but if you structured it in a way that you're going to say i am offering to process, is there not a check, a substantive check id process? mr. dr.: well -- >> justice sotomayor, that you have to offer 19 minimum? mr. duncan: well, i mean, that is the question. so this court has found that there is a substantive check into processing griffith where were talking about direct review. we were talking about collateral review, our vehicle although we haven't taken and if -- a position on it, collateral review is a different animal for purposes of -- >> justice sotomayor: but we have a number of cases where the
states have viewed the exceptions is controlling the fact that they have to operate because constitutional minimum. mr. duncan: this court has ever held that. justice sotomayor: hasn't yet. mr. duncan: unless -- >> justice and we are, and why shouldn't we? mr. duncan: i understand. justice sotomayor: that's really the serious question. mr. duncan: it it it is a serious question. we, as again we have nothing in position on that question because deal but the federal law is a matter of state retroactivity. in miller, this court was invited to categorically bar the penalty of life without parole for juveniles who commit murder, but he decided not to do so. now the decision is strictly to the conclusion, in our view, that miller is not subject to substantial rule undertakes first exception. consideration of the teague framework, teague policies, and teague precedent points instead to the conclusion that miller is procedural and not a substantive rule. so we think summerlin most how fully sets out the framework that ought to govern this question justice: can i give you just a hypothetical. suppose that there is a stated was a mandatory minimum for a theft. does the mentor name for theft is 20 years. and suppose a court looks at the and says you know what, that is incredibly disproportionate to a lot of theft and so strikes the mandatory minimum. you cannot have a minimum order or like that, make it lower. would that be a substantive ruling? mr. duncan: we don't think so.
justice kagan: because the mandatory aspect of it goes to the manner of imposing a ballot -- imposing a penalty. justice kagan: it does not go to the manner of imposing. it says that mesh nothing about the manner of imposing. what it does is it just increases the range of something possibilities. and actually is it to the course. it says that fully nothing about what factors are to be taken into account. nothing about that at all. all is says is you cannot have a mandatory minimum of 20 years for theft and make it lower. mr. duncan: well, so in in if in that hypothetical that doesn't go to the manner of imposing penalty, that is different than miller because miller made very clear that the mandatory aspect of the penalty is to the manner of imposing the penalty. justice kagan: so if you're saying, no, that's different because there's something else in miller. there is a cause. there is a process voted of miller, and a question about it, where the court says what courts are supposed to look at is the interest of youth and are supposed to try to figure out
whether these terrible crimes or functions, in part of the majority or not. whether you really are looking at it in corridor bull defendant. through that process component. but that process component is nothing with effect that there is a completely separate, self-sufficient component as to what the range of punishment has to be. that's completely on all fours with the hypothetical i gave you. mr. duncan: lawyer justice, the relevant difference in terms of teague analysis is that this court in miller did not take the punishment of life about for all, the distinction of category of punishment of life for a desktop roll off the table. this court has never held that it noncategorical rule is substantive undertake. and it's done that for good reasons. that would fly in the face of the politics that policies that inform the teague analysis. justice kagan: no, you're exactly right. it did not take lwop punishment off the table. but similarly, in my hypothetical a 20 year sentence for theft was not taken off the table. with the court has done is to say there has to be other options. there has to be an option of 10
years or five years or two years, whatever it is. so they've expanded the range of possibilities. they've just made the senses different because this sentence is to find both by the upper end and its lower end. they made the sentence different. mr. duncan: i understand that. but making this is different doesn't necessarily make it substantive under the pink framework. here's another way of looking at it. the defendant in a juvenile murderer who committed murder and is serving a life without parole sentence today, pre-miller, is not facing a punishment the law cannot impose upon them. and we know that from miller because eller said that the court's decision does not preclude a punishment. and so that goes to fidelity. the finale interests underlie convictions do not yield with the state still has the power to impose the punishment.
fidelity interest yield, justin harlan explained in mackey in this court adopted into, finale intersex yield only when this lacks the power. that's where the fidelity interest crumble so to speak up because the state no liquor can impose that category of ability. so that would go for roper. it would go for graham. it would go for justice breyer's sedition or which crimes. somebody is in jail because they were accused of being a witch than the state has interest -- no fidelity interest in keeping that person in jail. but by the same token, if the punishment is death for a juvenile, the state as the fidelity interest in doing that. saluting the punishment on the table is crucial. if he doesn't take it off, it's not listed to the second policy reason for teague is avoiding adverse consequences of retrial. we think miller is even more clearly not substantive under that standard because categorical rules apply retroactively, as justice harlan explained, because they do not carry the adverse consequences of retrial. you don't make it go back and redo the trial and unearth all facts and reinstate resources and come up with a distorted retrial.
miller, by its nature, envisioned a fact intensive hearing that considers multiple characteristics at the same time. justice kennedy: but you don't have a distorted new trial if if you're just granted a parole hearing. mr. duncan: that's right. but that's, of course, not what miller would require. that's what graham would require. because graham is obviously a categorical rule that says you can no longer impose that punishment, so you have to give them a parole hearing or some meaningful way of release. miller is about the step before before whether to give a parole hearing. whether the person can be eligible for parole at the outset. that we're talking about in that's the inquiry miller, and that's quite different from a parole hearing.
the fact of the matter is, though, is that applying miller retroactively inevitably turns the miller hearing into a parole hearing which shows that it doesn't quite work in terms of adverse procedures. suppose you look at the watershed procedural change. my impression from the case you cited, severally, is that deciding whether it is retroactive in parts. i think we were unanimous on this point. the two parts were, is it implicit in the concept of ordered liberty, and here it would seem to be because it's applicable to the states. and the second is, is essential to an accurate determination that life without roll is a legally appropriate punishment? and the rule that mandatory cannot exist essential to making that what whole point of the miller opinion. so this the correct analysis for the watershed rule, procedural rule, that's retroactive if i'm an -- accurate about that, why doesn't it fit within that category? tradeking: what let's take the first one. it is not just implicit in the concept of ordered liberty. the way that the watershed rule
has been stated and the first prong of it is is that has to alter our understanding of bedrock procedural elements necessary for fundamental fairness. and this would be strange case to find that it because miller itself does not represent ephedra revolution in sentencing practices. it takes us into practice from another arrogant and puts it in this new area. susan incremental change in that sense. it is not a wholesale discovery of new bedrock procedural elements the way we had in a case like idiot versus ray and white. and so i think this court explained important versus boxing that it is not enough that the will be fundamental in some abstracts cents. but it has to itself represent a change in bedrock central understandings. and we don't think miller does that. we also does think it is necessary to an accurate determination of a sentence. it would enhance the accuracy of sense, but it is not necessary. and the other point there is this court has never held that a sentence that if your sentencing role can qualify under watershed because after all this court has on many occasions said that he watershed rules necessary to the accurate determination of guilt or it is and here we are talking about a sentence.
so we agree with united dates that watershed procedural analysis is not the way to go here but it does raise an interesting question. in summerland, because after all we do part company quite strongly from united's when the united states says we need an outcome in alteration to the definition of substantive rules undertake we say that's just a slight sweet -- tweaked to take. but that is is a change in the of standing up one of substantive rule as brave substantive rules undertake analysis of never been depended on the frequency with which the outcomes might come about under the new procedures. in fact, in summerland and this goes back into my original point about the framework. summerland explained that a criminal defendant under a procedural rule does have the opportunity of getting a more leading in the new procedures. and nonetheless summerland said that not much procedural rules are not applied retroactively. and so, as justice alito he was
saying, this difference between a substantive and procedural rule undertake is that when it is very likely or very likely to result in a new outcome. it is about whether the new rule categorically removes the part of the state to impose a category of punishment. that is what a categorical rule does. it is not what miller does. miller may express a next occasion but the way that the miller hearings will come out. and that we are enough and fast the future. wouldcan point to cases criminal defendants have had a occurring since he'll been received with life without parole. i can point to several in particular from the state of louisiana under his new miller procedures. but the being that the idea five changing outcomes -- the idf changing outcomes, which is what the entire states entire argument depends on is built as the procedural side of tea can not the substantive side. the substantive side is -- >> i think not. i think are your definitions fits him substantive side. he said he can categorically
remove an outcome. in essence" miller does. as long as innocent, which i think you're greeted with, as defined by both its upper and lower and, effectively with the court said in miller was that the sentence, which is the mandatory life without parole sense, cannot control for juveniles cents range. there has to be the one that includes other punishments. and that increases the -- >> it does not categorically bar in penalty. justice kagan: it allows something within the range. but it has completely changed the rain that's given for any juvenile defendants. and the rate is important. it's not the just the top end. that's what we said in alleyne, that you can't think about a sentence without the kebab of parsons sense, the maximum and minimum. and when you decide with her substantive change in athens has been made for you have maximum and the minimum.
>> i hope this is concept. i think after miller we would see two categories of punishment on the table. we would see a lifewithoutparole category and lifewithparole, for example. but my point is is that miller does not ban the first category and that is determinative or whether or not some think is substantive. justice scalia: i'm i would not describe changing the range of sentences available as changing the sentence. mr. duncan: concealment on the table, i is what most you would say. justice scalia call it doesn't change the sentence. mr. duncan: yes. justice scalia: necessarily. mr. duncan: right. justice scalia: you still get the same sentence. mr. duncan coley is still absolutely get the same sentence. we said, it's possible to justice kagan: that is what we said last year. we said it is possible to disassociate the floor of sensing range from the penalty effects of the crime.
as an loyalty with a criminal statutes have long specified both the floor and ceiling of sensing ranges will which is evidence that both define the legally prescribed penalty. justice kagan: that is the penalty. what miller does is create the procedural circumstances for finding a putting in penalty on the table, which is the point of the united states argument. there is a new possibility. and our point is to say the creative possibility of the table to static with the state's power to impose field category of punishment. justice sotomayor: we know that we do not ever look at this issue. reading the wrong one. i apologize. but you really think that we -- that any state would have not applied woodson retroactively? justice sotomayor: they all did. probably not your honor. the question is that course a preaching case. it raises the question, is woodson substantive or
procedural undertake. and our argument is that it's a procedural rule. justice sotomayor: why? mr. duncan: it's a procedural rule. justice sotomayor: it just said you couldn't have mandatory death penalty's. just like your company cannot have mandatory life without role. mr. duncan: right. it required an individualized sentencing. justice sotomayor: it says this exactly. mr. duncan: process which we say is procedure. justice sotomayor: and to give census less than -- >> it would put new -- >> mandatory death. but they still could have given death. >> they could have. so the question is whether it's at substantive or procedural under the t gruber, which of course it was a preaching case. i think the most we can say about it is not stance of undertake for the reasons that we have set. now the question is was it a watershed procedural rule. justice breyer: all right. but that's the language red rock. i do not think it is the railing which because that was the language or for two incentives and mckay. i've just been looking it up. and in tickets of, justice
o'connor try to get the right words and when she has appears that the procedural is the first test, first part, and be addressed by limiting the scope of the second exception. best of watershed rule toprocedures without which the likelihood of an accurate depiction is seriously diminished. ok. mr. duncan: that's the first one. justice breyer: and that's joined by the chief justice, justice scalia, and the fourth, i cannot remember. but is it seriously diminished? when we read through miller, industry hard to say. miller is just filled paragraph after paragraph about how mandatory requirement for life without parole fails to take into account all the characteristics or many characteristics inherited is. it is pretty hard to convoy from the thinking under mandatory life of parole committee
seriously diminished in see of imposing life without parole when you apply it to a youth justice breyer: no, no. but you have to say the accuracy is seriously diminished. i do not think there will be any such cases. mr. duncan: well, again, take we haven't talked about capital sensing cases, but take a case like o'dell were the capital jury was not informed of the defendants parole eligibility will consider its future dangerousness. i mean one could easily say that the accuracy of the resulting death sentence under the old role seriously diminished and yet this court said it no doubt that it is not a watershed procedural rule. a goat on the line with these cases, the beard case of the sawyer case. these are cases in which the defendant did good of said can safely diminished accuracy. and yet the court found a watershed rule. and of course the bedrock is what the word was referring to in the exception particularly in whorton v. bockting. justice ginsburg: is there any watershed procedural rule other than gideon? mr. duncan: well, this court said,
it is doubtful and he will emerge break so we think this case is an implausible case for a new watershed rule to emerge as the role and back to the better point it is not creating revolutionary bedrock understanding of procedure. it's an incremental step instead of saying juveniles -- something -- sentencing juveniles. suffolk is like crawford is not a watershed procedural rule, then it's is difficult to understand how this one would be. justice ginsburg: we have one brief that tells us this court has never hard part is meant as cruel, unusual on the eighth and mr. the eighth admin, refused to make the decision retroactive. duncan: well, we disagree with that. there are cases take the take the case that refused to make
retroactive the rule in caldwell v. mississippi. that's an eighth amendment case that goes to the accuracy of a tech that capital jury sends a determination of death. and this court didn't make that will and found that is procedural and non-watershed same time. so we take issue with that. just a few more words about the united states proposed expansion of take. it would shift the whole focus of what is substantive rule from the category nature of rule to the effects of the role. so that if any defendant in these couples and cases we've been talking about would now have the argument headed to the by the unit is days that says that rule gave me the opportunity for a better outcome. i might not a cow the death penalty of my jury had been properly instructed. we don't ownership of the united states new role in this case can be combined where only a mandatory sentences taken off the table. >> but you said yourself, the difference is one where there's a category some cases that to refer to process, how decision-maker makes a particular resulted in the
category of cases referred to what we called substance, which is the result on the table, what category punishment is on the table. and that's the difference between this and all the other kinds of things you're mentioning. justice kagan: this is not about punishments on the table. mr. duncan: well, i just have to push back on the premises little bit, where our position is not that a substantial rules about what punishments are on the table. a substantive rule is about whether a state category has the power to impose a category punishment. here it's clear from the miller opinion and from the grayer from -- from the graham opinion that the relevant categories life without parole in the state still has the failure to impose that punishment, and that's what is a sharp distinction from what i see droll rule is. in the united states new conception of what a substantive
rule is would wear that a recall and question all of the capital sensing cases and i heard a question, about booker. and resurrection to that is the grazing matter of six amendment under sensing mandatory. and it really opened up new sentencing outcomes. and so by what reason would a federal atheist petitioner now. sandra the men's eights new test it is retroactive or alleyne for that matter. alleyne overturned the mandatory under the sixth amendment, opening up new sentencing outcomes. why couldn't a federal defendant on federal hideous say i also get the benefit of that rule retroactively. our position is those cases are clearly procedural, as is this explained in sierra v. summerlin. they're clearly procedural under the teague rubric. and what the united states could
do is learn these categories. if there are no further questions. chief justice roberts: thank you, counsel. mr. bernstein, you have three minutes 14 remaining. mr. bernstein: what this fantastic discussion has shown is why the the court, as it has in the pass code should keep the tea sections as a matter of equitable discretion rather than the constitutional are met. the court has met for freedom, generally speaking on the matter of equitable discretion that it is unconstitutional or miss. >> all weekend long, on the road to the white house, we are taking your comments on twitter, facebook, and by phone. every campaign event we cover is available on our website at c-span.org. >> democratic residential killing hillary clinton was in new hampshire friday for a town hall at keene state college. she talked about student debt, lgbt writes, and drug addiction. she also discussed gun safety, and an alternative group to the national rifle association. this is an hour and a half. ms. clinton: thank you. -- the court never would go on
to say we will -- affiliatedn three trials there was no question there was a federal statute that limited state court jurisdiction. we have the opposite here. there was no question that the federal statute does not apply to the state court and yet people say you should decide the , even though the underlying issue may be one of state law. to the solicitor general's new argument that there will be a review on this court and a review on the hay bs. the statutory language is pretty broad. any claim that was adjudicated on the merits of state court proceeding, the only claim in this case is remedied. this case was filed after miller was decided.
that would be a very wonderful term. if you can say on the one hand it doesn't apply, but on the other hand 1257 applies, when it claimed federal law, which gets to your is it enough a state courts as we voluntarily want to be bound? going out of its way to show how federal law is finding on the interstate commerce conduct. plain in the language. binding in federal law means binding all 50 states.
>> you have three minutes. >> i would like to make two quick points. first of all the jurisdiction. constitutional question about whether due -- ess requires miller said that juvenile homicide offenders should not have to die in prison with no chance of rehabilitation and no consideration of youth. that important rule changed the substantive outcomes available. this court said the life without prisonthat life in should be uncommon. the individual sentences that remains above 1500 deserve a chance of redemption. bernstein, the court-appointed you to argue this case against this court's jurisdiction. ably discharged that responsibility, for which the court is grateful.
the case is submitted. afternoon here on c-span, the senate judiciary committee meeting to repeal legislation on sentencing and create two of new mandatory minimums, five years for aiding terrorists and 10 years for death resulting from domestic violence that cross state lines. i've covered from the hearing here on c-span. congress returns with a number of issues on their agenda, including immigration, national that, and the budget. another measure would reauthorize federal school vouchers for students in washington dc. house, athe week the reconciliation package to repeal sections of the health care law and defund planned parenthood. you can watch it tomorrow starting at noon eastern. .nd the senate back in session cities that do not prosecute undocumented immigrants and
comply with other federal immigration laws. theirow they will take first votes on a judicial nomination in the morning and work on a procedural vote in the afternoon. you can watch live seven -- live senate coverage on c-span two. >> by 1830 the mississippi river around new orleans had become a breeding ground for yellow due topartly slaughterhouses dumping their byproducts in the river. louisiana all only -- louisiana allowed only one slaughterhouse to operate in the district. all the slaughterhouse cases of 1873. we are joined by constitutional law attorney and author of the book "justice of shattered ," to tell the stories of
the butchers and the state of new orleans, as well as the attorneys of -- be sure to join the conversation as we take your calls, tweets, and facebook comment. on c-span, c-span3, and c-span radio. order your copy of the landmark cases companion book. fors available for 895 -- $8.95. >> a signature feature of book tv is our all-day coverage of book fairs and festivals from across the country, with top nonfiction authors. we're live in the nation's heartland. at the start of november we are back on the east coast for the boston book festival.
it is the louisiana book festival. at the end of november we are live for the 18th year in a row from florida for the miami took fair international. and the national book awards from new york city. some of the fairs and festivals this fall on c-span2's book tv. next, i discussion among ceos about the effects of government regulations and the tax code on businesses in america, hosted by the steamboat institute in colorado. >> thank you very much. we hope to the next hour and 15 minutes is enjoyable for you. let me first introduce peter
coors from miller coors. -- pete is chairman of miller coors light, a colorado native, we like that. and, i probably think the most recognizable colorado native that we have a colorado right now. [applause] the course name has become synonymous with colorado. i think you and the family with that. coors doing is a tradition that stretches over five generations of family now. it was started by pete's great-grandfather, adolph coors, in 1973. in addition to his corporate responsibilities, pete has positions in the american enterprise institute, the national western stock show, the denver art museum, and is president of the adolph coors foundation. i want to mention one other great thing about pete and that family is the amount of
philanthropy and support that they give to our state, nation, and the american culture. i think it is pretty much unmatched. [applause] i will mention one award that i think is particularly appropriate, and that is in 2010, when he was named citizen of the west. peter coors, thank you for being with us. [applause] our second panelist is paul dietzel. paul dietzel is an entrepreneur extraordinary. he founded a company called
anedot. anedot is a technology company located in baton rouge, louisiana. he was also 2014 candidate for the louisiana congressional seat in louisiana district six. anedot today, 3 years later, is the leading software platform in the u.s. more members of both parties use anedot than any other system for financial resolutions. they give religious organizations, individuals, and nonprofits the ability to securely collect -- in three years, they have collected donations in all 50 states and from 23 foreign nations. it is a pretty amazing record. if his name seems familiar to you for somehow, it is with good reason. his grandfather was the legendary coach paul dietzel at ellis seo, later coached to west point. welcome, paul dietzel. [applause] my good friend, heidi ganahl, has a good story. she is founder and ceo of camp
bow wow, the largest pet care franchise in all of north america. heidi's was not an easy path to success. she lost her first husband and her tragic plane crash when he was just 25 years old, in fact, on his 25th are they. close to being out of money and out of hope, not too many years after that, heidi opened her very first franchise facility in 2000 in denver. she now has over 200 franchises. cap bow wow is now one of the largest women led franchises in the country, one of the
fastest-growing brands in the pet care industry, and a hundred million dollar leader in the pet care sector. she was recently recognized as one of the 10 most promising entrepreneurs at the fortune most powerful women summit. she is an advisory on the advisory board for the leadership program of the rockies. she also founded something unique, a nonprofit that she calls "moms fight back," to empower moms to make social change. she is a mother of four children herself. welcome, heidi ganahl. [applause] jim nyman is the vice president and ceo of neiman enterprises, a third-generation forest products company founded in 1936. with two facilities and south dakota, one in wyoming, and one in colorado, the family is also in the ranching business, and owns a golf club in wyoming. jim's son marcus is the fourth generation to work in the company.
congratulations to get another family business. jim and the family have been recognized by the small business association as small business person of the year from the better business bureau, the united states forest service for their stewardship award, and as the company of the year. his leadership positions, both past and present, on the wyoming health and safety commission, the stabilization board, independent forest products association, president of the university of wyoming board of trustees, chairman of the diversity of wyoming school of
environmental resources, on and on, and last, but certainly not least, jim is also on the economic advisory board for the federal reserve bank of kansas city. ladies and gentlemen, i think you would agree, you have an exceptional panel here today. [applause] i am going to invite each of our four panelist to make a brief opening remark about the state of affairs, whatever they think is important to say to you today. pete, do you want to go first? mr. coors: thank you for the unnecessary introduction. bob said, when you prefer this, why don't you say something about yourself in the introduction. i can save a lot of time because you already did it.
the one thing you left out is i had the privilege of being a candidate for the united states senate in 2004. many of you were helpful in that. [applause] we have something in common up here, we all lost our last elections. [laughter] unfortunately. i think we will get into some of the details of the business as we go through the day. i will pass it on to all. -- to paul. mr. dietzal: it is humbling to be on the stage with such business leaders. i look to them for what i can become in the next 10-20 years of my life. looking at the business climate in our country, it is really fascinating to me -- even just
3-5 years ago, it was easier than it is today to start businesses. you look at the amount of pages and the tax code, the amount of regulations that make it harder for entrepreneurs to jump in and create a business. you look at every day that the government is taking on -- picking on businesses. i think one of the things that we have to do is unlock the next generation. we have to get the next generation of leaders and animators active and involves an engaged. that is why i am excited to see so many millennial's speaking at this. guy vincent, and a handful of others. it is a pleasure to be here with you. thank you. ms. ganahl: i know about of you in this room, and i think those that know me know how passionate i am about entrepreneurship and innovation, and how i think that is the key to unlocking potential and our country. the youth need the kurds to
start new businesses and be excited about it. i spent a lot of time talking to college and high school kids about the beauty of starting your own business. nowadays, they can do it with the click of a mouse or their phone. i think, it is unfortunate that the business environment is not very good for starting your own business anymore. it is a lot different from when i started camp bow wow. government overreach, taxes -- it is so complicated to start a business these days. my husband, jason, is starting a new barbecue restaurant. starting a single unit restaurant in westminster has been mindnumbing. that is my passion. my other passion is mom and kids, and keeping our country great for our kids, which is why i started "mom fight back," and i really encourage moms to get involved and be the courage they want to see in politics and the world.
i think we can really listen up and give them a voice. i think they are the swing vote in colorado. let's see how that goes. [applause] mr. neiman: what an honor to be part of this group. it is a humbling honor. i am blessed to be part of it. thank you for the great introduction. i want to go back one step that was missed. my granddad was a corn farmer in the great depression in east colorado, and had to sell out. my granddad then went north and started making grain doors for the railroad business. that is how he got started in 1936. i jumped to my children, well, my dad, who was 6 years old then.
he is now 85. we have him to halftime, which, in his view, 12 hours a day. i am proud of my children. my daughter is working for organization in dallas, the halftime institute, which some of you may know about. my son just got deployed. he is heading over seas here pretty soon. rep. beauprez: god bless him and you. [applause] mr. neiman: when i started, we had 15 employees. now we have 480, and 380 other independent contractors that our lawyer to us -- loyal to us on top of the employee base.
our company is 80% dependent on the four services. we look uniquely at the four services as a partner. they are our business partner, but their hands are tied. we have stressed the four services -- forest services with regulation after regulation. endangered species drives me nuts to see that we will protect millions and millions of acres for one species at the expense of many other species. how about humans? particularly, in our industry, most of our sawmills are in small communities. that is the lifeblood for agriculture and the timber industry.
they could be destroyed. when our business is destroyed, it could destroy a whole community. just a quick note, our forests are clearly overstocked. they are not healthy right now. that is why we have a bug epidemic. there are a lot of reasons that people look to. with those dead trees, the fires. my next challenge that strikes me currently is the exchange rate. the currency exchange rate between us and canada, canada on thened close to $.30 dollar in the last 18 months. guess what? lumber prices have toppled in the direct relationship with