Hypotheticals about hunting lodges and Motel 6 saved the oral argument at the U.S. Supreme Court Tuesday from being strangled by legal weeds.
At issue was a Los Angeles ordinance that requires hotel and motel owners to record various pieces of information about their guests — drivers license, credit card and automobile tags, for instance. The hotel owners don't dispute they have to do that; what they do dispute is the part of the law that requires proprietors to make this information available to any member of the Los Angeles Police Department upon demand.
The city contends the law is a necessary and important tool for fighting prostitution, drug trafficking and other crimes. The hotel and motel owners, some of them mom and pop operations, contend they are harassed by police, who sometimes show up for inspections of their records in the middle of the night. They contend that police should at least have a subpoena in hand, allowing the proprietors to challenge the inspection in court if they think they are being harassed.
The justices were animated at the argument, though spectators seemed on occasion to get an acute case of MEGO — my eyes glaze over.
What saved the day was, first, a hypothetical from Justice Elena Kagan. A New York City native, Kagan has become something of a hunter under the tutelage of her colleague Justice Antonin Scalia, who has mounted on his wall in chambers the giant head of an elk he shot.
Suppose, Kagan asked, that a law like the Los Angeles ordinance were enacted for hunting lodges, requiring record-keeping about "how much people shoot and when they shoot ... and what they shoot" and the state fish and wildlife service wants to make "spot inspections, surprise inspections all the time" to verify the accuracy of the lodges' record-keeping.
Scalia perked up, asking, "Is this a public hunting lodge?" No, replied Kagan, "It's a private hunting lodge," noting that the case before the court involved a private hotel.
"That's a big difference," mused Scalia, looking to the government's counsel, Michael Dreeben, for an answer.
Dreeben, a longtime Supreme Court advocate, knew better than to bite. "I will have to defer to members of the court on hunting lodges," he said.
Harrumphed Scalia: "I do think there would be a big dispute, with regard to private hunting lodges, whether you could require them to keep the records."
The protective instinct for the hunting lodges, however, didn't seem to extend to Motel 6 when lawyer Thomas Goldstein argued that some court supervision is required for inspections at hotels and motels in Los Angeles.
Goldstein conceded that the city's hotels and motels have to keep the records required by law.
Justice Anthony Kennedy pounced on that concession, saying that law enforcement is the obvious reason that hotels know they must record such information.
Goldstein disagreed, arguing that innkeepers have long held on to such information because they they use it to keep in touch with their customers. "Every business does," said Goldstein. "It's quite proprietary information."
"Motel 6 does this?" cut in Scalia. "Jeez, I've never received anything from them!"
Well, replied Goldstein, as laughter bubbled up in the courtroom, "You may not be on their frequent guest" list.