HUFFMAN v. BOERSEN
Argument of Leo Eisenstatt
Chief Justice Warren E. Burger: -- first this morning in number 71-5097, Huffman against Boersen.
Mr. Eisenstatt, you may proceed whenever you're ready.
Mr. Leo Eisenstatt: Mr. Chief Justice, may it please the Court.
This case is on petition for writ of certiorari from the Supreme Court of the State of Nebraska and involves in its essence a -- several questions involving the annulment of a marriage, a determination of paternity and the allowance or granting or the violation thereof the right to be present at trial.
These proceedings now before the Court commenced by the filing of a petition for annulment in the District Court of Hall County, Nebraska, Grand Island approximately in the middle of the state.
The defendant in that case, petitioner here Harold Eugene Hoffman was at that time incarcerated in the state penitentiary in Lincoln, Nebraska approximately a 110 miles away.
Throughout the proceedings, Mr. Huffman appeared pro se until the appointment of counsel by this Court in response to his request for a writ of certiorari.
The essential facts, as we view them, would be that on March 5, 1969, these two parties, Harold Eugene Hoffman and Faye Boersen were married in Las Vegas, Nevada.
At that time, the parties had been living in Hamilton County, adjoining Hall County in a small town known as Giltner, Nebraska.
At that time, there was -- there had been filed by Faye, a petition for divorce from a marriage contracted according to the record with Richard A. Boersen and with respect to whom there were two children at that time of the marriage.
Now the, and I will get into the facts in a little more detail, the petitioner's view of the issues in this case are in two general areas, and that is, was the equal protection of the laws violated with respect to the petitioner by reason of the dismissal of his appeal in that annulment case by the Nebraska Supreme Court because he failed to file a $75 cost security, bond or cash in lieu thereof, and secondly, were his rights to be present at the trial violated when he was incarcerated at the state penitentiary at the time of the trial.
The facts are not in dispute and although there are lengthy pleadings on file, a distillation of those facts in our opinion could not make the facts very complicated.
Now, before referring to these additional facts, I would like to footnote Nebraska provisions dealing with the matter of appeal.
Since its founding, the State of Nebraska has had in its Bill of Rights, a provision, guaranteeing right of appeal in all civil cases.
Article 1 Section 24, provides the right to be heard in all civil cases in the court of last resort by appeal, error or otherwise shall not be denied, and as announced by a long line of Nebraska cases, more particularly as it applies to this case and we've cited in our brief, the case of Ferber versus Leise which held that this right of appeal exists irrespective of the merits or the lack thereof in the court or in the record.
In other words, they take the position that our Supreme Court should not consider a case until it's been properly presented and not try to anticipate whether or not the appeal is frivolous or has some substance.
Now the records shows that Faye had been married to or entered into a marriage ceremony with Richard Boersen in June of 1964.
And she had filed an action for divorce, well, there were two of them, but the one involved is in February of 1969 and that action Boersen had filed a counter suit.
Then on March 5, as I stated, she married the petitioner in Las Vegas, Nevada.
And about a-month-and-a-half later, April 24, a divorce decree was entered.
In October of that year, 1969, she gave birth to a child, a child which the petitioner claims paternity and is also one of the issues involved in this case.
Now, in November 1970, Faye filed the petition for annulment in the Hall County district court.
Huffman was incarcerated in the state penitentiary on November 9.
The sheriff of Lancaster County pursuant to our local procedure served the summons.
He was allowed in to serve the summons on the petitioner and service in written was made of that fact.
In the pleadings that followed as I said all filed by Huffman pro se, by the way Mr. Huffman is the inmate's legal assistant at the Nebraska penitentiary.
A review of the record in this case would indicate some expertise and knowledge on his part that might not be possessed of an ordinary layman.
Now, among the pleadings filed, he raised the issue of denial of her right to annulment.
He raised the issue and claimed the right to be found -- the father of his child born in October 1969 and he also demanded in several pleadings the right to be present at any trial.
He also advised the court that he was without funds and had no counsel.
Now, the record is undisputed that about that time, Mr. Huffman had approximately a $114 of resources and this has been stipulated and admitted.
The case as I said was filed in November, in March of 1971 Faye's attorney ex parte asked the court to set the case for trial, which was perfectly in line with local procedure.
The case was set for trial on March 26. Huffman was given notice of that trial, again by the sheriff of Lancaster County, who served this upon him on March, 22.
On that same day, Mr. Huffman wrote a letter to the judge, which appears in the Appendix at Page 48, stating that he had just received this service which was four days prior to the trial, that he had no counsel, and again, renewed his demand to be present.
Now, in a prior document, which he filed, called a motion for appearance, he had advised the court of the same facts and further advised the court that all it took was a simple order by the court to have the warden produce Mr. Huffman at his trial on the annulment in Grand Island.
On March 26, the trial took place and a decree or order of annulment was entered.
Huffman's pleadings were all dismissed, held for naught.
On April 9, Huffman filed his notice of appeal and this is all in accordance with Nebraska procedure and he paid a $20 docket fee which is also required by our statute.
He also filed praecipes for the preparation of a transcript, preparation of a bill of exceptions, which were prepared; the transcript by the clerk, the bill of exceptions by the court reporter and these all appear in the Appendix.
Now Section 25, 1914 of our Nebraska statutes among other things requires that the cost security of $75 be filed.
Now our Nebraska statutes have, I think, as most states do requirements which must be followed in order to lodge an appeal in the Nebraska Supreme Court.
The notice of appeal and the $20 docket fee are denominated as jurisdictional.
Justice William O. Douglas: Was there any argument before the Supreme Court of Nebraska?
Mr. Leo Eisenstatt: No, Your Honor.
Justice William O. Douglas: This was all on the papers?
Mr. Leo Eisenstatt: This was all on documents.
Well, I wish to withdraw that.
Mr. Dowding did appear at the argument in the Supreme Court, but Mr. Huffman did not, he was in the penitentiary.
I haven't got into that point, but in the Supreme Court the --
Justice William O. Douglas: Was the Boddie versus Connecticut argued to the --
Mr. Leo Eisenstatt: No sir, it was raised however by Mr. Huffman in his pleadings.
Now as I said, he filed the praecipes, he filed a notice of appeal and the $20 docket fee.
Statute requires within 30 days of that date, the cost security to be filed.
On May 19, Faye's attorney filed a motion in the Supreme Court of Nebraska to dismiss the appeal for failure to file the cost security.
Justice Harry A. Blackmun: Mr. Eisenstatt, as a matter of practicality, how much protection is a $75 bond in Nebraska practice?
What is the average -- what do the average cost amount to, in excess of that?
Mr. Leo Eisenstatt: Very much in excess of that, Your Honor.
My own personal experience say, even a small brief is over $200, and most of the time there are $300 and $400 present prices.
Now the Supreme Court has a rule which provides for reimbursement at $2.60 of pay which comes to $195.
Justice William H. Rehnquist: Could the appellee tax the cause of his brief in the Supreme Court of Nebraska?
Mr. Leo Eisenstatt: He can -- the winning party in the appeal gets reimbursement for 75 pages x $2.60, which is taxed as cost.
Only the appellant however must file a cost security.
Justice William H. Rehnquist: And the purpose of the cause found in nearest to the benefit and of the other party, the appellee in this case?
Mr. Leo Eisenstatt: That's right, because the statutory cost as far as the state are concerned in an appeal are taking care of the $20 docket fee.
Chief Justice Warren E. Burger: What is the actual cost of printing a brief per page out in Omaha and Lincoln?
Mr. Leo Eisenstatt: In excess of $3, three and a quarter.
Sometimes -- and now up to four, depending on which printer, at least in Omaha.
Chief Justice Warren E. Burger: I see, so it could rule on $2.60 a page is reasonably modern.
Mr. Leo Eisenstatt: Very modern.
Chief Justice Warren E. Burger: But, what about the $75 statute that Mr. Justice Blackmun raised.
How old or new is that statute?
Mr. Leo Eisenstatt: That statute has been on our books since the turn of the century.
Justice Harry A. Blackmun: Now that we've interrupted you --
Mr. Leo Eisenstatt: No, that's quite right.
I would like to respond to the questions as they're raised.
Now to fill you in --
Justice Harry A. Blackmun: Could I ask one more then --
Mr. Leo Eisenstatt: Yes.
Justice Harry A. Blackmun: Somewhere in here, I have the impression that there is a statement that relief from printing cannot be obtained in the Supreme Court practices, is this a rule in your state?
Mr. Leo Eisenstatt: There is a provision, Your Honor, in the rules of the Nebraska Supreme Court, which provide that the Rule 9 (a) of the Supreme Court which is quoted on page 5 of our brief provides in part, all briefs shall be printed unless otherwise allowed by the court on good cause shown.
Justice Harry A. Blackmun: Well, I think perhaps in the opposition's papers, there was an intimation at least that she had to have her briefs printed and could get no relief and I wondered about the accuracy of that statement?
Mr. Leo Eisenstatt: I would agree with that statement based upon the background and experience of our court, our Nebraska court to date.
The provision for waiver or some kind of amendment that that refers to.
I have no knowledge of any case where that has been waived or there has been any change about it or even a provision for paying it on the installment plan, for example, or provided -- well, they wouldn't be for payment on the installment, it would be up to the printer and the petitioner or the appellant.
But the waiver of that or the right to provide typed briefs has not to my experience been permitted and in my own knowledge as far as the Bar Association is concerned, we've attempted on several occasions to get that rule amended without success.
That, of course, is outside the record.
When Faye's attorney filed the motion to dismiss appeal for failing to supply the cost security or Huffman was given notice by mail and he at that time filed an objection, the document entitled the objection.
He filed a motion to proceed in in forma pauperis.
He filed an affidavit and also filed a motion to stay the mandate but the court ruled against him so that he could lodge a petition for writ of certiorari in this Court.
The appeal was dismissed without opinion, just an order entered in their journal.
And on June 14, there was a hearing at which Faye's attorney was present and I might advise the Court that at the time involved Mr. Huffman had ordered a brief from the Gant Publishing Company in Lincoln, Nebraska at a cost of $88.58, which had to be paid in advance.
So after he paid the $20 docket fee and after he had paid the printer, his $88.58, he had less than $5 left to his name which is set forth in his affidavit.
The money that he --
Justice William H. Rehnquist: Mr. Eisenstatt, do the Nebraska decisions indicate that dismissal is automatic upon failure to file the $75 bond or does the Supreme Court on occasion exercise some sort of discretion?
Mr. Leo Eisenstatt: There is no case in the state where a waiver has been granted.
There are one or two decisions only, Your Honor, that have ruled on this and other requirements and all have been to the effect that these are reasonable requirements and that the appeal be dismissed.
Justice William H. Rehnquist: So, so for as Nebraska law is concerned, the failure to file a bond would be an automatic ground for dismissal?
Mr. Leo Eisenstatt: Although it isn't classified as jurisdictional, as the notice of appeal and the $20 docket fee, it has the same effect.
You are dismissed from your appeal if you do not comply with it.
And there has been at least one case where a dismissal has occurred because of this.
There are very few decisions, one or two at the most.
Now the rule involved in this case and for which petitioner seeks redress at this Court stems mainly from the rule in Boddie versus Connecticut, decided by this Court in March of last year.
The Court in Boddie, this Court in Boddie was careful to announce that it was deciding the case only on the basis of the fact that it was a marital situation, allowance of an indigent to file a divorce petition, and because the state exercised control over it, the marital relationship in its dissolution, it held that this case then merited the application of the rule that had long been in effect with respect to criminal cases.
Now on that basis alone, we have a similarity here in our Huffman case.
We have an annulment and a matter of determination of paternity.
The issue, of course, goes one step further and that is the matter of appeal and it is petitioner's opinion that the rule of Griffin versus Illinois, decided in 1956, is applicable here and also the cases which have followed Griffin.
Griffin held that an indigent in a criminal case was entitled to have a transcript furnished by the state, if he could not afford it in order to provide him with an appeal.
As the court pointed out, appeal is not required, but if the state allows appeals as a general practice and in its rules and procedures, then it cannot as a matter of equal protection of the law deny the same rights to indigents.
And there have been a host of cases following Griffin in the criminal field and the rule has been amplified, for example, in Williams versus Oklahoma City decided in 1969 by this Court, extended the Griffin rule to a quasi-criminal case which was a violation of the city ordinance, 90-day jail sentence and a small fine.
It also involved the issue of free transcript.
And then in December of this year, in Mayor versus Chicago, this Court extended the Griffin rule to a misdemeanor case which involved a fine only.
And based upon Boddie, which extended the right of access to the courts in a marital situation, we feel mandates, the application of Griffin and its progeny to this case.
Justice William H. Rehnquist: Mr. Eisenstatt, do you see any legal significance in what at least appears to be a factual distinction here that this bond is not something that goes to pay for something that the appellant has but is to reimburse the other party for an expense that they have incurred?
Mr. Leo Eisenstatt: Yes I realize, this is a distinction, but if in our opinion this is a distinction without a difference.
First of all, it is state action.
Secondly, it is a minimal protection.
Thirdly, it makes no difference as we see at whether this -- the cost requirement in the handling of a case is to pay a fee which is state action or to pay a printer which again is individual action or to pay a cost security.
Now in Lindsey against Normet which was just recently decided by this case the -- I think this Court has answered that question, and we must keep in mind in Lindsey, that there were two --
Justice Byron R. White: Which way did we decide it?
Mr. Leo Eisenstatt: You decided that the double appeal was not valid and put as a matter of equal protection of the law cannot be imposed upon attainment.
Justice Byron R. White: Or the double bar I guess?
Mr. Leo Eisenstatt: Yes.
Justice Byron R. White: But didn't we decide that the litigant could be forced to protect the landlord against loss of rent?
Mr. Leo Eisenstatt: That's right but there was --
Justice Byron R. White: Protect the landlord against loss, so he would have to pay money in the court, to protect the landlord against the loss --
Mr. Leo Eisenstatt: But there the Court was addressing itself protection of property that is the tenant was occupying the --
Justice Byron R. White: Well, it was protecting the landlord against the financial loss from the litigation?
Mr. Leo Eisenstatt: Well, but it did not address itself -- we're talking about the initial, the payment or requirement of paying rent during the pendency of the action.
Justice Byron R. White: That's right, and the court yeah, and the only reason to do was protect the landlord from economic loss?
Mr. Leo Eisenstatt: But it applied to a particular situation Your Honor, it dealt with property that the tenant was occupying, it was this case and the matter of cost are not opposite, I mean are not consistent or the same.
There you have the protection or as the rule stated protection of the property as a landlord, or to protect a judgment secured, you don't have that here.
Justice Byron R. White: So you say it's just not unconstitutional or that it's unconstitutional for the state to insist that litigants protect those who may sue against the cost the parties will incur --
Mr. Leo Eisenstatt: Well at least --
Justice Byron R. White: -- where the plaintiff at least as an indigent?
Mr. Leo Eisenstatt: That's right, if it denies him access to the courts and this has already been the Court's position in Boddie.
There was no requirement to there so far as protecting the other party and here in Boddie there was a waiver of the filing fees which the state mandated as well as what the sheriff required.
Justice Byron R. White: You think the state would also have to relieve non-indigents from the obligation to pay the other party's cost?
Mr. Leo Eisenstatt: Not necessarily, and there is another thing Your Honor, I would like to point out in that regard.
In the filing of the original petitions, State of Nebraska does not require a bond to protect the defendant, if the plaintiff loses and the appeal, only the appellant must file this.
There is no cost security given to the appellee.
Justice William H. Rehnquist: Isn't that a fairly common practice among all the states though to say that once that litigation has been come to a decision in the trial court that then the burden shifts and effects so far as securing costs?
Mr. Leo Eisenstatt: Yes, it's very common and it is a -- and we do not attack the essential validity of that, we agree that this is a valid exercise of state rights.
But when it prevents the indigent from coming into court or getting a rights of appeal without any regard to their merits then it is an invidious discrimination which the Constitution prescribes.
Justice Thurgood Marshall: Well, couldn't they allow both sides to proceed on typewritten papers under that rule?
Mr. Leo Eisenstatt: They could Your Honor and that was suggested Mr. Dowding in his answer brief.
Justice Thurgood Marshall: What evidence you are arguing with that, if they had done that you wouldn't have the argument, would you?
Mr. Leo Eisenstatt: Well then there wouldn't be a need for a cost security either because the only purpose of the cost security provides in the --
Justice Thurgood Marshall: But that's my whole point.
If they allowed for both sides to proceed on typewritten papers, the problem wouldn't arise because they wouldn't dismiss it then, would they?
Mr. Leo Eisenstatt: No Your Honor.
Justice Byron R. White: But they did.
Mr. Leo Eisenstatt: They did.
Justice Byron R. White: (Inaudible)
Mr. Leo Eisenstatt: Right, but the court does not permit the filing of typewritten briefs in the State of Nebraska.
Justice Thurgood Marshall: Well, I thought the rules said under extreme circumstances or something they would?
Mr. Leo Eisenstatt: I know that the rule says that Your Honor, but I know of no case where the court has ever done it.
Justice Thurgood Marshall: Well, my whole point is that the court had a choice it seems to me of exercising its discretion under its own rules, not to print, and if they exercised that discretion, there would be no need for the security bond?
Mr. Leo Eisenstatt: That's right, the only thing that the bond protects is the brief printing cost of the appellee.
Justice Byron R. White: Well did you ask for a waiver?
Mr. Leo Eisenstatt: My client did not, Your Honor.
He asked to proceed in forma pauperis in a general way without specifically referring to this provision.
Justice Byron R. White: Without specific, they were asking for waiver to the customer.
Mr. Leo Eisenstatt: Right, he asked generally for the right to proceed in forma pauperis.
Chief Justice Warren E. Burger: Is it possible then that this case comes down to a claim of abuse of discretion by the Supreme Court of Nebraska rather than constitutional issue?
Mr. Leo Eisenstatt: I would say no Your Honor, on the basis of the experience of the Nebraska Court did not ever varying from its rule requiring printed briefs.
Chief Justice Warren E. Burger: But the rules permit them to do it.
Mr. Leo Eisenstatt: They could.
Yes Your Honor, they could.
Chief Justice Warren E. Burger: So that there would be no problem if they had been excer -- if they had been asked to exercise their discretion to waive and had granted the request, is that correct?
Mr. Leo Eisenstatt: No, as to the cost bond there is no discretion, as to the printing of the briefs there would be.
Chief Justice Warren E. Burger: But if there is no printed brief, do they need the cost bond?
Mr. Leo Eisenstatt: Well the statute, 29 -- 25-1914 does not give them that discretion, it's an evidence.
Chief Justice Warren E. Burger: But what if a motion had been made?
Suppose you had been there, you would have made such a motion I am sure and then assume for the moment what we do not know and that is that the Supreme Court of Nebraska would grant the waiver of printing and you were allowed to file type written briefs, would you then need cost bond?
Mr. Leo Eisenstatt: No, Your Honor, you would not need a cost bond, but the statute does not give that discretion.
Justice William H. Rehnquist: Emotion is a kind of an odd one, that we're talking about basically whether it be the appellant more than that the appeal be permitted proceed on a type written brief?
Mr. Leo Eisenstatt: Right.
Chief Justice Warren E. Burger: Well, his emotion might will be that both parties I had assumed in my hypothetical that your emotion would be that both parties be permitted to do so first for your client's problem and second you relieve him of the need to file the bond?
Mr. Leo Eisenstatt: Your Honor, the only way that I see that the Nebraska Supreme Court could have done that would be have been to have deny the application of a statute, there is no discretion in that statute.
They would have had to do it on the base of constitutional issues --
Justice William J. Brennan: Are you saying Mr. Eisenstatt that even where they do waive the requirement for printing the briefs, even where they do that for both parties, the bond would still have had to be filed even though they have been never -- since they have been filed, and not printed, there would be no occasion ever to pay any bonds?
Mr. Leo Eisenstatt: That's right.
Justice William J. Brennan: What is this bond?
Is it a cash bond or what bond is it?
Mr. Leo Eisenstatt: It can be a secure surety bond or cash security in lieu thereof.
Justice Byron R. White: Well, is there a bond that when you file it, does it automatically collected on, and say the appellant files it and loses?
Mr. Leo Eisenstatt: Yes sir.
Justice Byron R. White: What happens to it then?
Mr. Leo Eisenstatt: If the appellant, the loosing party does not pay the brief cost is $2.65 --
Justice Byron R. White: So it's not a -- $75 dollars automatically, does it go to the appellee?
Mr. Leo Eisenstatt: No Your Honor, it's only if he doesn't pay the taxation of costs that are included in the mandate.
Chief Justice Warren E. Burger: And he could not actually cost unless there was a printing as distinguished from a type writing?
Mr. Leo Eisenstatt: Right Your Honor.
Chief Justice Warren E. Burger: Well, is it not possible to construe that, not for us, but for the Nebraska Supreme Court to construe its own statute as meaning that the waiver of printing would permit a waiver of the filing of the $75 by bond or cash?
Mr. Leo Eisenstatt: I see no discretion allow the court, it's an absolute requirement in the statute.
Chief Justice Warren E. Burger: And the statute would require them to do a useless thing and you think the Supreme Court of Nebraska would probably construe it that way as nearly as you can judge now?
Mr. Leo Eisenstatt: I would assume sir that it would.
Justice William J. Brennan: Incidentally it costs to get the briefs typed as well as printed?
Mr. Leo Eisenstatt: Yes Your Honor.
Justice William J. Brennan: And suppose the appellee -- the appellant loses, does the cost bond go to reimburse the appellee for the cost of typing when he submits a typed brief?
Mr. Leo Eisenstatt: All that the statute says is that it is conditioned that the appellant shall pay all costs adjudged against him in the Supreme Court without specification.
Justice William J. Brennan: Well might --
Justice Thurgood Marshall: Has Nebraska ever decide in a real close case that side bears its own costs?
Mr. Leo Eisenstatt: Yes sir, it had well --
Justice Thurgood Marshall: What happens to the $75 then?
Mr. Leo Eisenstatt: Then it would not.
Justice Thurgood Marshall: The state keeps it, I get it.
Mr. Leo Eisenstatt: Well no, it's released.
Justice William J. Brennan: To get a surety bond, what's the premium?
Mr. Leo Eisenstatt: It would be a minimum of $20.
Justice William J. Brennan: For $75 bond?
Mr. Leo Eisenstatt: Minimum, in some cases there are some companies that do permit a $10 fee, but it's a minimum up to $1,000.
Justice Harry A. Blackmun: Are there any statutory costs as such to in your Nebraska practice?
Mr. Leo Eisenstatt: None other than the $20 docket fee which must be paid in advance.
Chief Justice Warren E. Burger: And he did pay that?
Mr. Leo Eisenstatt: Yes, Your Honor.
Chief Justice Warren E. Burger: Out of the 114 that you said he had in his pocket?
Mr. Leo Eisenstatt: Yes.
He paid $20 to the state for his docket fee and $88.58 to the Gnat Publishing Company of Lincoln.
Justice Harry A. Blackmun: Does the appellee pay docket fee also?
Mr. Leo Eisenstatt: No he pays a $5 appearance fee, thank you, Your Honors.
Chief Justice Warren E. Burger: Thank you Mr. Eisenstatt.
Argument of Vincent L. Dowding
Mr. Vincent L. Dowding: Mr. Chief Justice and may it please the Court.
I would like to address myself to two points that were raised in the questioning.
First of all, the statute involved as I read it does permit discretion.
Page 5 of respondent's brief quotes this statute and it says that the appeal maybe dismissed on motion and notice in the Supreme Court that no bond has been given and certified in the transcript or within such additional time as maybe fixed by the Supreme Court for good cause shown.
So that even the failure to file this bond or undertaking and it can be cash, would not necessarily be an automatic dismissal.
So there is discretion here, but I am assuming as is Mr. Eisenstatt that they did dismiss this simply because the money was not posted.
Justice William H. Rehnquist: Do you disagree with Mr. Eisenstatt's statement that the Nebraska case law indicates that dismissal will follow virtually automatically?
Mr. Vincent L. Dowding: I respect his decision on that, but you can't tell from the record why they dismissed it here, but I think we all are assuming it was because he didn't come up with the $75.
I would like to address myself to a question Mr. Justice Douglas raised with reference to whether or not the Boddie case was raised in the Nebraska Supreme Court.
My colleague Mr. Belcher argued that motion for dismissal in the Nebraska Supreme Court, and I was informed and it was our point that the Boddie case is distinguishable herein because the purpose of this bond statute and urged to the benefit of a private litigant and not to the state.
Now there was no written opinion issued by the Nebraska Supreme Court when they dismissed.
I don't know but that basically was the only argument that was made because Mr. Huffman did raise that case very well in his objections to our motion to dismiss.
Justice William O. Douglas: As long as it's a state action, I don't suppose that would make any difference as to what the purpose of it may have been?
Mr. Vincent L. Dowding: No, I really don't whether they went off on that ground or not.
I think as Mr. Eisenstatt said it's --
Justice William O. Douglas: Are there any other decisions of the Nebraska Supreme Court on this
Mr. Vincent L. Dowding: No.
No, there isn't Your Honor.
It is our basic contention that the statute which barred held Huffman from an appellate hearing is constitutional for the basic reason that it gives the respondent herein Faye Boersen financial protection on appeal and is therefore not in violation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
Justice Byron R. White: Could I ask you a question?
There is no appeal, there is no enactment test in Nebraska which -- and if that statute had been in effect, you wouldn't be here?
Mr. Vincent L. Dowding: No it would cover its past and --
Justice Byron R. White: And would you think -- is that act-- would that act be applicable or of any relief if this case were remanded for reconsideration in the light of that statute?
Mr. Vincent L. Dowding: Well if it were remanded for reconsideration, I would file a motion to proceed pursuant to that statute and then the question would be whether or not they would apply a retroactive;y?
Justice Byron R. White: What does it say?
Well it is retroactively, here a case that isn't final yet?
Mr. Vincent L. Dowding: But the problem is Your Honor is that new statute says that before you can proceed in forma pauperis on appeal, the Trial Court must say that the appeal is taken a good faith, so they may not apply it to this specific case.
But they do have --
Justice Byron R. White: Well, that would be -- that would may raise another question, but not this one?
Mr. Vincent L. Dowding: Yes, they could it and we'd certainly ask them --
Justice Byron R. White: I mean the statute -- if there is a statute, on its face.
Mr. Vincent L. Dowding: Covers it.
Justice Byron R. White: What?
Mr. Vincent L. Dowding: It covers it Your Honor.
It says that --
Justice William J. Brennan: Is that new statute?
Mr. Vincent L. Dowding: Yes and it's in affect now, passed --
Justice William J. Brennan: Is it in your brief?
Mr. Vincent L. Dowding: Yeah it's attached as an appendix to my brief.
Justice Harry A. Blackmun: As a matter of fact the statute was past pursuant or as a result of the grant of cert in this case, was it not?
Mr. Vincent L. Dowding: I don't know Your Honor whether it was or not.
I wouldn't be surprised.
But it is now in effect and we would make every attempt to proceed pursuant to that statute in order to save the expenses, because my client is also a a pauper.
Justice William H. Rehnquist: I suppose the Supreme Court of Nebraska, if this case were remanded might in term remand to the trial court for appropriate findings to whether the appeal were taken in good faith?
Mr. Vincent L. Dowding: Yes they certainly could.
With reference to the Due Process Clause and its application here we attempt to distinguish the Boddie case and say that it does not stretch to reach this case at bar.
We say this for two basic reasons and here I am just attempting to address myself to the Due Process Clause only.
In the Boddie case, the Court was very careful, too limit it to its facts and it was careful to state that it was not a holding that in some cases access to courts cannot be denied.
Chief Justice Warren E. Burger: Would you distinguish annulment from the divorce in terms of the basic approach of the Boddie case?
Mr. Vincent L. Dowding: No, I do not.
Chief Justice Warren E. Burger: State has exclusive control of each?
Mr. Vincent L. Dowding: I do not distinguish it to --
Chief Justice Warren E. Burger: You distinguish the initiation of the suit in Boddie from the right to an appeal?
Mr. Vincent L. Dowding: Yes, that's right Your Honor.
It's our theory that the right to appeal is not a fundamental right as defined in the Boddie case, under the Due Process Clause because as I understand the law, the Due Process Clause does not require a state to afford an appeal and therefore we argued from that that the right to appeal is not a fundamental right as defined by Boddie.
Justice Thurgood Marshall: But it is a right under the law of Nebraska, it's an absolute right, it's not a discretion as a right?
Mr. Vincent L. Dowding: No it isn't, but under the Nebraska law, the right to put some requirements on it is also specified and we would further state that the due process is --
Justice Thurgood Marshall: Is that specified in the constitution?
Mr. Vincent L. Dowding: No that's case law.
Justice Thurgood Marshall: The Constitution says that you have an absolute right to appeal in a civil case?
Mr. Vincent L. Dowding: That's right Your Honor, it does.
The only way we can distinguish that is saying that we're talking about the federal fundamental right under the Due Process Clause, that's the only way I can distinguish that I feel.
Justice Thurgood Marshall: And how do you distinguish?
Mr. Vincent L. Dowding: What?
Justice Thurgood Marshall: Just by saying Federal Due Process law doesn't help me, how do you say that that's not a part of the procedure?
Mr. Vincent L. Dowding: I am sorry Your Honor, I didn't hear you.
Justice Thurgood Marshall: Isn't that just integral part of proceeding as original trial where it's a matter of right?
Mr. Vincent L. Dowding: I will concede that, except that under the case law at the time this particular statutory requirement had been held to be valid.
Justice Potter Stewart: Valid under your Nebraska Constitution?
Mr. Vincent L. Dowding: Yes, that's right.
Justice Potter Stewart: The Supreme Court's decisions had said that that's this legislature could put conditions on it.
Mr. Vincent L. Dowding: That's right.
Justice Potter Stewart: Including this one.
But certainly my brother Marshall is right in the implication of his question, is he not, that a domestic relations actions such as this, under Nebraska law as it is is not final one way or the other until the appeal process has been decided.
Mr. Vincent L. Dowding: That would make -- perhaps that would then make the right to appeal in Nebraska a fundamental right under Boddie, perhaps my distinction would not be valid.
Justice Thurgood Marshall: Well, what you say is Nebraska says you have an absolute right to appeal in any civil case, if you have $75?
Mr. Vincent L. Dowding: That's what it amounts to Your Honor in Nebraska, that's right.
And the reason --
Justice Thurgood Marshall: That squares with the Federal Constitution?
Mr. Vincent L. Dowding: We feel that it does.
We feel that the Boddie case is distinguishable basically because this particular cost bond requirement is for the benefit of a private civil litigant and does not go into the state coffers.
Now in the Boddie case, there were two policies set up by the state of Connecticut, two reasons; one to recoup the cost and two to deter frivolous litigation.
Justice Thurgood Marshall: And ought to be correct to recoup part of the cost?
Mr. Vincent L. Dowding: Yes, it's right Your Honor.
Justice Byron R. White: Well isn't that equal protection for other parties to make sure that the action isn't frivolous?
Mr. Vincent L. Dowding: I agree that the policy behind this statute, one of which is --
Justice Byron R. White: Or it isn't any longer, the policy of the state anyway?
Mr. Vincent L. Dowding: I feel that it is still one of the policy for this particular statute to deter frivolous appeals.
I don't rest on that distinction.
I rest on the distinction that the state, this is a reasonable purpose a constitutional permissible purpose for state legislatures to protect civil litigants on appeal, such as in Lindsey against Normet.
Justice Byron R. White: But the -- that isn't the policy of the state of Nebraska anymore, is it?
Mr. Vincent L. Dowding: No, not now, nit in forma pauperis.
So that distinguishing Boddie on the policy grounds we feel that it's different that the state has power to protect the private civil litigants on appeal.
We feel that that distinction alone lightens the impact of Boddie as (Inaudible) under the Due Process Clause.
Now with reference to the Equal Protection Clause, and that's Griffin versus Illinois and the cases that have followed it, to my knowledge the Griffin case has not been applied to a civil litigation on the appeal level.
We attempt to go to some standard tests under the Equal Protection Clause to determine whether or not this particular legislation is valid.
Is the purpose of the statute constitutionally permissible and two, is the statute rationally set up to reach that means.
Now, in Lindsey against Normet, the Court said that at least on its face the standard bond requirement in there was constitutional.
So we feel that it is constitutionally permissible for a state to setup this type of financial protection in civil litigation.
Justice Thurgood Marshall: Do you know of any bonding company in Nebraska that give a bond to a prisoner in the state penitentiary?
Mr. Vincent L. Dowding: No, I agree that Mr. Huffman was indigent and when was unable to make this bond because of his poverty.
Justice Thurgood Marshall: Suppose the case came in the equity court or some court of Nebraska and it seized all of the money that man had, every dollar he had in the bank, his house, his clothes, his car and everything and he wanted to appeal?
Mr. Vincent L. Dowding: I think you might have a different case.
Justice Thurgood Marshall: Why?
Mr. Vincent L. Dowding: I think you have got to judge each case when you have -- when you are at the appeal level unlike Boddie, when you are at the appeal --
Justice Thurgood Marshall: Well, my case is that if we agree that in violation of the Fourteenth Amendment of the Constitution, the court gave all of this to the plaintiff in the case and left the defendant broke.
The defendant has no regrets at all if he broke?
Mr. Vincent L. Dowding: That's right, that's exactly right.
Justice Thurgood Marshall: And that also squares up for --
Mr. Vincent L. Dowding: Well, this is where I am asking the Court to draw the line.
I am not going to object to appellate fees that are set up and going to the state treasury and I think it's a fairly fine line, and I'll admit that but I feel that when you judge this legislation against the Equal Protection Clause that the state does have the right to protect private litigants.
And I think the state can come in and say probably that the appellee also has to post a bond on appeal.
I mean --
Justice Thurgood Marshall: It posted a cost bond, they just say a $75 bond?
Mr. Vincent L. Dowding: Yeah, no it's a cost bond.
Justice Thurgood Marshall: Well, if the case involved 14 constitutional points and $16 million and the brief cost $4,000 and 75 bucks.
It is a very simple point and it required 6 pages of brief in, $75.
Mr. Vincent L. Dowding: That's right, in some cases perhaps this statute is not adequate, perhaps we need more protection, but again get back to the point and that is the line that the respondent is asking the Court to establish at this point.
When a state establishes, reasonable, financial requirements to protect private litigants in civil cases, then it is constitutional.
That's the line we ask you to draw, and I am willing to concede the $20 docket fee because I don't think the state's policy -- I think in Boddie the court pointed out, that the state's policy in recouping part of the cost does not outlay this right to access.
Justice Potter Stewart: Well, ironically he paid the $20?
Mr. Vincent L. Dowding: Yes he did, and he also paid for the printed brief.
Now, I don't know if he were to come in and move to, ask for a type written brief, whether it would or not have been granted, but if he could have got a type written brief then he would have had enough money to make the bond and that's the problem, but he just came down to this last point and couldn't come up with the money.
Chief Justice Warren E. Burger: Do you agree that Nebraska's Supreme Court could not waive the filing of the $75, if they waive the printing of the brief?
Mr. Vincent L. Dowding: I think they could waive them both.
Chief Justice Warren E. Burger: You disagree with your friend?
Mr. Vincent L. Dowding: Yeah, well under on the face of the statute they are both discretionary.
Justice Byron R. White: It's like as if they just never had?
Mr. Vincent L. Dowding: They never have --
Justice Byron R. White: And they didn't in this case?
Mr. Vincent L. Dowding: I differ to Mr. Eisenstatt.
He says it, I believe it on this point, he has had more experience than I have.
Justice Byron R. White: Well, what would you -- would you say the same thing if a plaintiff in the trial court he not only really has to pay his docket fee but he has to file a cost bond to protect the defendant?
Mr. Vincent L. Dowding: As Cohen versus Beneficial Industrial Loan Company Your Honor and the question is would that case be decided different today if that plaintiff were broken that case.
Justice Potter Stewart: Well, or would it be decided differently if it were a domestic relation?
Mr. Vincent L. Dowding: Well, this is right if the Court of course follows this line of marital relations being the crucial line here of course then they wouldn't --
Justice Potter Stewart: Would it be decided differently if it were litigation that could not be settled but that the only state could determine that status of a marriage or paternity of a child.
Mr. Vincent L. Dowding: That's basically where we are at on this Huffman versus Boersen.
Justice Byron R. White: Then you would say the same thing if the state required him to post a bond to get into the trial court to pay the defendant's attorneys fees.
Mr. Vincent L. Dowding: I would, I think that the state, again if they are protecting a private civil litigants and it's got some reasonable basis in fact to the purpose they are trying to accomplish.
Justice Byron R. White: And you would say the same even if admittedly the case was not frivolous?
Mr. Vincent L. Dowding: Yes I would.
Here's what would happen in the Lindsey versus Normet.
Let's suppose that all he had was the standard bond requirement there and the tenant was absolutely broke and had a meritorious appeal, then you would have basically the same question you got here except that it's outside the scope of domestic relations.
And it would be my contention in that case that, that standard bond requirement would be valid even though it denies access because it's set up as a valid state purpose to protect the private litigant.
Chief Justice Warren E. Burger: Mr. Dowding, do you think it would be an appropriate solution of this case if the Court were to decide to remand it to the Nebraska courts and let them reconsider the whole problem in light of the new statute?
Mr. Vincent L. Dowding: I do, I certainly could not object because the purpose behind this appeal statute was to give my client financial protection.
If I were given permission to file a type written brief without coming up with the cost, I could not complain.
Mr. Huffman would then have a hearing and my client would have the same protections she had under the statute and that's the alternative relief that I ask.
I do feel however that if the Court reverses and holds this statute unconstitutional that you have thereby probably unless you stick to domestic relation situations granted an indigent a free pass on basically all litigation, because it's a lot tougher I feel -- it's easier to say that the state can afford to absorb the loss and that's not a valid purpose to reimburse the state treasury.
But I think it's a lot harder to say when you have got two individuals and they are protecting one litigation that that's unconstitutional.
I feel that once you say that, that's it's unconstitutional in this case that really I think about all financial requirements are out as far as an indigent is concern unless you stick again to the domestic relations area.
Justice William H. Rehnquist: Suppose your case here is somewhat stronger because you've had a hearing in the trial court and it is on appeal, then it would be if you simply had a cost bond requirement in the state -- I mean in the trial court before there would be any determination?
Mr. Vincent L. Dowding: I feel that's right, against State policy once, the litigant is a winner perhaps they are entitled not to behold into appeals court without some protection.
And that's the basis behind it which I feel is a valid state purpose.
Justice Harry A. Blackmun: Mr. Dowding let me go to the other issue to wet my curiosity?
Doesn't Nebraska ever let a prisoner out to defend in a trial court of the state in action of this kind of brought against him?
Mr. Vincent L. Dowding: Yes and Mr. Eisenstatt furnished that for the record.
There is a letter from the warden in there saying that all they require is an order from the court, directing that he'd be present and they will deliver him.
Justice Harry A. Blackmun: Do you know why such an order wasn't issued in this case?
Mr. Vincent L. Dowding: No, Your Honor.
The Court just overruled that there was no argument on it or anything and I felt that at that point that all (Inaudible) was after wasn't annulment and I felt that the law was clear.
She was married to Mr. Boersen, once she married Mr. Huffman and the record in this case maybe two pages.
Chief Justice Warren E. Burger: Was there any dispute on the facts at all?
Mr. Vincent L. Dowding: Not on the marriage issue and annulment issue.
There is a dispute on whether or not Mr. Huffman is foreclosed from determining that he is the father of Faye's child. He set that up.
Justice Byron R. White: Exactly was that a proper issue in this case?
Mr. Vincent L. Dowding: Well, I would say it probably was under Nebraska pleading because Huffman set it up in a cross petition.
I personally do not feel it was validly determined and I am willing to stipulate at any later litigation that Mr. Huffman can come in and determine this.
I didn't intend to have that issue determined, let's put it that way.
He filed a lot of pleadings and they weren't under any description or name allowed by Nebraska law and he did raise the paternity issue in there and it was rejected.
Chief Justice Warren E. Burger: Isn't that a rather unusual procedural device to determine paternity suit, paternity issue in annulment suit?
Mr. Vincent L. Dowding: Yes, it is Your Honor, but our Nebraska court has held that either party can raise that issue in an annulment, if it has alleged that there are issue at the marriage and as far as I am concerned that issue is not been foreclosed.
Chief Justice Warren E. Burger: That's established Nebraska law then.
Mr. Vincent L. Dowding: I believe it is Your Honor and Mr. Eisenstatt cites a case in his reply brief which indicates as such.
In closing then, we contend that the statute which brought Harold Huffman from access to the Appeals Court is constitutional.
If the Court finds that it is not, we ask for alternative relief to to afford us the same financial protection.
Justice William O. Douglas: What is that new bill, is it the legislative bill of 1920?
Mr. Vincent L. Dowding: Yes, it's attached to our brief as in appendix.
Justice William O. Douglas: But as I read it, it's not retroactive?
Mr. Vincent L. Dowding: Well, this is right Your Honor.
We probably have to go back in and ask him to apply it and if both parties agreed, they might.
Justice Byron R. White: Well, it doesn't need to be retroactive, this is still a live case?
Mr. Vincent L. Dowding: Well, we might have to go back and ask the Trial Court to certify that the appeal was taken in good faith before the appeal rules apply because that's what the statute says.
Justice Potter Stewart: Well you have to do that whether or not it's retroactive, you have to do that in every case, just under the terms of this statute?
Mr. Vincent L. Dowding: I think that the Nebraska Supreme Court would apply this.
Mr. Eisenstatt went in and said that we both want relief under the statute.
Justice Byron R. White: (Inaudible) then you'd be back?
Mr. Vincent L. Dowding: Yes.
Justice William O. Douglas: What you say is in your brief as I understand it, your argument that it was not taken in good faith?
Mr. Vincent L. Dowding: Well, I don't -- I feel the appeal is frivolous on the annulment issue.
Now, if paternity was decided invalidly against I think that the appeal has merit.
Justice Potter Stewart: You told us today that you concede that the determination of the paternity question was insufficient, invalid.
I think those words you used.
Mr. Vincent L. Dowding: Yes, I am willing just to agree that Mr. Huffman did not have his fay in the court on the paternity issue.
Justice Byron R. White: We could say so in the remainder.
Mr. Vincent L. Dowding: Yes, so stipulate.
Justice William O. Douglas: But, the question of -- basic question is the validity of the marriage, does that reach your brief?
Mr. Vincent L. Dowding: Yes, it has been decided.
Justice William O. Douglas: That is your standards of frivolous question?
Mr. Vincent L. Dowding: Yes because the Nebraska law was clear on that point that if the party is married when they enter into another marriage contract, then the marriage is void.
But, there is a Nevada statute which I didn't offer in the evidence and so it is outside the record, but it says that if parties are married when they enter into a marriage in Nevada, it's no null and void even without an annulment action.
I feel that Faye Boersen is entitled to an annulment, no question about that.
Justice Potter Stewart: It introduced, I saw in the record a certified copy of her divorce decree from the first husband which came after the marriage to this man, to Mr. Huffman?
Mr. Vincent L. Dowding: Yes.
Justice William O. Douglas: Do you think that the issue of annulment stands on a separate ground?
Mr. Vincent L. Dowding: I feel it does.
I am willing to say that the paternity issue was not decided against Harold Huffman.
The only annulment issue, I feel that's the only issue validly decided and his appeal in my opinion is frivolous.
Justice Potter Stewart: Of course it's all one law suit isn't it?
Mr. Vincent L. Dowding: Yes it is.
Justice Potter Stewart: So wouldn't it be considered so by Nebraska?
There is a complaint and there is a (Voice Overlap)
Mr. Vincent L. Dowding: Well that gets into the pleading laws.
I am willing to say the man didn't have a fair hearing on that paternity and ought to be able to litigate it.
Justice Potter Stewart: And that's part of all one lawsuit because it began as an action for annulment?
Mr. Vincent L. Dowding: Yes it is.
Justice William O. Douglas: Then you shouldn't say as you are doing your brief that the appeal was frivolous?
Mr. Vincent L. Dowding: Alright Your Honor, I will even concede that if in fact the paternity issue was decided --
Justice William O. Douglas: Yeah.
Mr. Vincent L. Dowding: -- but I am again willing to open up the Courts on remand or anything for Huffman to decide this issue.
Chief Justice Warren E. Burger: Thank you Mr. Dowding.
Mr. Eisenstatt, your time was consumed but if there is any important factor you wish to make, we will give you a minute or two.
Rebuttal of Leo Eisenstatt
Mr. Leo Eisenstatt: Just two minutes, if you may Your Honor.
First, you can't, in Nebraska, stipulate the jurisdiction as far as the paternity issue.
He said that he will be willing to stipulate, I just wanted the Court to know that a stipulation of counsel will not vest any court with jurisdiction to hear the matter.
Justice Potter Stewart: But it may have something to do with whether or not this appeal is a substantial appeal or frivolous one?
Mr. Leo Eisenstatt: Right, and as to one point with respect to the Lindsey versus Normet case, I would like to call the Court's attention to the distinguishing characteristic of that bond or payment provision for rent pending appeal and the Court said, there are unique facts and legal characteristics of landlord-tenant relationship that justifies special statutory treatment inapplicable to other litigants and then goes on to refer to the fact that the landlord is incurring expenses and the tenant will be getting free occupation.
So I reiterate my statement in my original presentation that the original or bond covering the payment of the actual rent is distinguishable from this case.
Chief Justice Warren E. Burger: You agree with Mr. Dowding that a remand to the Nebraska Courts would be an appropriate solution to this problem?
Mr. Leo Eisenstatt: I would hope it would.
I would want this Court to, I think give it a bit of a nudge Your Honor.
If they could have a chance to interpret this contrary to applying of section LB 1120, they might do it.
Chief Justice Warren E. Burger: Now that you -- when you say give them a nudge you mean by that to make it clear that we expect Nebraska to solve this problem?
Mr. Leo Eisenstatt: Yes, Your Honor.
Chief Justice Warren E. Burger: Thank you.
Mr. Eisenstatt you appeared here by our request and by appointment of the Court and after the Court I want to thank you for your assistance not only to your client, but to our Court.
Mr. Leo Eisenstatt: Thank you.
Chief Justice Warren E. Burger: And thank you Mr. Dowding.
The case is submitted.