PREISER v. RODRIGUEZ

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Argument of Lillian Z. Cohen

Chief Justice Warren E. Burger: We’ll hear arguments next in 71-1369, Preiser against Rodriguez.

Mrs. Cohen, you may proceed whenever you’re ready.

Ms Lillian Z. Cohen: Mr. Chief Justice and may it please the Court.

The question presented by these cases, is whether state prisoners complaining about the matter of their confinement should be able to obtain equitable relief under the Civil Rights Act given the applicability of the federal habeas corpus statute.

When these actions were commenced, each of the respondents was confined in a state prison.

Each was in custody pursuant to a valid state court judgment of conviction.

Each have been deprived of good-conduct-time-credits by the Department of Correction as a result of a disciplinary action of each and each immediately proceeded to the Federal District Court with a combined petition for a writ of habeas corpus and civil rights complaint.

In each case, the District Court held a hearing and granted relief on the merits rejecting the State’s argument that the actions were in the nature of habeas corpus applications.

Each of the respondents was released from physical confinement as a result of the District Court’s decision.

Individual panels of the Second Circuit heard appeals by the State taken in all three cases.

The panels which reviewed Rodriguez and Katzoff reversed the District Court on the ground that the applications were in the nature of habeas corpus petitions and there had been a failure to exhaust state court remedies.

Before Kritsky was decided, a motion to en banc Rodriguez and Katzoff was granted and Kritsky was ordered included in the en banc consideration.

Counsel were directed to brief and be prepare to argue two specific questions unrelated to the merits of these cases.

The first was the applicability of the doctrine of abstention and the second was the need to exhaust state court remedies.

After this Court’s decision in Wilwording against Swenson, the Circuit Court reversed the panel decisions in Rodriguez and Katzoff and affirmed the District Court in all three cases.

It is evident from the eight opinions that were written by the court below that until this Court decided Wilwording.

The second Circuit was evenly divided in considering this case by vote of 66 on the question of whether the claims raised should first have been presented to the state courts.

And what’s even more interesting is aside form the diverse opinion -- the division of opinion between the members of the Court is the fact that even among those who were very firm in their belief that the state should first have considered these claims.

There was no agreement as to whether exhaustion of remedies was required under the habeas corpus statute or whether exhaustion of remedy should be required under the Civil Rights Act.

Judges Friendly, Mansfield and Mulligan believe that these are all habeas corpus petitions and that the exhaustion requirement of Section 2254 is applicable.

Judges Lumbard, Moore, and Hayes believe that these might be considered as civil right actions but that in any event, despite the earlier decisions of this Court exhaustion of state judicial remedies was an order.

After Wilwording, a majority of the court below felt that they were bound to accept the inmate’s choice of remedy.

And based upon these earlier decisions of this Court, held that exhaustion of state judicial remedies was not required in these cases.

Petitioner seek reversal of the decision below on the ground that choice of remedy should not lay with the inmate as it presently does because any claim that he may raise regarding the legality of his custody is essentially in the nature of habeas corpus.

Custody is at the heart of the habeas corpus statute.

Section 2241 says, “The writ of habeas corpus shall not extend to a prisoner unless he is in custody in violation of the constitution.”

Section 2254 says, “That a Federal Court shall not entertain an application for writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court conviction only on the ground that he is in custody in violation of the constitution.

The decisions of this Court which we cite in our brief make it clear that custody as it is used in the statute refers not simply to the reason -- the inmate is being confined, but to all the incidents of confinement as well Wilwording against Swenson reaffirmed this in the context of the Eighth Amendment claims that were there raised.

Actually, the respondents in this case do not deny the validity of this classification.

So much as they fear the application of the exhaustion requirement of Section 2254 and the arguments which they raised in reply to the question which the state has presented to the court and which is really not so much the invention of the state in this case as it is the concern of the Circuit Court which en banc these cases relate to the exhaustion requirement and whether or not there is any detriment to the inmate.

The reason which they emphasize the most and which I believe to be the least tenable was that there will be a delay to the state prisoner in reaching a federal form.

The reason I feel that this is the least tenable is that delay in reaching a federal court for a state prisoner or for any citizen has relevance only in so far as there is no adequate state court remedy.

Justice William H. Rehnquist: Mrs. Cohen, is this a question that should be decided by this Court just on the basis of competing policy considerations or it is basically statutory inquiry as to what congress has provide?

Ms Lillian Z. Cohen: Well, I commenced my argument with the reading from the statute of sections that I am sure this bench is very familiar with.

I think that initially, the proper classification of this case is determined by statute.

In this case, you have a habeas corpus statute.

The essence of that statute is custody and its custody in the context of a state court judgment of conviction and the sentence which follows.

Therefore, I think that the jumping of point for any consideration of where state prisoner claim should be presented is the habeas corpus statute.

Of course --

Justice William H. Rehnquist: Even with a state prisoner isn’t attacking the judgment under which he is concluded?

Ms Lillian Z. Cohen: Yes, I think that based upon the decisions of this Court, we have passed the point where conceptually the habeas corpus statute or legally the habeas corpus statute is devoted simply to a state court judgment of conviction in sentence.

I think this Court made that clear as I said in Wilwording against Swenson in the context of Eighth Amendment claims it did so on the context of Johnson against Avery which raised the question about the constitutionality of the -- a state prison regulation.

And as I say, I don’t believe that respondents really denied the appropriateness of this classification that if you -- they don’t claim that these cases are not properly habeas corpus.

I suppose if you ask them which category they would prefer to the end, they would say that if they have to really choose one of the other -- their choice would lie with the Civil Rights Act, but that simply because the decisions of this Court today are that the exhaustion of state judicial remedies would not be required.

Unknown Speaker: Also, but also damages?

Ms Lillian Z. Cohen: Well, in the beginning, I would point out that the cases before this Court do not raise damage claims.

Unknown Speaker: Well, I understand that, but if you had the choice to make and you want to -- you would like to retain your -- what other possibility there is to get damages?

Ms Lillian Z. Cohen: Well, the position that taken by the State is not precluded damage action by the inmate.

Unknown Speaker: Under what?

Ms Lillian Z. Cohen: The Civil Rights Act, habeas corpus is not a remedy for damage action and we are not arguing that.

I don’t --

Unknown Speaker: Now, but you would you say that there had to be exhaustion of state remedies first or not on the damage question?

Ms Lillian Z. Cohen: Not on the pure damage question and we did not argue that in our initial brief when we set forth the way in which we believe the damages could be handled.

Unknown Speaker: So, this is really -- so this isn’t -- the state’s position is that this is really in some respect to both its proper under both procedures?

Ms Lillian Z. Cohen: Yes, but in one situation, what we are saying is that it’s the claim that in the nature of equitable claims which should be properly treated under the habeas corpus statute because of the custody considerations and because of other policy considerations as well.

The pure damage action will commend in Civil Rights Act.

Unknown Speaker: As I understand -- do I misunderstand you when I understand this that your claim is that first of all it’s limited to cases involving prisoners in state custody.

And secondly, that when the complaint is either of the custody of itself or of the conditions of the custody and when the -- and in so far as the relief is either release or correction of the conditions of those custodies, then habeas corpus is and must should be an exclusive remedy?

Ms Lillian Z. Cohen: That’s a perfect summary of the position which we adopt and which is consistent with the decisions of this Court.

This Court has made it clear that habeas corpus law is exactly for this kind of claim.

Now, --

Unknown Speaker: And that questions of damages are -- can properly be left to the civil action [Voice Overlap].

Ms Lillian Z. Cohen: That they can and not only that but the damages --

Unknown Speaker: And if they’re not appropriate in habeas corpus?

Ms Lillian Z. Cohen: That’s right.

Unknown Speaker: Not kind of a relief that the habeas corpus petition can deal.

Ms Lillian Z. Cohen: That’s why I believe that what we are asking the Court to hold in these cases is not always revolutionary as counsel for respondents would suggest.

But also important given the nature of prison rights litigation is the fact that damages really play a very small part in prison rights litigation.

Unknown Speaker: Well, let me see then Mrs. Cohen, I gather am I right in my history the extension of habeas corpus to state prisoners came in about 1867, did it not?

Ms Lillian Z. Cohen: Yes.

Unknown Speaker: And the predecessor of the 1983 which was what, old Section 1 of the old Ku Klux Klan likely?

Ms Lillian Z. Cohen: Yes, that was about 1871, I think yes.

Unknown Speaker: Was that about 1870-1871.

Is there anything in the legislative history of either to indicate that Congress -- that’s we’re dealing with two federal statutes, that Congress meant that the prisoner should have to take one and couldn’t go the other --

Ms Lillian Z. Cohen: There is absolutely nothing in history of either statute to indicate that either statute was intended to reach these claims at all.

Unknown Speaker: Well, and then what basis do you suggest that we should say in the state prisoner that Congress said, that you have to go to a federal habeas in a situation, now, that you can’t and quote the remedy of 1983?

Ms Lillian Z. Cohen: I don’t think -- I am not asking this Court to say that Congress said that the state prisoner should go to the habeas corpus statute.

What I believe is that Congress did not create the situation, which exists right now.

There is nothing in the history to show that either of these statutes should reach these prison rights claims.

The fact is that it’s only within the last ten years that these claims are considered --

Unknown Speaker: Well then in what places are you suggesting that we should say to the state prisoner?

Ms Lillian Z. Cohen: Because --

Unknown Speaker: We have Congress’ variety with two remedies but you must take the federal habeas, you may not invoke the 1983?

Ms Lillian Z. Cohen: To begin with, it’s on the basis of decisions by this Court that both of these remedies have been held applicable to these claims.

So, for that reason, I suggest that it lies with this Court to remedy the situation that is created.

I would also point out that there is nothing in either of these statutes to preclude the consideration of challenges to conviction in sentence under the Civil Rights Act and yet I don’t think anyone would suggest that seriously nor with this Court consider seriously that the Civil Rights Act was available to challenge your custody in so far as your conviction may have [Voice Overlap] obtain.

Chief Justice Warren E. Burger: You want to limit 1983 to damage claims [Voice Overlap].

Do you think it should be?

Ms Lillian Z. Cohen: For prisoners, for state prisoners, yes because I think that the state prisoner can get the kind of relief that he needs and he can get a justice sufficiently if not more efficiently given the nature of the habeas corpus remedy --

Justice Potter Stewart: Well for state prisoner who’s the gravamen of whose complaint is the custody or the conditions of the custody?

Ms Lillian Z. Cohen: Yes and necessarily --

Justice Potter Stewart: You wouldn’t limit it to -- you wouldn’t say they can’t bring the civil right suits and other context just because they’re prisoners?

Ms Lillian Z. Cohen: No, I have to vote -- as I express the question initially I am saying that in the context of claims that relate to the legality of their custody.

Justice Potter Stewart: Right or --

Ms Lillian Z. Cohen: Or the incidence of their custody in any context.

Justice Potter Stewart: Right.

Ms Lillian Z. Cohen: And as I say, you are not depriving the inmate of anything by saying that he is restricted to what is really the appropriate statute.

The argument that’s relied upon by respondent as I indicated before is the alleged delay in reaching the federal form.

But, given adequate state remedies, the delay is not a source of prejudice to the inmate.

In the case where you have --

Justice Potter Stewart: But of course if they are not adequate he doesn’t need to exhaust him?

Ms Lillian Z. Cohen: Not at all, exactly.

That’s exactly the standard for the operation of Section 2254.

For example in Wilwording against Swenson in this Court held that Missouri provided no remedies to state prisoners for the presentation of this type of claim.

Presumably, if since the Wilwording decision, Missouri has not created any new remedies or any remedies at all.

Every state prisoner in Missouri could come directly to a federal court and present his claims by way of habeas corpus.

There is not a question of any delay.

On the other hand, whereas you have state like New York which has remedies, we believe that the interest of a state and its responsibility for these cases require that the application of the Section 2254 requirement apply.

You have --

Justice Potter Stewart: Administrative remedies?

Ms Lillian Z. Cohen: I am referring to both remedies here.

Justice Potter Stewart: Well, does he have to pursue if their alternative, does he have to pursue both?

Ms Lillian Z. Cohen: Well, administrative remedies would not apply in every situation in any event.

I think that if you had a situation where an inmate was challenging the constitutionality of a regulation, you would not --

Justice Potter Stewart: He’d go to a court?

Ms Lillian Z. Cohen: He would go directly to a court because it would not lie within the power of the administrator to review it.

So, in that context, the administrative exhaustion would not result in any delay either.

On the other hand, if he is going to be suing the Department of Correction on the ground that a regulation was improperly applied to him, it seems to me that the claim is not right until the Department of Correction has taken some action with respect to it.

Now, --

Justice Potter Stewart: I will and that would then involve in exhaustion of the administrative process including judicial state -- judicial review if any?

Ms Lillian Z. Cohen: That’s right.

Justice Thurgood Marshall: So, that if he is complaining about problems in the prison, he had to go for habeas corpus?

Ms Lillian Z. Cohen: Exactly, well, that’s the remedy this Court is already recognized as applicable to this case.

Justice Thurgood Marshall: So that if he served life imprisonment and he has complained about the fact that they hit him over the head with a club, his relief is to be released?

Ms Lillian Z. Cohen: Oh no, because the one thing that the decisions of this Court have made clear in expanding the custody concept for the habeas corpus statute is that release is not the sole relief that can be granted under the habeas corpus statute.

The habeas corpus statute says, “The court shall deal with the situation as law and justice require.”

And that means that he would be relieved to the illegal restraint under this remedy.

He need not be release from physical confinement, it’s in the statute.

Justice Thurgood Marshall: -- if the prison has the standard rule and all the prisons of New York that redhead people shall not eat, habeas corpus?

Ms Lillian Z. Cohen: Yes, because this is an incident of custody and in this case what you have is a restraint that goes beyond the legal limits of the sentence that have been imposed by state court.

Justice Thurgood Marshall: You don’t think the Civil Rights Act will reach that one.

Ms Lillian Z. Cohen: The Civil Rights Act could not reach unless there was a basis for it a tenable damage claim in which case the inmate could come to the federal court to [Voice Overlap].

Justice Thurgood Marshall: Well, 1983 is limited to damages.

Ms Lillian Z. Cohen: No, it’s not.

On the other hand --

Justice Thurgood Marshall: It’s also equitable.

Ms Lillian Z. Cohen: On the other hand, you are dealing with a situation --

Justice Thurgood Marshall: And he wouldn’t have a right to get an injunction to say, follow the Constitution and stop violating that?

Ms Lillian Z. Cohen: The -- well, the view we take is that habeas corpus is actually a better remedy than the injunctive proceeding because presumably the inmate would come in and seek a preliminary injunction under the Civil Rights Act so that he would get his food.

But, the habeas corpus statute would provide him with just as expeditious review and it would give him a final determination expeditiously.

Justice Thurgood Marshall: They were providing the food?

Ms Lillian Z. Cohen: Oh yes!

Because the statute --

Justice Thurgood Marshall: As soon as he filed it?

Ms Lillian Z. Cohen: Excuse me?

Justice Thurgood Marshall: As soon as he filed this habeas corpus, he would get his food?

Ms Lillian Z. Cohen: Well, there is -- it depends why are you talking his -- about filing his habeas corpus.

For example in New York, New York has an injunctive remedy.

If this inmate who is not getting his food in New York went into court, under the injunctive remedy specifically applicable to constitutional claims raised by state prisoners, he could get his injunctive relief right under that statute.

It’s designed to reach that kind of claim.

Justice Thurgood Marshall: The state statute?

Ms Lillian Z. Cohen: Yes, and that’s --

Justice Thurgood Marshall: Which I am not and restate here.

Is there any action in habeas corpus that similar to TRO?

Ms Lillian Z. Cohen: Well, my point is that there is no need for it.

Justice Thurgood Marshall: Is there?

Ms Lillian Z. Cohen: No.

Justice Thurgood Marshall: And there’s nothing like a preliminary habeas corpus, isn’t it?

Ms Lillian Z. Cohen: No, there’s a final habeas corpus.

Justice Thurgood Marshall: So if you want some immediate relief, how can you get it in habeas corpus as swiftly as you can by temporary restraining order?

Ms Lillian Z. Cohen: Because when he comes into federal court on a habeas corpus petition, the statute -- the habeas corpus statute requires that that application be expeditiously decided.

Unlike the Civil Rights Act where there is no legal injunctions in the statute that the action has to be specifically decided.

Unknown Speaker: But typically, if your petition is that before coming to the habeas corpus court, they must go to the state court?

Ms Lillian Z. Cohen: But that only assumes that state remedies are inadequate and what I’ve been referring to now is an injunction proceeding that’s available by statutes specifically to this type of claim.

Unknown Speaker: In the state court?

Ms Lillian Z. Cohen: Yes, it is.

It was enacted as a matter --

Unknown Speaker: And it would be a habeas corpus in there, it would or already taken to kind it would be a specific equitable action provided for by the state law?

Ms Lillian Z. Cohen: But provided for a state law enacted.

Unknown Speaker: Except that he could -- he’d have to first to exhaust that’s what you told us in the state of administrative remedies?

Ms Lillian Z. Cohen: Well, he would have to and but in that respect it wouldn’t be any different than if he were a federal prisoner before he can come in to a court, any court or federal court and seek and any relief from his confinement must pursue his administrative remedies.

Unknown Speaker: But what about of the 1983 suit?

Ms Lillian Z. Cohen: He can’t come in under 1983 because if he is suing a federal administrator if there is no state action.

Unknown Speaker: Let’s assume -- let’s assume it were a 1983 suit against State, you don’t have to exhaust the administrative remedies.

Ms Lillian Z. Cohen: Yes, we are saying that if there are administrative remedies available, that the inmate who was being deprived of food.

Suppose you have a situation of a very vindictive warden as Mr. Justice Marshall suggested that he will give food to redheads.

There’s nothing to prevent the correction of that by the Commissioner of the Department of Correction upon an appropriate appeal.

The case meant never reach a federal court based upon that assumption.

But in any event and as I say, if this were a federal prisoner who had the same grievance against his warden, he would have to pursue that remedy before he could come to a federal court for an injunctive relief and that is a disparity which respondents have never answered except to say that Section 1983 doesn’t apply to the federal prisoner.

Why is it so much more onerous for a state prisoner to have to exhaust available administrative remedies which really go to the rightness of the claim?

And that is --

Justice Thurgood Marshall: But if decided that they don’t have to do it in 1983.

Ms Lillian Z. Cohen: Well, that’s what I am asking this Court to reconsider in this case because to the extent that 1983 has been extended to state prisoners for purposes of equitable relief.

That seems to me that that’s an inappropriate extension and that it should be withdrawing.

Now, the respondents cite figures that our contention --

Justice Thurgood Marshall: And your reason is?

Ms Lillian Z. Cohen: That habeas corpus is the appropriate statute.

It deals with custody and it deals with state prisoner’s custody.

Justice Thurgood Marshall: So, that the state prisoner whatever happens to him is so relief in the federal court by habeas corpus?

Ms Lillian Z. Cohen: That’s right and you’re not depriving him of anything, you are giving him an expeditious remedy.

A remedy which I think we have demonstrated works more quickly for him in terms of getting him relief and places less of a burden on the [voice overlap] --

Justice Thurgood Marshall: How is it more -- how does it quicker than a preliminary injunction?

Ms Lillian Z. Cohen: Well, the preliminary injunction, one disadvantage that I see --

Justice Thurgood Marshall: You have preliminary injunction in three days?

Ms Lillian Z. Cohen: But that assumes a sophistication on the part of the inmate to seek a preliminary injunction based upon my experience if I may refer to that.

I have yet to see a pro se application for preliminary injunction.

They initially will follow, there maybe in cases where counsel is representing the petitioner.

But in pro se cases, they will file a civil rights complaint.

They will ask for their relief.

It will be treated the way any other civil complaint is treated.

Justice Thurgood Marshall: Now take my case here, the finest criminal lawyer in the world?

Ms Lillian Z. Cohen: The disadvantage that I see is that you get bifurcated decision.

If you do this under the Civil Rights Act, you go and then you get a preliminary injunction under the Civil Rights Act and then --

Justice Thurgood Marshall: And then he eat?

And he’s got to eat?

Ms Lillian Z. Cohen: Yes, and then you have to get it in underlying a final determination as to whether or not this validity to the claim.

Justice Thurgood Marshall: But the meantime, he is eating?

Ms Lillian Z. Cohen: He is eating.

Justice Thurgood Marshall: And if he goes the other way, he won’t be --

Ms Lillian Z. Cohen: No, my point is --

Justice Thurgood Marshall: -- until the habeas corpus is decided.

Ms Lillian Z. Cohen: But there is not reason why habeas corpus can’t result in the speedy decision and in fact I think it does.

Given the emergency situation which [Voice Overlap].

Justice Thurgood Marshall: How much time do you have to reply to the habeas corpus petitions?

Ms Lillian Z. Cohen: Twenty days, but I will say --

Justice Thurgood Marshall: That’s 20 days of not eating?

Ms Lillian Z. Cohen: No --

Justice Thurgood Marshall: Right? Right?

Ms Lillian Z. Cohen: -- now habeas corpus is an emergency remedy that’ the concept that [Voice Overlap].

Justice Thurgood Marshall: All I know it says it takes precedence and I also notice that the dockets in our precedence in some court means that you get one year instead four.

Ms Lillian Z. Cohen: As a practical matter, these are civil rights actions and these are extensively the actions before this Court now where emergency actions too and yet there was no decision in these cases for and one of these case for 10 months with passed by a long shot the time in which the man involved plaintiff is entitled to be release.

So, that’s not so clear that under the Civil Rights Act is going to be a more expeditious remedy.

Justice Thurgood Marshall: I would think that there was a possibility that you could get a preliminary injunction sooner than you could get a final decision in any case?

Ms Lillian Z. Cohen: Suppose we were to take the preliminary injunction hypothetical in the context of good time basis.

Justice Thurgood Marshall: Well, when I take a TRO while you have it?

Ms Lillian Z. Cohen: A temporary restraining order, yes.

Justice Thurgood Marshall: Which can be given in three seconds.

Ms Lillian Z. Cohen: There’s nothing to preclude the operation of the habeas corpus statute in that way.

There is nothing that says that the judge has to wait for a response from the State and in fact in upstate New York, typically that state is not putting any opposition in these cases.

They are decided right off the cuff by the judge to whom the petition is proceeded.

Justice Thurgood Marshall: Well, I can’t put my thinking on what happens in upstate New York or upstate (Inaudible) talking about the general difference between habeas corpus and temporary restraint orders and preliminary injunctions.

And I know you can get a TRO without any notice in not in (Inaudible).

And I’ve never heard of writ of habeas corpus being issued without giving the other side an opportunity to open its mouth.

Ms Lillian Z. Cohen: And based upon the experience that I have seen in my office and virtually every habeas corpus application upstate and probably the reason we windup with so many appeals in the Second Circuit is the fact that we never put in a response upstate.

Those judges get the petitions and they decide them without any response from the state.

So, there is no uniform [voice overlap].

Justice Thurgood Marshall: And has soon do they decide?

Ms Lillian Z. Cohen: Well, the very study that was cited --

Justice Thurgood Marshall: I think we are so far out of the record in this case, I don’t mind going that one step further.

Ms Lillian Z. Cohen: I don’t have specific figures except that the study that cited by respondent indicates that in some cases the averages of four months but that doesn’t mean that it can’t be sooner and it doesn’t mean that it can be later.

The average in the ordinary civil rights action has no comparison, it’s much slower.

The reason that petitioners are urging this Court to hold that an exhaustion requirement is applicable is because it is -- it places the responsibility with the state which is where I belong.

It’s the state court which placed these people in custody.

It’s the state which should decide the limits and the incidence of the sentences it imposes.

The good-conduct-cases are perfect example of this because as we heard in the prior case considered by this Court today, things like good time parole eligibility, all enter into the sentencing process.

There is a direct relationship there between sentences has imposed by state court and how sentence is carried out.

It’s in that situation that we think that the state court have the responsibility to decide on these cases first.

Another example, our case is involving the place of confinement where a man is claiming that, “I should not be in a state prison, I should be in a hospital or I should be in the narcotics addiction control center.”

Here, you are talking about the very justification for sentence and you are talking about something where the responsibility lies with the state courts which impose these sentences.

And similarly, the reason -- another reason for requiring this is that the state is regulating virtually every aspect of the inmate’s confinement.

Unlike, any comparable situation for the ordinary citizen you have the state, a situation where virtually every action which is taken with respect to the inmate is state action and lends itself to litigation.

If there is no exhaustion requirement, it seems to me that the federal courts are going to have to bear the burden of these cases and there are going to have to become involved in this very complex regulatory scheme.

The need to have some guidelines for considering these cases, I think was expressed with great urgency by the court below.

And I think that they are asking this Court for guidance and we believe that the answer to their problem lies in the habeas corpus statute not with Congress, but with the statute which is already on the books and which is applicable and that cases challenging conditions of confinement no less than cases challenging conviction share a common denominator which is custody and that they belong under the habeas corpus statute.

Chief Justice Warren E. Burger: Thank you Mrs. Cohen.

Mr. Schwartz.

Argument of Herman Schwartz

Mr. Herman Schwartz: Mr. Chief Justice and may it please the Court.

I should first like if I may to take a minute or two, to give some of the facts underlying these cases.

Because although the only issue before this Court is the jurisdictional issue, the only issue on which cert was granted.

The lower court, the Court of Appeals and its en banc decision affirmed all three cases on the merits.

And the merits were argued in several bound. But the first two cases, Kritsky and Rodriguez involved very serious disciplinary due process issues in which men were denied good time on cases which the District Court and affirmed by the Circuit Court found were grossly deficient procedures.

Mr. Katzoff who received relief very quickly by the way was punished with 60 days good time loss and 60 days in a solitary confinement for writing two mildly with derogatory comments, “creep and cigar-smoking S. O. B.” in diaries which he did not circulate and which as the Court of Appeals and District Court found every institution in which he had been permitted him to keep.

Those are the merits, now, and each of those three cases, the Circuit Court affirmed on the merits after discussion and consideration of both.

Now, what the State is asking in this case is really very simple.

It is asking the Court to repudiate a long line of well-established principles most reasonably reaffirmed last term in two cases in Wilwording and in the footnote in Humphrey and Cady footnote 18, to the effect that a state prisoner can challenged the conditions of confinement under 1983.

We are not urging this Court to reclassify every case of 1983.

We do not deny that habeas corpus may be available, this Court set so last term and that’s not the issue in this case.

The issue in this case is whether every habeas corpus case shall every prisoner’s rights case, every 1983 case shall be carved out of the jurisdiction of 1983 and construe not the way this Court, not the way untold the lower court have construed this namely as 1983 cases.

But you can construe them as habeas corpus cases requiring an exhaustion requirement.

And we say as Mr. Justice Brennan pointed out, the statute was enacted in 1871.

It was obviously no thought at that time, I am quite sure to deal with prisoner’s cases.

They obviously were dealing with problems of friction between federal and state courts as it was pointed in Mitchum and Foster quite clearly.

And it was very clear that they gave a federal form and what was then and almost revolutionary change in the federal jurisdiction.

A federal forth of federal rights and without having to go all the way through the state system and in 1961, in Monroe and Pape and in every case since then including three prisoner cases Houghton and Shafer, Wilwording and Humphrey and Cady which raised the related problems about the proper place of confinement for someone committed under the -- was Wisconsin Sexually Deviant Act and every one of these case, this Court has said flatly there is no requirement of exhaustion of either administrative or judicial remedies.

Justice William H. Rehnquist: Mr. Schwartz, do you think in the 1983 action would lie to challenge a judgment under which a man was being held to state court judgment depends on constitutional?

Mr. Herman Schwartz: No, Your Honor, that’s very clearly habeas corpus position not because of the nature of the classification, but because of the policy involved in the exhaustion doctrine.

The policy in the exhaustion doctrine is very clear, it’s to avoid friction between the judgment of a state court which it has entered or which has its holding somebody in custody and the judgment of a federal court.

That was the basis to correct Ex parte Royal and that’s what involved and that’s why several court have said that when an attempt was made to challenge a conviction under 1983, that was really in attempt to evade and we would say, we quite agree.

An attempt to evade simply should not be permitted because then it’s time to evade the exhaustion requirement.

But what we are dealing with here and this is the essence of it.

We are dealing with administrative action which of course in a variety of settings with the variety of consequences and with the variety of remedies.

The question about damages was absolutely on point in terms of what’s at stake here because these are damage actions as well as equitable actions.

It depends on whether the thing is monetary, but whatever benefits are sought to be gained from an exhaustion requirement would immediately be defeated by that and not because it’s a question of evading it but because according to the state’s own argument both remedies are available, always both forms are available and every 1983, every challenge to conditions can obviously be a challenge for monetary damages.

The fact is that the state in its brief go somewhat far did they went in oral argument because what they said is if there is a damage claim, one has to go in to the state court to get the merits decided and then into federal court to get damages.

Now, the claim is like this is habeas corpus because it’s custody.

Unknown Speaker: But I take it, even if that was so if the state court determination were adverse to the claim and than to be res judicata, the 1983 wouldn’t?

Mr. Herman Schwartz: Yes, it would Your Honor.

I take it that’s the clear implication.

I can’t see any reason why wouldn’t be.

Justice William H. Rehnquist: I don’t understand that that’s the state’s contention that in short exhaustion of state remedies is necessary before of 1983 [Voice Overlap].

Mr. Herman Schwartz: Your Honor on page 40 in their brief they say, on the contrary if an inmate obtains relief from the state courts by demonstrating a violation of the constitutional right --

Justice Potter Stewart: If he does?

Mr. Herman Schwartz: Yes, but there is no --

Justice Potter Stewart: Let’s say he has to go to the state courts, quite a different point.

Mr. Herman Schwartz: I am sorry Your Honor.

Justice Potter Stewart: Quite a different point?

Mr. Herman Schwartz: Well, if the exhaustion philosophy that they are urging --

Justice Potter Stewart: That’s the whole point, they can see that their need not be exhaustion before civil rights action is brought.

That’s the whole point of the argument.

Mr. Herman Schwartz: Well, if that’s the case then the entire policy of what they are urging which is the burden on the courts, friction, all of the rest goes out the window and there is no point to it at all. After all classifications whether or not one is going to carve out an exception and again I would say Your Honors that the statute gives the right to a state prisoner under 1983.

They are going to carve out an exception and the exception is in order to avoid federal state friction, in order to somehow avoid the burdens on these courts.

Justice William H. Rehnquist: But you said the statute gives the right to the prisoner under 1983, if you read 1983 literally without regard to the habeas corpus provision, you could use it to challenge the state judgment of conviction, couldn’t you?

Mr. Herman Schwartz: That’s quite true Your Honor and it’s at that point that the fundamental policy involved in Ex parte Royal comes into the picture such a policy does not apply here.

What we are dealing with is administrative action.

After all in 1948 when Judge Parker try to get the habeas corpus statute amended a more -- the problem that he raised was that of a federal district judge sitting in judgment on the Supreme Court of the State.

What the State is urging would produce precisely that because it would require that there be a state recourse, state judicial remedies in fact they go further.

They make prisoners do a double job contrary to what this Court said in Wilwording that state prisoners are not held to a higher standard.

They would make it doubly higher.

First, the administrative jump which is difficult to see it from their argument as to habeas corpus and then the judicial job.

And what would then happen is that a Federal District Court would be sitting in judgment on a state Supreme Court’s ruling on whether or not there was a violation of the federal constitution.

Now that, will -- if anything exacerbate the federal state relations because that’s precisely the kind of problem that some of the movements for amendment of the habeas corpus act produced --

Chief Justice Warren E. Burger: You mean the state courts should rather be bypass complete than the second guessed, is that your argument?

Mr. Herman Schwartz: Well, we are dealing with state administrative of action here and most of the state courts have frankly said that because many of the state courts still retain the hands off doctrine.

And many of the state courts still say that this is a matter for the executive and Your Honors, prisons are really not that unique.

The same argument --

Justice Byron R. White: Well, you don’t deny that these prisoners wouldn’t have remedy in the state court rule?

Mr. Herman Schwartz: They -- it depends on the particular state.

In New York they would have --

Justice Byron R. White: Well, why talk about New York?

Mr. Herman Schwartz: They would have an action for equitable relief under Section 79 (c).

Yes of the New York Civil Rights so --

Justice Byron R. White: Well, so that what they argue is of the New York laws to [voice overlap] -- and court, do you think the New York courts refer to be bypassed (Inaudible)?

Mr. Herman Schwartz: It’s hard for me to answer what a whole group of courts would prefer to do a whole group of individuals -

Justice Byron R. White: As representative of the State would merely say the State would prefer to be bypassed?

Mr. Herman Schwartz: I would take it then they would not prefer to be bypassed.

I would take the Attorney General’s representation on that, but of course the whole premise of the Civil Rights Act as clearly laid out in Monroe and Pape and Mitchum and Foster is that when we are dealing with the federal rights assuror has the right to a federal form and he has the right without exhaustion and cases are legion to that effect just last year on the administrative issue in --

Justice Byron R. White: Still can – we still believe that the 1983 statute must be accommodated in the federal habeas corpus statute and when you do get into the area of counting a judgment at least then you [Voice Overlap].

Mr. Herman Schwartz: Yes, that’s right.

Justice Byron R. White: At least then you make the 1983 although literally on its face reads on this situation.

Mr. Herman Schwartz: Yes.

Justice Byron R. White: It nevertheless does not cover?

Mr. Herman Schwartz: That’s right Your Honor and that’s include --

Justice Byron R. White: And you could also say, I suppose that if you are not challenging a judgment but you are claiming release from custody for failure to give good time or what, would you --?

Mr. Herman Schwartz: No, no, on the good time --

Justice Byron R. White: Do you say it’s a 1983?

Mr. Herman Schwartz: Yes, Your Honor because the good time factor is clearly fortuitous because to make the issue turn or whether or not good time is involved makes it turn on whether the action of the state that’s challenged involves the sanction, involving the rules of good time and that --

Justice Byron R. White: Historically, federal agent purpose would reach something even before judgment?

Mr. Herman Schwartz: Yes, initially it was available --

Justice William H. Rehnquist: [Voice Overlap] historically it would reach something only before judgment?

Mr. Herman Schwartz: That’s right but essential what we are dealing with is still action by a state court.

That’s the problem of the friction, that’s what gave rise to Ex Parte Rom -- Ex Parte Royal deals with the prejudgment situation.

It deals with the lawyer who is confined before the trial, but and in so far as we are dealing with review of state court action as the state court accrue the exhaustion doctrine applied.

But if we are dealing with good time, a simple hypothetical will illustrate it.

Suppose the state has a rule that prohibits black and white prisoners from mingling together and two such prisoners, two white prisoners or black prisoners do.

One man is deprived of good time and the other man will say, loses a good job and those things happen all the time.

The first man challenging exactly the same conduct, we’ll have to exhaust and go through the entire state system.

The second man will not if one makes to turn a good time and if somebody else chooses to sue damages for this kind of thing, again the very same state interest, the very same state action simply puts a different remedy he will then have to go in and sue -- he will then be permitted to --

Justice Byron R. White: Am I understanding now that you are arguing a habeas corpus would not be available?

Mr. Herman Schwartz: Habeas corpus -- well, this Court has said that habeas corpus lies to challenge the conditions of confinement as well.

Justice Byron R. White: Are you saying there is a choice between habeas corpus and [Voice Overlap] is that --

Mr. Herman Schwartz: I am saying that this Court said precisely that.

Justice Byron R. White: What’s your position?

Mr. Herman Schwartz: My position is that this case raises the question of whether 1983 is available.

If I had to choose, I probably would say, these were essentially challenges to administrative action, official state action.

Therefore, 1983 would be more appropriate.

On the other hand --

Justice Byron R. White: Exclusive?

Mr. Herman Schwartz: If I well, that’s a choice if you are forcing me say that it be, if you are asking me to say the choices are either an exclusive 1983 or habeas corpus then clearly I choose an exclusive 1983.

Because that’s precisely what the 1871 statute was established for.

Unknown Speaker: But you also I gather, don’t you imply that a view that if maybe that both remedies are available and it up to the prisoner to choose which?

Mr. Herman Schwartz: I am saying that that’s what this Court has said, that’s precisely what in the Wilwording -- part two of the Wilwording decision opens precisely with that line.

Part two says, moreover although cognizable in federal habeas corpus see Johnson and Avery, petitioners pleading may also be read to plea cause of action in the Civil Rights Act.

And I am saying that this Court has given them that right.

This case does not raise that issue of whether he has a habeas corpus right, in this case, what --

Unknown Speaker: You mean to agree with the state here, are you suggesting we have to overrule Wilwording?

Mr. Herman Schwartz: Absolutely.

Unknown Speaker: Or just a valid at least to that sentence?

Mr. Herman Schwartz: Absolutely, not only that, but you would have to move directly backward from what you did and what courts have done in Wilwording and another cases.

What courts have done frequently is to say that we will construe the habeas corpus as 1983, what the State to say construe 1983 as habeas corpus.

Now, there are claims that the federal courts were being overburdened and that is obviously a very appealing and important argument.

If the federal court is overburdened with one kind of case, it means justice is denied to every one.

But the problem with argument is first of all the 1871 statute or any statute has never been construed to allow a carve out because of that problem.

Secondly, the whole question of burden is something that we agree we don’t know.

The statistics in the ABA brief and as you know the ABA filed an amicus brief in support of the respondent’s position.

The ABA points out that some like 3.4% of the civil cases are prisoner’s Civil Rights Act cases.

The statistic show that takes up very little time, well, be that as it may the fact is that these complicated questions of burdensomeness of appropriate remedy or appropriately for Congress.

These involves studies, they are about studies of what is a proper alternative in some cases as the ABA points out properly, the Congress has decided to introduce an exhaustion requirement such as with, you would say utility regulation.

In other cases, there maybe many other devices to handle these problems, but certainly as we discovered in the mid 60’s in connection with habeas corpus, the burden was not what it seemed and over time it even doubt and flattened out and that would be true here as well.

The most -- in some ways the most interesting aspect of the state’s argument is the request for an exhaustion of administrative remedies.

If this is habeas corpus, where does that come from?

What this Court is really asking what the stage is really asking this Court to do, is to overrule the long line of decisions in 1983 cases and the line of recent prisoner decisions in 1983 where the exact same issues were raised.

The exact same arguments were presented and dismissed in pre curiam.

They are asking this Court to repute.

In Houghton-Shafer, the Attorney General of Pennsylvania said, present cases are unique and this will produce multitude in this litigation.

This Court rejected that argument unanimously and pre curiam.

In McNeese, the Attorney General argued that education is unique and therefore we have to have special exhaustion requirements this Court rejected.

Now, I think I have probably said enough to respond to most of the points that seem to me to be worth mentioning on this.

I would say only with respect to one other thing and that’s this.

Our prisons today are in a mess.

Nobody has made that point more clear than the Chief Justice and the President.

And there are signs of change and those signs of change as Maurice Sigler, Chairman of the Federal Parole Board said, are in part of result of the action of the federal courts doing what the 1871 Act said they should do.

And, that is to make the constitutional apply to areas where the States are not fulfilling constitutional mandate.

For this Court now to repudiate this long line of cases, let’s say 1983 is not available is to say to the prisoner not merely that you are second class citizen which all society says anyway.

But to say to him that you are second class with respect to access to federal courts and with respect to federal rights.

And it seems to me that that would be a devastating thing to say at this time in our history when they are beginning of signs for some improvement and this is change.

I --

Chief Justice Warren E. Burger: Would you say that the prisoners are second class citizen with respect to access to federal court because he has to exhaust in a habeas corpus challenged to a judgment?

Mr. Herman Schwartz: Yes -- no, not to a judgment because who else is there who challenges judgments except prisoners of one kind or another.

Chief Justice Warren E. Burger: Well, who challenges prison regulations besides the prisoners?

Mr. Herman Schwartz: Oh!

I am talking about the whole range of federal rights and education else whereas it happens, other can challenge regulation except prisoners.

I guess their families can, if they are suing for the damages and there was harm to them.

But essentially that I quite agree with that in so far as by second class I mean as opposed to other litigants seeking to affirm federal rights.

And I would yield the balance of my time unless the Court has questions on this issue.

Justice Byron R. White: Now, today if you -- the 1983 approach would be subject to the normal rules of res judicata, I take it?

Mr. Herman Schwartz: Yes, Your Honor, it would be.

I see no reason to think that it would not be.

Justice Byron R. White: Well, assume -- assume we agree with you but a prisoner resorts to the state courts first?

Mr. Herman Schwartz: Yes.

Justice Byron R. White: And then comes the federal court with the 1983 action.

Mr. Herman Schwartz: I would assume that it is res judicata as just as it is with any other litigant --

Unknown Speaker: Even if his action in the state court is habeas corpus?

Mr. Herman Schwartz: Yes because well, to be perfectly honest I would think that --

Unknown Speaker: Well, how did we ever get to that contrary position in part to Wilwording?

Mr. Herman Schwartz: Well, the issue in Wilwording on that particular issue was that there were some question as -- I am sorry are you talking between the state habeas and the federal?

Unknown Speaker: Well, under your position that if you brought a state habeas corpus action first?

Mr. Herman Schwartz: Yes.

Unknown Speaker: And then when turned down then you purport to bring a 1983 action the federal courts res judicata?

Mr. Herman Schwartz: Yes, except he was dismissed on jurisdictional grounds in the state court.

Missouri said that there was no remedy that was available or this isn’t the right remedy and I would think res judicata would never apply on that context.

Unknown Speaker: Yes.

Mr. Herman Schwartz: Missouri I think, in that case, did not consider the issue on the merits.

Unknown Speaker: But if they had?

Mr. Herman Schwartz: I think if they had, I think that he suffers the burden of any other litigant which is that if he’s had one day in court, he’s had one day in court assuming that was a full and fair hearing and that there were no infirmities.

Unknown Speaker: But if you were purporting to bring a federal habeas corpus action says that should be available as a matter of choice?

Then he must if he chose the wrong remedy in the first place in the state court, he should be sent back to get the right whenever it’s available?

Mr. Herman Schwartz: Well, that’s a matter of habeas corpus law and [Voice Overlap]

Unknown Speaker: Well, I agree with you but isn’t that right?

Mr. Herman Schwartz: If it’s an available statute -- yes it’s available remedy yes which would mean of course that his attempt to get his federal right would be prolonged in further in a situation when he may be as Mr. Justice Marshall says not eating.

Rebuttal of Lillian Z. Cohen

Ms Lillian Z. Cohen: I believe I have --

Chief Justice Warren E. Burger: Mrs. Cohen you have about three minutes left.

Ms Lillian Z. Cohen: Okay, that’s fine.

There are two points that I would like to reply to.

First, contrary to what counsel has suggested, we are not asking this Court to overrule the Wilwording decision.

The specific holding of Wilwording is entirely consistent with our position.

The claims there were habeas corpus claims, the question was whether or not the exhaustion requirement applied and this Court held that the claims were recognizable as habeas corpus claims and in fact that the exhaustion requirement applied.

It is the dictum in Wilwording that we are asking this Court to reconsider and just as a point of interest, I would like to tell the Court that in the Wilwording, on the remand despite the dictum of this Court, the parties and the Court are still considering these cases as habeas corpus petitions because of the res judicata problem.

The second point I would like to reply to is the figures that were cited by counsel with regard to the numbers of cases that are being brought in the federal courts right now.

The fact is that the figures cited in the American Bar Association Study seem to show a drop in the rate of increase of prisoner’s civil rights actions.

And to me that suggests a real -- a substantial reply to the concern of counsel for respondents that these claims are not being reviewed.

Prison conditions have not changed overnight, the prison population has not decreased overnight and yet there are less of these claims coming in to the federal courts in the last two years.

Then must be being decided some place and it seems to me that what is happening is that in line with the change that has been reflected in recent decisions, it’s not only the federal courts but also of the state courts.

You are getting prison conditions corrected by state administrators and or by state courts and I think that’s a response to the exhaustion object that’s being raised today.

Chief Justice Warren E. Burger: Well, Mrs. Cohen, do you think that the numbers of cases is ever relevant to a constitutional question if there is a constitutional question?

Ms Lillian Z. Cohen: Not at all.

And I don’t believe that in any point in these cases we have argued that the numbers of cases is illegal justification for action.

At most, we have suggested that as a consequence of the approach which we suggest, there maybe a reduction in the numbers of cases brought.

But that strictly fall out.

That’s not a legal argument.

Chief Justice Warren E. Burger: Thank you --

Unknown Speaker: Is this a constitutional question we have here?

Ms Lillian Z. Cohen: I think very clearly, it has the right -- at yes, I think that the --

Unknown Speaker: Or is it a matter, which one of the statues is applicable or both?

Ms Lillian Z. Cohen: Well, I think it has to be considered a mixed question because you are talking about constitutional rights and the right to [Voice Overlap].

Unknown Speaker: Well, certainly the underlying claims are constitutional claims [Voice Overlap]?

Ms Lillian Z. Cohen: And you are talking about the right to present these claims and obtain review and I think that that’s a constitutional question.

Justice William H. Rehnquist: Well, but if neither 1983 nor the habeas corpus statute were on the book, could these prisoners go into the United States District Court and obtain the relief they sought?

Ms Lillian Z. Cohen: Only if they were able to meet the $10,000 jurisdictional requirement for general litigants.

Justice Potter Stewart: Well, let’s say there was not that statute either.

Ms Lillian Z. Cohen: They wouldn’t have any recourse --

Justice Potter Stewart: No, this is a statutory problem, isn’t it?

Not constitutional?

Ms Lillian Z. Cohen: Yes.

Unknown Speaker: Mrs. Cohen, couldn’t Congress tomorrow amend 1983 to support your position --

Ms Lillian Z. Cohen: They could.

Unknown Speaker: -- or amend of the Habeas Corpus Act?

Ms Lillian Z. Cohen: I don’t see that it has to amend the Habeas Corpus Act.

Unknown Speaker: No, no, I know but Congress could change this whole picture.

Ms Lillian Z. Cohen: Yes, but as I think I indicated earlier --

Unknown Speaker: I don’t see how it’s a constitutional question.

Ms Lillian Z. Cohen: Congress has not brought us to the point that we are at, it’s the decisions of this Court that have and I think that that’s what lies with this Court to resolve the problem and give guidance to the fact why federal courts have to handle these cases.

Unknown Speaker: Supposedly, they -- our past decisions have proceeded on the basis of that we were even then interpreting the statutes and purporting to apply the congressional will on their own.

Ms Lillian Z. Cohen: I think that activity would require a further action by the state in light of the arguments that we’ve made today.

Chief Justice Warren E. Burger: Well, take the other alternative is that we’re construing to alternative statutes so you’re arguing two alternatives statutes.

Ms Lillian Z. Cohen: Yes.

Chief Justice Warren E. Burger: Do the numbers of cases become relevant in how we construe the statute?

Ms Lillian Z. Cohen: Well, I think what they have done is emphasized the relevance of how the statute should be construed.

I say that not to avoid this question.

Chief Justice Warren E. Burger: My question is, may judges take that into account?

Ms Lillian Z. Cohen: I don’t think it’s a legal justification, no.

No.

Chief Justice Warren E. Burger: Thank you Mrs. Cohen.

Thank you Mr. Schwartz.

The case is submitted.