FULLER v. OREGON

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Argument of J. Marvin Kuhn

Chief Justice Warren E. Burger: We will hear arguments next in 73-5280, Fuller against Oregon.

Mr. Kuhn, you may proceed whenever you're ready.

Mr. J. Marvin Kuhn: Mr. Chief Justice, may it please the Court.

The petitioner in this case entered a plea of guilty to the charge of sodomy in Multnomah County, was placed on a term of five years probation and as a condition of the probation he was ordered to reimburse the county for the cost of his court-appointed attorney fees as well as the total of $375.00 for the cost of the investigator hired by his court-appointed attorney.

The petitioner believes that these conditions of probation, of reimbursement deny him due process as well as equal protection, and are an impermissible burden upon his right to counsel as guaranteed by the Sixth and Fourteenth Amendments.

Now, petitioner believes that this condition of probation, that he repay his court-appointed attorneys fees are an impediment to the free exercise of his right to counsel as guaranteed by this Court in Gideon versus Wainwright and recently reinforced in Argersinger versus Hamlin.

The Oregon practice which is beginning now, this is one of the first cases will have the effect of placing a financial penalty upon those indigents who need legal help, but cannot afford to retain their own counsels.

Now this issue recently was decided by the Supreme Court of the State of California in the case of in re Allen.

Now, the California Supreme Court held that the same type condition of probation as we have here was unconstitutional, because it would place an impermissible burden upon the petitioner's right to counsel in that case.

The California Court reasoned that even though there was no indication there that the petitioner had been denied her right to counsel, since she actually was represented by court-appointed counsel that the record did not show that she was ever advised of this potential liability as to the repayment and reimbursement to the county for the cost of this counsel.

Petitioner submits that such advice is also absent in the present record that we have here.

The California Court also felt that if the petitioner had had knowledge that she may have to repay the cost of her court-appointed counsel and as the knowledge of this potential burdens spreads that it could very well chill future indigents from exercising their Sixth Amendment right to counsel, rather than risking having to repay them as a condition of the probation should they be fortunate enough to receive probation.

Justice Harry A. Blackmun: Does the record have any empirical data to that effect Mr. Kuhn?

Mr. J. Marvin Kuhn: Our record has none at all.

There was the defendant or the petitioner in this case while there is nothing to indicate he was ever advised that he would have to repay counsel until such time has the conditions of probation were imposed at the sentencing.

Justice Harry A. Blackmun: But was this speculation on the part of the California Court then in the Allen case?

Mr. J. Marvin Kuhn: This was in the Allen case.

Yes, Your Honor.

Justice Harry A. Blackmun: Was it speculation on the part have occurred?

Mr. J. Marvin Kuhn: It was and it was based upon that, that it would be a chilling effect.

There was -- I saw no empirical evidence in the Allen case, indicating that this would be so, but they did had the feeling that under California practice, such would be the case.

Justice William J. Brennan: Well except that, I gather under our cases, a criminal trial could not proceed without counsel to represent the case, coult it?

Mr. J. Marvin Kuhn: A counsel can be waived Your Honor, yes.

Assuming there is full advice as to the right to counsel, counsel may be waived.

Justice William H. Rehnquist: What if the man says on arraignment, I got $50,000.00 in the bank, but I will be downed if I will use it to hire a lawyer with?

Do you think under the United States Constitution, the Trial Court is obligated to appoint counsel for him?

Mr. J. Marvin Kuhn: No, I do not Your Honor.

I believe that the case is -- the Gideon case and the all the subsequent cases indicate that if a man cannot afford counsel in that case where the man has indicated, he does have sufficient funds to retain counsel, but he will not do it and I do not believe the constitution requires counsel to be able to appoint it for him.

I believe that the thrust of Gideon Argersinger are to the effect that an indigent, a man who cannot afford counsel or where it would work a hardship upon him has a right to appointed counsel, but under no other conditions.

Now it's this chilling effect, the possible limiting of the right to counsel that the petitioner believes is at issue here and is the main issue.

Now, this is assuming that he is told by the court, prior to appointment of counsel that should he be convicted and placed on probation, that he perhaps may have this obligation to repay the cost of court-appointed counsel.

This is one provision that is not currently done in Oregon practice today.

Justice Harry A. Blackmun: Mr. Kuhn, if suppose you did not have your Oregon statute, could a Court on its own impose this is a condition of probation?

Mr. J. Marvin Kuhn: I believe that without the statute under the decisions of Oregon, I believe it could as an inherent power of the sentencing court.

Justice Harry A. Blackmun: So, is it your position then that a court must in every case prior to trial advice counsel that this is a possibility as to what it might do?

Mr. J. Marvin Kuhn: Yes, Your Honor.

It's my opinion that should --

Justice Harry A. Blackmun: At least without the statute now?

Mr. J. Marvin Kuhn: I beg your pardon, Your Honor?

Justice Harry A. Blackmun: Even without the presence of your statute?

Mr. J. Marvin Kuhn: Yes, Your Honor, I believe that as long as the petitioner or defendant is subject to the criminal statutes of repayment as a condition of probation that in order to fully ensure an understanding as to his right to counsel, that at the time the court must inform him of this possible liability.

Justice Harry A. Blackmun: Let me start all over again.

I am assuming Oregon does not have this kind of a statute as most states do not, then I thought I asked you whether a court on its own could impose this as a condition of probation and I thought you said yes?

Mr. J. Marvin Kuhn: Oh! I am sorry.

I thought that perhaps you meant whether Oregon has statute that specifically allowed this as a condition of probation.

I do believe that the court could impose this condition, without such a statute in Oregon.

Justice Harry A. Blackmun: Then my next question was, then must the court in every criminal case so advice the defendant?

Mr. J. Marvin Kuhn: Yes, my answer is the same.

If the indigent appears without counsel and at the time advice of counsel is given, this possibility should be explained to him.

Justice Harry A. Blackmun: And if he does not, then the condition may not be imposed?

Mr. J. Marvin Kuhn: That is our position, yes.

However, I believe that even if counsel, if it is explained to him that the condition itself is an impediment to the free exercise --

Justice William J. Brennan: Did you say how often when this condition is imposed?

Mr. J. Marvin Kuhn: It's -- this is -- perhaps, this is the first case I have heard about in Oregon, You Honor, this one here.

Subsequent to this, I am aware of the practice being carried on in Washington County, Oregon and in Lane County, Oregon as to --

Justice William J. Brennan: In every case or --

Mr. J. Marvin Kuhn: Not in every case.

No, Your Honor.

Justice William J. Brennan: Whether the criteria was determined whether this should be imposed?

Mr. J. Marvin Kuhn: That I am not clear on it.

I would assume it is on the -- depending upon each individual defendant that appears before the court at the time of sentencing and to great amount to as to what appears in pre-sentence report.

Justice William J. Brennan: And does the practice differ among judges too?

Mr. J. Marvin Kuhn: Yes, it does Your Honor.

Justice William J. Brennan: Some do and some wont?

Mr. J. Marvin Kuhn: That's correct and within the same county.

Justice Lewis F. Powell: Mr. Kuhn, what are the elements of court cost that may be imposed on a convicted defendant under the Oregon statute, in addition to counsel?

Mr. J. Marvin Kuhn: In addition to counsel, I believe that the statute is worded to the effect that costs cannot include, those costs that are inherent in affording the defendant, his right to jury trial such as subpoenas, jury fees, fees and cost of the district attorney are not included.

It's more of a statute of exclusion I believe rather than inclusion.

Chief Justice Warren E. Burger: Not very substantial then I take it from what you describe.

Mr. J. Marvin Kuhn: It could be the possible cost Your Honor, if --

Chief Justice Warren E. Burger: Now what --

Mr. J. Marvin Kuhn: -- the experts, investigators, are hired such as here, as Judge Fort pointed out in his dissenting opinion.

The defendant may very well become liable for that also.

In response to the former question, this is case in Douglas County.

Now, as to the cost of the psychiatrist, the cost of the investigator, these may all become conditions of reimbursement and made a condition of probation.

Now, the possibility of this chilling effect, I believe that the --

Unknown Speaker: Well, of course in those cases you don't have the argument of burden on assistance to counsel.

Mr. J. Marvin Kuhn: Not as to the Sixth Amendment right to counsel.

No, Your Honor.

Unknown Speaker: What then would it make any point of those?

Mr. J. Marvin Kuhn: I believe for such as that -- it may be an impingement on his right to jury trial.

It's guaranteed by the Sixth Amendment.

Unknown Speaker: Including the psychiatric -- reimbursement to the psychiatric cost?

Mr. J. Marvin Kuhn: Yes, Your Honor.

If the defendant has obtained these witnesses in order to present a complete defense then I believe that it would impinge on his right to trial by jury.

Unknown Speaker: But suppose you had the jury waive the trial?

Mr. J. Marvin Kuhn: I believe it would be the same, since the right to trial by jury, as I understand it, includes the right to put on a defense, whether or not is before the court who becomes the trier of fact.

Now, it is this possible chilling effect here that I believe that the Oregon Court's opinion did not recognize.

As the court held that the defendant is given counsel when he needs it, but petitioner believes this does not answer the question, since it is the possible chilling effect and of those possible indigents who just won't accept counsel if they are made aware of the fact that they may have to repay the county and then this repayment then becomes a condition of probation.

As Mr. Chief Justice Burger indicated in the concurring opinion Argersinger versus Hamlin, representation by counsel is desirable at criminal cases from both the viewpoint of the defendant and society.

So the defendant would submit here that the Oregon practice injures not only the particular indigent facing the criminal trial of which he is presumed to be innocent, but of society as a whole, because if such a condition as we believe it does, discourages counsel to those who need it most when they need it, the entire judicial framework within which society lives, defendant believes is wicked.

Now, this possible chilling effect was noted by the American Bar Association Project on providing defense services in which they pointed out that the practice would discourage the acceptance of counsel and their opinions and recommended that reimbursement for providing counsel should not be required except on the ground where fraud is used in obtaining court-appointed counsel or in presenting indigency to the court.

Justice William H. Rehnquist: What sort of sanctions attach under Oregon Law to the failure of a defendant who was required to pay counsel fees?

What is citation for contempt, if he failed to do it?

Mr. J. Marvin Kuhn: The recoupment statute indicates that he may be cited for contempt.

Justice William H. Rehnquist: Is it a defense on his part in the contempt hearing that he is unable to do it, like for instance a contempt hearing on a support order in a matrimonial case?

Mr. J. Marvin Kuhn: Now in a contempt hearing, I believe that would be a defense.

However, here where it is a condition of probation under the Oregon Statute 137.550, when it is made a condition of probation, he does place the possibility of being sent to prison for the failure to pay.

The Oregon Court of Appeals in its opinion, majority --

Justice Harry A. Blackmun: Because they canceled probation?

Mr. J. Marvin Kuhn: I beg your pardon Your Honor?

Justice Harry A. Blackmun: Because they canceled probation?

Mr. J. Marvin Kuhn: Yes, Your Honor, as he did not live up to the term of probation of repayment, he therefore may have his probation revoked and be sent to prison.

Justice William H. Rehnquist: Well, do we know anything about the position of the Oregon law as to whether if in a probation revocation hearing, he were to say, I simply am not able to make the payment whether they would nonetheless revoke his probation?

Mr. J. Marvin Kuhn: The Oregon Court of Appeals in the opinion in this case indicated that pursuant to the statute, a defendant may not be revoked unless the court finds he is unable to pay and that he did not pay as a result of an intentional contumacious default.

In other words or that -- if the court finds he had the ability to pay and didn't pay intentionally, then he could be revoked, without those two findings according to the majority opinion, he cannot be revoked.

However the --

Justice Byron R. White: How about that, do you accept that?

Mr. J. Marvin Kuhn: No, Your Honor, as to --

Justice Byron R. White: Now, don't we accept that though as an authoritative construction of Oregon law?

Mr. J. Marvin Kuhn: Yes, Your Honor.

I believe, but however that is this case, that was the majority opinion in this case.

Justice Byron R. White: Well, if the person knows that he's not going to have to pay as admission to probation unless he has the money and deliberately refuses to pay, is that much of a deterrent?

Mr. J. Marvin Kuhn: I believe --

Justice Byron R. White: It might be dragged on the right to counsel?

Mr. J. Marvin Kuhn: I believe it is.

It's the risk, Your Honor, as to trying to separate the revocation from the original advice as to the rights of counsel.

In the initial stages, the damaging part of this condition of probation in my opinion, is that at the time even if an indigent felt he may incur another debt.

Now, that maybe all he is and at that time if he says -- if he believes in his own mind that this is going to burden me with another debt that I may have to pay on time and because of that if he then gives up his right to counsel then this is the chilling effect, and this I believe is the infringement on the constitutional right.

It's the --

Justice Thurgood Marshall: Well, how could you assume that the average indigent criminal fears another debt?

Mr. J. Marvin Kuhn: I personally experienced for one thing, Your Honor.

I have had this occur on appeals at one time on many occasions.

Justice Thurgood Marshall: And that was the only reason he didn't want a lawyer?

Mr. J. Marvin Kuhn: That is correct.

Justice Thurgood Marshall: But it's not my experience, not being with legal aid societies for long time.

It's just the opposite.

They will sign anything.

Mr. J. Marvin Kuhn: The penitentiary inmates at one time, prior to this Your Honor --

Justice Thurgood Marshall: I know there are a lot of penitentiary inmates that don't want a public defendant previously--

Mr. J. Marvin Kuhn: No, they wish to appeal until they were -- and we felt that we had to advise them that at the time, subsequent to the inclusion of the appeal that we would file a cost bill, as to our costs and pursuant to the Oregon law that it would then perhaps could become a lien and they would be required to pay and they had given up --

Justice Thurgood Marshall: How many of your clients in the penitentiary know what lien is?

Mr. J. Marvin Kuhn: Quite a few.

Justice Thurgood Marshall: You have got art class in Oregon.

Mr. J. Marvin Kuhn: Yes, Your Honor.

Now although this Court did not reach this issue in James versus Strange, it has held that an individual cannot be penalized for exercising a constitutional right and penalty as defined by Malloy versus Hogan as any sanction that makes the assertion of the privilege costly and the petitioner submits that this would be very costly and one of the most costly things, I could think of, if he did waive the right to counsel in order to avoid further debt.

The Court has protected the Fifth Amendment right in United States versus Jackson, Garner versus Broderick, and Sanitation Men Association versus the Commissioner.

The latter case is holding that the petitioners could not be dismissed from their positions for asserting their Fifth Amendment rights against self-incrimination.

We submit that the right to counsel is as fundamental, a constitutional right as a right to silence protected under her Fifth Amendment.

Now, I think the position was extinctly stated by Judge Fort who dissented in the instant case, when he indicated that if an accused is represented by court-appointed counsel and does avail himself of the procedure, such as calling witnesses, or calling an investigator, or other experts, who was in a defense and loses, he faces a double prospect for having in good faith utilized the adversary system of repayment of a debt and a possible imprisonment for failure to repay.

Now, the petitioner also submits that the condition of probation denies him equal protection.

The Oregon Court distinguished the Oregon recoupment statutes from the one condemned in James versus Strange because the Oregon statute did not contain within it a denial of the exemptions from execution afforded to other judgment debtors.

However, as Judge Fort indicated in his dissenting opinion, there is nothing to support such a construction as there is nothing in ORS 161.675, paragraph 2 or ORS 137.550 that affords a defendant in a revocation proceeding the same exemptions provided in other Oregon judgment debtors as appears in chapter 23 of the Oregon Revised Statutes.

For this reason, Judge Fort and petitioner believes that the Oregon statute is essentially no different from that statute condemned in James versus Strange.

Another difference is that the Kansas Statute was civil in nature, the Oregon Statute as applied as a condition of probation is part of the criminal procedure and that as in effect of this, that an indigent whose probation is revoked is in effect being punished for a debt owed to the state.

And it does create a gulf between the man with money and a man without.

Now, even though the Court of Appeals did hold that a probationer in Oregon could not be imprisoned for the failure to pay, unless the default was intentional, the Court when it made that statement did not attempt to distinguish the Oregon Statute from the Kansas Statute there as nothing was said about the petitioner being able to claim his exemptions in a revocation hearing, the same as other judgment debtors are allowed to do so in Oregon in civil proceedings against them.

Now for this reason, petitioner believes that Oregon law discriminates against those convicted indigent defendants who are placed on probation.

Now, it does not apply to any of the other convicted indigents who are sentenced to the penitentiary.

And for this reason, petitioner submits that it does not make sense to carve a class out of a class, such as convicted indigents to carve out of that class, a class of convicted indigents who are put on probation and apply the condition and requirement that they repay against them only, when as a matter of practice have been unable to find any case where a man sentenced to the penitentiary has in fact been sentenced to pay and required to pay the cost of his court-appointed attorney.

So although he is assessed other costs, -- I have no found no case that indicates he has been required to repay he cost of his court-appointed attorneys fees as only probationers are now required to do in Oregon.

Justice Potter Stewart: Mr. Kuhn, I think you told us that, first of all the statute by its terms is permissive, it authorizes the judge to do this, it doesn't require to and you told us that there is a good deal of variation in the various --

Mr. J. Marvin Kuhn: Yes, Your Honor.

Justice Potter Stewart: Now the Courts in Oregon, depending upon the particular judge and I suppose in any Court upon the particular case?

Mr. J. Marvin Kuhn: Yes, I believe that's the reasons.

Justice Potter Stewart: My brother Blackmun asked you this question, and I would like to follow it up.

Do you suppose that even in the total absence of the statute, wouldn't it arguably be a permissible condition of probation to require that the convicted person put on probation should repay the court-appointed lawyer to the extent that he could, when he could?

Certainly, it's a very usual thing that requires a condition of probation, reparations to the victim for example, is it not?

Mr. J. Marvin Kuhn: Yes, there is Your Honor.

I believe there is a difference between reparation to the victim.

Justice Potter Stewart: I appreciate they are not exactly the same and that's the reason I am asking you the question.

Generally speaking, all kinds of conditions that can be imposed on probation, can they not?

Mr. J. Marvin Kuhn: Yes they may, Your Honor --

Justice Potter Stewart: Staying away from various people, staying away from various places, doing a steady job.

Mr. J. Marvin Kuhn: Under our statute, it does indicate without the recoupment statute, I believe that the Court would still be authorized to impose such a condition of probation.

Justice Potter Stewart: You mean any court, anywhere unless there were --

Mr. J. Marvin Kuhn: Yes Your Honor.

Justice Potter Stewart: -- specific statutory provision against it?

Mr. J. Marvin Kuhn: I believe they would be.

I believe that this would be inherent in the power of the courts.

Justice Potter Stewart: As a condition of probation?

Mr. J. Marvin Kuhn: Yes, Your Honor.

Assuming it was not a burden.

Justice Potter Stewart: So the statute maybe really then I have much to do with it, whether or not it is just a valid condition?

Mr. J. Marvin Kuhn: Yes, Your Honor, that's the main issue I believe here is, whether or not this condition of probation is valid.

It's our main position actually that it is not because it is unnecessary infringement upon the right to counsel.

Chief Justice Warren E. Burger: Mr. Solicitor General.

Argument of Gillette

Mr. Gillette: Mr. Chief Justice, and may it please the Court.

A number of questions from the Court today have raised the essential issues, and the case and I should like, if I may to simply refer back to those questions and deal with the approach of the State of Oregon, I would like to take with regard to those questions.

First of all with regard to the chilling effect question, the question was raised by Mr. Justice Blackmun, as to whether or not in any case, in any jurisdiction a judge could impose a condition such as the one imposed on Prince Eric Fuller in this case and we would submit that with the exception of California, which apparently has decided in Re Allen that you can't do that.

The answer is probably yes in most jurisdictions.

Certainly, I believe it's yes in Oregon and in fact there is in the Federal District Court in Oregon at this time.

Another case, Washington versus Music, which has been stayed pending the result in this case, where the judge purported to make exactly this condition of probation based upon his inherent power and not apply any statutory power.

Justice Potter Stewart: It was a Federal Judge?

Mr. Gillette: No, it's a District Judge in the County in Northern Oregon.

His explanation of why he imposed the condition was that he believed that he had the inherent power to do it.

Justice Potter Stewart: But he also had the statute?

Mr. Gillette: He also had the statute which he didn't even know about it.

That's what happened.

The case in other respect similar to this one, it would appear that the defendant in fact was capable of paying.

But I want to point out to the Court that the way attorneys are appointed in these situations is usually -- it usually arises as a result of a relatively summary proceeding.

An individual is brought before an arraigning magistrate and the first concern of the magistrate is that the individual be advised that he has been charged with the criminal offense and secondly, to determine whether or not the individual has counsel and since usually he doesn't in Oregon or for that matter, almost anywhere else.

The next inquiry is, can you afford one?

And the answer frequently is not a simple yes or no.

The answer is, I don't know, because the individual may be for the first time encountering the question of whether he can afford counsel.

The court will in most instances err on the side of appointing an attorney, rather than let the defendant go without counsel any longer and I would submit that that is definitely the best choice.

The individual needs help then and the court in rather summary fashion is going to get him a lawyer unless the court is convinced that he can get his own.

Now, it may turn out subsequently --

Justice Potter Stewart: This happens when at the initial appearance?

Mr. Gillette: At the initial -- The initial appearance, that's right.

This usually although not always, usually arises, because the individual was arrested without a warrant, pursuant of having been arrested on probable cause.

Chief Justice Warren E. Burger: How soon after the arrest does this usually take place in Oregon?

Mr. Gillette: Well, a decision on it's release has to be made within 36 hours.

It could take as long as two-and-a-half days for the arraignment to occur if he is arrested on a Friday night and he is not arraigned until Monday morning.

The difference between the release decision and the attorney decision is simply based upon the fact.

We haven't quite caught up procedurally in the latter matter with the former.

I would expect that within two years or so, we are going to get to the point where we arraign everyday, no matter whether it is weekend or not.

Justice Potter Stewart: Well is the arraignment -- the arraignment is not the same as initial appearance, is it?

Mr. Gillette: Not always; not always; no.

Usually it is, because the way we process things of an individual has been arrested even on probable cause and information of felony or information of misdemeanor, the charging document has been prepared by the time he appears in Court, even if it is a matter of three or four hours.

Justice Potter Stewart: That's information you don't have indictment or something?

Mr. Gillette: We have indictments but normally speaking the individual who's been arrested is appearing before an inferior magistrate at that time and the Grand Jury has no time to proceed yet.

We have a bifurcated system in which the individual gets arraigned, gets the chance for preliminary hearing, and then he is bound over.

Justice Potter Stewart: And then he is bound over?

Mr. Gillette: And then he is bound over, that's right.

So he gets -- in fact, he gets attorneys appointed twice, if he goes to that process.

The same one is normally appointed the second time around, but the concern is always, does he have a lawyer.

If he doesn't, let's get him one because we want to get down with the rest of the procedure.

Now, the question was raised by Mr. Justice Brennan as to which counties follow this practice in Oregon and to what extent?

And because no one had ever tried to figure this out, I conducted what is unfortunately a most informal poll, but it appears in the addendum of my brief at page 30.

It indicates that the majority of counties are utilizing the practice, although to a limited extent.

I think the largest amount collected during calendar year 1973 was $9,220.00.

That's a fairly sensible figure in view of the fact that it is seldom going to happen that an individual who is genuinely indigent at the time he seeks counsel improves upon his condition by the time he is found guilty of the charge.

Justice William J. Brennan: How did they fix the amount?

This is $350.00 or something?

Mr. Gillette: $375.00 as investigator's fees.

And I cannot, for the moment, remember what the record discloses as to the attorney's fees.

Part of the problem here is the decision to pay them was made on an informal basis outside the courtroom door.

The defendant's father actually paid the money.

The defendant's father was very wealthy and had flown out from Philadelphia and suddenly become concerned with his son's affairs finally after he's been arrested and on a delayed basis retained the lawyer and paid him.

So we have a less than perfect fact situation in that regard.

Justice William J. Brennan: Well, in those other cases where the conditions have been imposed, is there any criterion by which they fix the amount?

Mr. Gillette: Yes, sir there is.

First of all, there's the statutory scheme, which sets forth to the minimum fee and that's usually the maximum fee as it turns out.

That's usually the fee paid.

In extraordinary cases, the judge will upon a proper showing by affidavit from the attorney, grant certain additional amounts, but it is rare that he does this.

Justice William J. Brennan: Does it depend, for example, on whether there's a guilty plea or whether there is a trial or how long the trial is?

Mr. Gillette: That's right.

The statute itemized is the various dispositions that may be made and sets forth the fees that are to be paid in this case, they are very low.

It would be hard to make a living out of it at least.

Justice William H. Rehnquist: Mr. Gillette, in your addendum, I noticed that for Multnomah County, which I assume is by far the most populous county in the State, the answer is, yes they do utilize the system but there's nobody making payment and there has been nothing collected in 1973, is there anything peculiar about Multnomah?

Mr. Gillette: The peculiarity of Multnomah County is they wouldn't talk to me.

They said, yes we are doing it but we don't have the statistics and we are too busy to give them to you.

Chief Justice Warren E. Burger: Well that's the big metropolitan part of the States, isn't it?

Mr. Gillette: That's right, that's Portland.

Chief Justice Warren E. Burger: And so they probably have more important things to do, more important things to do than trying to enforce the statute.

Mr. Gillette: My experience has been that, that at least is their judgment.

Yes, sir.

Justice Harry A. Blackmun: Well you're not making the zero under the number of individuals personally making payment, and it only means that you do not know the answer.

Mr. Gillette: That's right; that's right.

I should have explained that I think in the addendum.

Justice Harry A. Blackmun: And at least one other place you do have a zero which I take it is a positive answer.

Mr. Gillette: That's right.

We got an answer specifically to that question.

Chief Justice Warren E. Burger: Did you say that $9,000.00 some dollars was the total amount collected in the whole State in one year?

Mr. Gillette: No, $9220 was the total amount collected in Clackamas County, which is a bedroom county adjacent to Multnomah County based upon I think 30 or 40 individuals paying.

And that was the largest amount that was reported to us.

We necessarily conducted the survey over a brief period of time.

I suspect however this case turns out in Oregon Law Review, we'll finally find out what true facts are as published in Article I.

Unknown Speaker: Do you have any idea of how long is this practice has been followed?

Mr. Gillette: It's been going on sporadically for perhaps for the last eight or ten years; it's rare.

Unknown Speaker: How old is the statute?

Mr. Gillette: I think it was passed in 1961.

But the practice has been relatively rare, because as I say while the judges may not uniformly follow the Fuller interpretation which was placed on the statute by the Court of Appeals and may not have always limited themselves to those individuals, who in fact really weren't indigent in making the requirement.

At least now, where the Court of Appeals has affirmatively said that it is what they must find, but the matter really isn't indigent.

And that he can make the payment without hardship, either to himself or his family, the amount of privilege is going to be limited.

Justice Thurgood Marshall: Did Gideon persuade in the fairness of the statute?

Mr. Gillette: I don't know.

I wasn't at all involved in the matter at that time and I have no idea what they had in mind.

Chief Justice Warren E. Burger: Well, this is certainly a very narrowing construction of the statute by the Supreme Court, is it not?

Mr. Gillette: I think it is fair to say that the Court of Appeals believe that if the statute could not survive constitutional muster under this construction, you could not write one provided for recoupment.

So we believe, I hesitate to make a statement as quite that hyperbolic, but I think it comes close to that.

The Court was concerned to say what was being done and so they limited as much as they could in examining this Court's decision in Rinaldi versus Yeager and in the Strange case.

It was clear that this Court was going to examine not just the face of the statute, but the way it was applied and so the Court wanted to be sure, absolutely sure that the formula of words utilized in the statute wasn't just given a lip service.

That in fact, the person who was required to make these payments was affirmatively not indigent, in fact was capable of making the payments and in fact even saying that he is not indigent, maybe inaccurate because whatever indigency is, the ability to make a payment without hardship to oneself or one's family is probably a financial condition, better than not being indigent.

Unknown Speaker: Have you had any experience Mr. Solicitor General with actual since Fuller was decided?

Justice William J. Brennan: What kind of hearings does a sentencing judge has to -- before making these determinations?

Mr. Gillette: No, I have not had the opportunity to find out.

This is the one record I have seen on the question.

I have encountered one case under an older statute where with regards to something Mr. Kuhn said, where the statute provided that a losing appellant would have cost on appeal assessed against him.

We had a situation there, where an individual had cost assessed against him and what appeared to be an unfair situation.

That statute was never challenge and frankly, I think was unconstitutional because it applied to individuals who obviously couldn't have paid and in fact were incarcerated, but the legislature had the good sense to repeal it before we were faced as trying to come up with the construction that would have saved it.

And the particular case, gave rise to this information, which occurred about a month ago.

I think we got resolved, by simply pointing out that it wasn't there.

But I have not had an opportunity to see a hearing under this new procedure.

I don't think there are going to be very many.

This condition is rarely imposed in the --

Justice William J. Brennan: Do you think the judge just give up?

Mr. Gillette: No.

I don't think there are going to be many hearings.

At least with regard to revocation under this situation because in some respects this is the easiest condition to meet.

If an individual is really determined to survive on probation, rather than have it revoked he is going to meet this if anything.

It is the easiest affirmative index to give to the Court that he is meeting the terms of probation.

And so we're confident that it's going to work in those few instances in which it applies.

Now, Justice Rehnquist asked about sanctions and the answer to that, I think was fairly well heard.

The sanction is contempt and the sanction applies not just to individuals placed on probation, the sanction speaks to all convicted individuals who have this condition imposed upon them.

And Mr. Kuhn has suggested this has never happened with respect to a penitentiary inmate.

We have no statistics to show that one way or another.

Practically speaking, however, I suspect that's true, not because the courts as a matter of practice are trying to distinguish between those who are placed on probation and those who are not, but simply because people who go to jail by and large have even less chance to improve upon their original condition of indigency than to those who remain outside.

And in fact, one of the reasons sometimes that an individual is granted probation in addition to other considerations is the fact that he's got a job and he is maintaining the job and he is caring for his family and he showed another ways that he is a contributing citizen, whatever his particular offense may have been.

So I think the reasons for that distinction if in fact they are accurately portrayed, and I am willing to concede that they probably are, are reasons which arises out of the particular concern involved, and there's really no way ever to get around that kind of problem.

Chief Justice Warren E. Burger: Would it be fair to say that this statute will have almost no application, except in a situation where the defendant accused comes in with a -- whether we call it a plea negotiation or a plea discussion, whatever it is.

There is presented to the Court the idea that the man will enter a plea of guilty, if he receives probation.

And that the probation is urged because he has a good job with the substantial income of the family and then the court would say, I will accept the plea and grant probation provided you pay $25.00 a month until the total cost of your defense is made of.

Mr. Gillette: I am not sure I can say -- I follow that, I am not sure I can say it will arise in all the cases that limited but they would be nearly so limited, simply because of the nature the condition that the Fuller decision places on imposing on that requirement.

Part of the reason, I hesitate on that is because judges rarely in Oregon want to listen to any recommendation with regard to sentence and that is not part of plea negotiations normally, with the exception of one county.

DA's don't make such recommendations and judges wouldn't listen if they did, regarding that is their province and not the District Attorney's.

Chief Justice Warren E. Burger: It might come in from the defendant however with the District Attorney taking no position at all.

Mr. Gillette: That happens, they tried.

Now with regard, if I may to the permit of equal protection question, Counsel has urged this Court as it was urged upon the Oregon Court, that James versus Strange is applicable here, because the Oregon Statute just like the Kansas Statute in some way affirmatively denies to individuals subjected to this condition.

Those exemptions which are granted to other judgment debtors in fact this isn't so.

The Court of Appeals decision specifically says that it isn't so.

It says these people are entitled to the same exemptions everybody else is.

I have set forth the statutory scheme in my brief and I think it shows that those exemptions are afforded in the same way they are afforded to every other judgment debtor.

So I would submit if that ground in James versus Strange was the full reason this Court felt constrained to strike that statute, then James versus Strange is just not the point at all in this legislation.

Now, I see from my notes that I have covered the other particular point that I wanted to mention to the Court.

Mr. Chief Justice, unless the Court has other questions I am done.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Do you have anything further Mr. Kuhn?

Rebuttal of J. Marvin Kuhn

Mr. J. Marvin Kuhn: Nothing further, Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.