Kirchberg v. Feenstra - Oral Argument

ORAL ARGUMENT OF ALAN F. SCHOENBERGER, ESQ., ON BEHALF OF THE APPELLANT

Chief Justice Burger: We'll hear arguments next in the case of Kirchberg v. Feenstra.

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

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

This case, entitled Kirchberg v. Feenstra, is a case that has gone back several years, and I would like to review some of the facts before proceeding into argument.

In 1974, Mr. Karl Jean Kirchberg, my client, decided to represent Harold Feenstra, based upon charges filed by Mrs. Feenstra against Mr. Feenstra on the basis of crimes against nature.

My client accepted a mortgage on the Feenstra household based upon the law existing at that time, Articles 2404 of the Louisiana Civil Code, and Articles 2334, read in pari materia.

Thereafter, Mr. Harold Feenstra did not pay the indebtedness owed to Mr. Kirchberg, and Mr. Kirchberg, proceeding by executory process, or as it's called in the civilian phraseology, the law of Louisiana, via executiva, which is a quick seizure and sale, proceeded in the lower courts of the State of Louisiana, the civil district court in the Parish of Orleans.

Unidentified Justice: This is the equivalent of a foreclosure in any other state, isn't it?

Mr. Schoenberger: Yes, sir.

Mrs. Feenstra's counsel filed for a temporary restraining order, what we call a TRO, and finally a permanent injunction.

And they claim, of course, that Mr. Kirchberg was engaging himself as a creditor and money lender under the Truth in Lending Act.

Mr. Kirchberg thereafter filed in United States District Court for the Eastern District of Louisiana, and the case was allotted to the Hon.

Judge Morey Sear, and at that time he prayed for a declaratory judgment that he had not violated the truth in lending Act, and that issue was later settled and compromised agreeable to all parties.

But Mrs. Feenstra, lo and behold, counterclaims.

In her counterclaim, she argues, or she claimed, that Article 2404, Louisiana head and master provision, is unconstitutional, is violative of the Fourteenth Amendment to the United States Constitution.

Now it is important to note that initially there was some discrepancy.

It would appear from the record that the original counterclaim was to Article 2334, was the article which was unconstitutional.

However, Judge Morey Sear evidently felt that the gravamen of the complaint was Article 2404, the head and master article.

Thereafter, in the United States District Court for the Eastern District, Mr. Kirchberg filed a motion for summary judgment, saying that there are no material issues of fact, that indeed he should be able to proceed via executiva, and he won by way of motion for summary judgment, and Honorable Judge Sear, looking at Louisiana law and looking toward this honorable Court's guidance in Labine v. Vincent held that the motion for summary judgment would be granted.

Thereafter, Joan Feenstra appealed to the Fifth Circuit Court of Appeals and in that decision the holding was that Article 2404 was unconstitutional, and the decision was reversed, but applied prospectively.

Unidentified Justice: To whom?

Do you think it applied to the parties, or not?

Mr. Schoenberger: We do not believe that it does, Your Honor, and this is part and parcel of the problem.

Having laid down this basic structure of where we are moving, let me--

Unidentified Justice: Well, if you didn't think it applied to you, why did you appeal?

Why did you come here at all if you didn't think that--

Mr. Schoenberger: --Your Honor, we are saying that if the decision applies it is purely prospectively.

Only under Linkletter does--

Unidentified Justice: --Well, does it apply to your client or doesn't it?

Mr. Schoenberger: --Your Honor, it says, reversed, applied prospectively, on the motion for summary judgment.

Unidentified Justice: You just told me you didn't think it applied to your client.

Mr. Schoenberger: Your Honor, this is part of the problem.

The mortgage, the underlying mortgage was executed and filed on October 22, 1974.

The 5th Circuit never said that the underlying mortgage is invalid.

It only said that Article 2404 is unconstitutional.

Unidentified Justice: Well, what is... so, you want to come up here to have us declare your mortgage invalid?

Mr. Schoenberger: No, no, Your Honor.

We are arguing that if this is applied purely prospectively, and looks to the future, then it cannot look to the past, and it cannot look to 1974, when Karl Jean Kirchberg relied upon the civil law as it existed at that time.

Unidentified Justice: But then there's no case or controversy, no live case or controversy, it's just purely a decision of an abstract proposition which doesn't have any effect on concrete rights of the parties.

Mr. Schoenberger: I... this--

Unidentified Justice: Why did you come here at all, if you didn't--

Mr. Schoenberger: --Well, Your Honor, this was one possibility, and I had to juggle with this problem--

Unidentified Justice: --I suppose one of your questions, if you want to ask back, is why did we ever grant it?

Mr. Schoenberger: --Well, Your Honor, it's... and the other way in which I have viewed this particular decision is that maybe it does apply to the parties on the motion for summary judgment, but since it looks prospectively, it does not apply to the mortgage as recorded in 1974, because... and this is the important point to note, we look at the 5th Circuit language, the very end of the opinion.

It says:

"We reverse. "

"We apply prospectively, because not to do so would create substantial hardship within the State of Louisiana. "

Unidentified Justice: But to say that it applies to the parties but not to the mortgage is really kind of a conundrum because the only controversy between the parties is with respect to the mortgage, isn't it?

Mr. Schoenberger: It is with respect to the mortgage, Your Honor, but the situation of the case is such that it moved up on a motion for summary judgment.

And indeed, if the 5th Circuit is making any sense... and indeed, Corpus Christi, also another opinion of the Supreme Court of the State of Louisiana, mentioned the substantial hardship.

It must mean that Mr. Kirchberg's mortgage is valid as of the date of October, 1974, because if it is not then we do have that substantial hardship, because the new law did not come into effect till January 1, 1980.

Unidentified Justice: What relief do you want here?

Mr. Schoenberger: We have six years.

Unidentified Justice: What relief do you want here?

Mr. Schoenberger: The relief that we would have this Court grant is that Article 2404 would be declared constitutional, and that Mr. Karl Jean Kirchberg could proceed via executiva to have the Feenstra home seized and sold.

This would be the relief that we would ask.

Unidentified Justice: You'd be just as happy, I suppose, if you had a ruling that whatever the Court of Appeals said didn't invalidate your mortgage?

Mr. Schoenberger: Yes, yes, Your Honor.

That would be the other way of proceeding through this.

Having--

Unidentified Justice: And if we read the Court of Appeals' decision as not invalidating your mortgage, you'd be very happy.

Mr. Schoenberger: --Yes, sir.

Unidentified Justice: But then, what controversy would the Court of Appeals have adjudicated within the--

--We would then dismiss the appeal, I suppose, as for want of jurisdiction.

Mr. Schoenberger: Well, the case or controversy would involve the motion for summary judgment between Mr. Kirchberg and Joan Paillot Feenstra as to the constitutionality of Article 2404.

I realize the difficulties, Your Honors, and I've thought about this in depth, and it is a problem, it is a problem, it's a serious problem.

And that is why we are here, and that is why I'm addressing the three issues before the Court.

Maybe what I would like to do is to proceed first with the issue of Article 2404 as it is.

And of course, beginning... of course we begin with the private law of Louisiana contained therein in the Civil Code of our state, in which Article 1 states clearly,

"Law is a solemn expression of legislative will. "

Of course, the law of stare decisis does not technically apply in Louisiana.

We look to our Legislature in determining in true civilian fashion as is done in Quebec and is applied in France as to what the law is.

We come to, Article 17 which states clearly,

"All laws are to be read in pari materia. "

When one particular provision of the Civil Code of Louisiana does not clearly enunciate the law or if it enunciates the law in a fashion which can be viewed as only leading to one principle, we look to the other Code articles which emanate from that particular system.

Article 2404.

Article 17 is the article applying to the in pari materia rule which is used by civilians in interpreting a law in our jurisdiction.

Unidentified Justice: Do you want us to apply that rule to our Constitution?

Mr. Schoenberger: Well, Your Honor, all I can say is the law would be what this honorable Court would say the law is.

Unidentified Justice: What the Constitution says it is.

Mr. Schoenberger: What the Constitution is and how this honorable Court would interpret the Constitution.

If we turn to Article 2404, we read that the husband is the head and master of the community.

He manages the community, he disposes of its assets.

We read this in pari materia with Article 2334 which as originally enacted in 1962... and this is the provision that we are looking at... stated that the husband could not alienate the community immovable property where the woman, the wife, had filed a declaration of homestead in the mortgage and conveyance office where the parish, where the property was situated.

2334 was then later amended in 1977 to state that community immovable property could not be alienated unless the wife filed a declaration stating to the effect that her consent was not required.

So we're looking at earlier article 2334, valid as of 1962, valid until January 1, 1977, and we're looking at Article 2404, and we are looking at this law and we're looking at October, 1977, when these events occurred.

And this is the system of law which is applied at this time.

In my brief, Your Honors, we have attempted to point out the unique circumstances of Louisiana law, We have pointed to the fact that Joan Paillot Feenstra had a remedy which was a very, very easy and a very simple remedy, filing the declaration of homestead.

The 5th Circuit Court of Appeals ignored that issue and immediately jumped to the fact that an antenuptial agreement could have been entered into between the parties before the marriage in which the parties would be separate in property or they would not have community property, or that the husband alone could not mortgage the household.

And they go into the point of transactional cause and the great expense of retaining an attorney before entering into marriage in Louisiana.

But the fact is that no attorney was ever needed.

The fact is that no antenuptial agreement was ever needed to remedy the situation.

We're not looking at $300, $400, $500, although I do not ask this Court to take judicial notice of the amount of attorney's fees.

All we are looking at is a simple declaration, a simple, simple, very inexpensive declaration in the notarial archives of Orleans Parish and the Custodian, of the Records stating to the effect that this community house cannot be alienated or mortgaged by my husband without my consent.

So we feel--

Unidentified Justice: Isn't your relief really one directed to the Court of Appeals for clarification of its judgment rather than here?

Mr. Schoenberger: --Well, Your Honor, we of course first address the issue of Article 2404, and that the third point I did ask, does the decision apply to my client and to Joan Paillot Feenstra in such a way as to allow my client to have the house seized and sold, or does it not mean that?

And my feeling was that that issue was subsumed within the issues that this Court would tell us what prospectivity means in this particular circumstance.

Unidentified Justice: Did you ask the 5th Circuit for clarification of its judgment?

Mr. Schoenberger: We did not, Your Honor.

We did not.

Unidentified Justice: So both of you come up here not knowing what the judgment means.

And this is the gist of the State of Louisiana's motion to dismiss, as I read it.

Mr. Schoenberger: That there is no case or controversy, Your Honor.

But clearly, there is a case or controversy because the mortgage stands in Orleans Parish and Mr. Kirchberg, due to the injunctions, cannot seize the house, and the house is encumbered.

So we stand in this dilemma of a house that's encumbered with a mortgage, without an order saying to the seneschal of the Parish Orleans, you are notified to seize this particular property, advertise it for sale, and to sell the property.

And we stand in this dilemma.

It's a dilemma that both parties face.

Unidentified Justice: Well, if you got together, you could sell it.

Mr. Schoenberger: Maybe so, Your Honor.

Unidentified Justice: Couldn't the Supreme Court of Louisiana solve all of that dilemma?

Mr. Schoenberger: The Supreme Court, Your Honor?

Unidentified Justice: Yes; of Louisiana, solve all of your dilemma?

Mr. Schoenberger: I don't--

Unidentified Justice: Don't you have any title-clearing cases down there?

Can't you clear title down there?

Clear the title?

Mr. Schoenberger: --Well, Your Honor, not in a situation such as this.

They would probably be looking to this Court's guidance, in terms of resolving the conflict.

Unidentified Justice: We would give them guidance in how to enforce their, own statutes?

Mr. Schoenberger: Well, Your Honor--

Unidentified Justice: We would give them guidance in how to clear up a case?

Mr. Schoenberger: --Well, Your Honor, if an order would proceed from this Court that Article 2404 is constitutional, then clearly the house can be seized and sold, if an order would proceed.

Unidentified Justice: That's what you want us to say?

Mr. Schoenberger: Yes, Your Honor, that article--

Unidentified Justice: I just wondered what you wanted us to do.

Mr. Schoenberger: --Well, that is the first issue in our statement of jurisdiction: is Article 2404 unconstitutional?

And we believe that it is not.

If we were looking at a formal antenuptial agreement, we could agree that the situation would be quite burdensome.

But considering the small amount of fees, of filing fees--

Unidentified Justice: Couldn't you... I'll put it this way, could you have just simply commenced your proceeding on the assumption that the 5th Circuit meant what it seemed to have said, that this was prospective only, and then let the state courts of Louisiana wrestle with that problem?

Mr. Schoenberger: --Yes, Your Honor, except that--

Unidentified Justice: What was there to prevent you from doing that after the 5th Circuit came down?

Mr. Schoenberger: --Well, I felt that since this case was in the federal system that it should more up appropriately through the federal system, Your Honor.

Unidentified Justice: You're asking us to clarify something that doesn't seem to be clear to you and that's what it amounts to, isn't it?

Mr. Schoenberger: Well, Your Honor, what we are saying--

Unidentified Justice: You come to us without knowing whether, what the Louisiana courts would have done or whether you could have proceeded with this foreclosure.

Mr. Schoenberger: --Well, with the injunction, Your Honor, no; that is part of the problem.

And we do not feel that the 5th Circuit opinion is clear, and that is why we appealed the case.

Unidentified Justice: Well, I would have thought the 5th Circuit had said that at least as between you and your opponent, the mortgage was invalid.

Mr. Schoenberger: But it did not say that.

Unidentified Justice: They decided the case.

And a federal, any federal court, including the Court of Appeals in this case, has to decide cases before it, one way or the other.

And it can't give advisory opinions, and it's the very fact it decided the case leads to the inference, I suppose, I would suppose, that my brother Rehnquist has suggested, doesn't it?

Mr. Schoenberger: Except, Your Honor, that according to Linkletter the federal courts can apply cases prospectively only, future prospectivity there is nothing--

Unidentified Justice: Even if we can do it prospectively only, Linkletter didn't say that.

But I think I know what you mean.

But in any event, a court always decides the case before it in favor of one party or the other, and there's no indication here that the court decided this case in your favor, is there?

Mr. Schoenberger: --There is no direct statement to the effect that the case was decided in our favor, and there is no statement to the effect that it was decided exactly in favor of Mrs. Feenstra.

There was no statement to the effect that the mortgage was invalid or that the mortgage--

Unidentified Justice: Well, it was either decided against you or it wasn't decided at all, wasn't it, in your case?

Mr. Schoenberger: --Unless, Your Honor, as I feel, that it was decided in our favor and looked toward the future from the date of December 12, 1979, on, and that the prior mortgage was valid, because if it were not valid then we would be in substantial chaos in Louisiana, because the law of the case could not apply to Mr. Kirchberg alone--

Unidentified Justice: Why not?

Mr. Schoenberger: --because that would be unfair.

Unidentified Justice: Why?

Mr. Schoenberger: Because if it applies to Mr. Kirchberg under McDuffy v. Weil, all mortgages in Louisiana are only valid from the date of recordation and filing, and therefore, if the law of the 5th Circuit is that Article... well, obviously, the 2404 is unconstitutional.

And if it applies to Mr. Kirchberg, it applies from 1974 or.

Unidentified Justice: Well, counsel, at least, however, you prevailed in the district court before Judge Sear?

Mr. Schoenberger: We did, Your Honor.

Unidentified Justice: And that was reversed?

Mr. Schoenberger: That was reversed.

Unidentified Justice: Does it follow that that's a decision against your client?

Mr. Schoenberger: It would follow, Your Honor, that it was a reversal of a motion for summary judgment.

And... but in terms of application, of that judgment, that is another problem.

And from what date, and in what circumstances would that apply, is again unknown.

If the 5th Circuit Court of Appeals had not said to apply this case would cause substantial hardship, if applied retrospectively, citing Cipriano v. City of Houma, the case involving the property bond voting restrictions to people who did not own property, then it would be much more clear.

Your Honor, we would--

Unidentified Justice: But the judge did cite that case.

Mr. Schoenberger: --He did cite the case.

He did cite the case, Your Honor, but then he said he would--

Unidentified Justice: She did, isn't it a she?

Mr. Schoenberger: --She; yes.

Your Honor, we will reserve the rest of the time for rebuttal.

Unidentified Justice: Before you sit down, counsel, the statement of jurisdiction, which was prepared by your client has what looks to me like a duplication of the 5th Circuit's opinion.

Mr. Schoenberger: Yes, sir.

Unidentified Justice: Is that a correct duplication or does one take precedence over the other?

Mr. Schoenberger: Your Honor, we received the original opinion and we duplicated that opinion, the slip decision, and then we proceeded to copy the further West opinion also.

So that there would be all decisions before the Court, because we want the Court to have all the relevant cases.

Unidentified Justice: Well, is there a distinction between the two opinions?

Mr. Schoenberger: There isn't, Your Honor, but we just felt that we should follow--

Unidentified Justice: Why did you include the memorandum?

Mr. Schoenberger: --Well, we--

Unidentified Justice: But the judgment of the Court of Appeals was a remand, wasn't it?

Mr. Schoenberger: --It just said--

Unidentified Justice: Reversed the proceedings.

Mr. Schoenberger: --Reversed, Your Honor.

Unidentified Justice: No, it said... it says,

"And we reverse and remand for further proceedings consistent with this opinion. "

Mr. Schoenberger: Okay.

Unidentified Justice: So on the remand, what would have happened?

If you hadn't have come here?

Mr. Schoenberger: We would probably have--

Unidentified Justice: Had trouble enforcing your mortgage, wouldn't you?

Mr. Schoenberger: --Well, no, Your Honor, but there would have been a controversy as to the enforcement of the mortgage, and I imagine we would have had to appeal through the federal system again, another time.

Okay.

Chief Justice Burger: Ms. Hausman-Smith.

ORAL ARGUMENT OF MS. BARBARA HAUSMAN-SMITH, ESQ., ON BEHALF OF THE APPELLEE

Mr. Hausman-Smith: Mr. Chief Justice, and may it please the Court:

Appellant Kirchberg in this case has apparently confused what is a very simple case before this Court, and that is whether Article 2404 is a denial of equal protection and whether the 5th Circuit lower court opinion should be applied to the parties litigant.

It was not until the appeal to this Court that the issue of whether Ms. Feenstra should be included in the holding of... an unconstitutional holding of the Article 24 has been raised, and it was raised by Mr. Kirchberg as an 11th hour attempt to save his mortgage.

At the court below, at the district court, the State of Louisiana and the Governor of Louisiana was included as a defendant in Ms. Feenstra's counterclaim.

They prepared a brief to the 5th Circuit on appeal which stated, if the 5th Circuit holds Article 2404 unconstitutional and if it applies its decision prospectively only, then Mrs. Feenstra would be the only person who would benefit from the holding of unconstitutionality.

Therefore, the State of Louisiana and Ms. Feenstra were in agreement at that point that a prospective-only ruling should include the parties before the Court.

Mr. Kirchberg--

Unidentified Justice: What do you mean, include them?

What would include them?

Mr. Hausman-Smith: --An unconstitutional holding that Article 2404 would apply to the parties litigant.

Unidentified Justice: But not to other--

Mr. Hausman-Smith: Exactly.

Unidentified Justice: --Other people who had made mortgages before?

Mr. Hausman-Smith: Exactly.

And at no time--

Unidentified Justice: Ms. Hausman-Smith, hasn't there always been kind of an uneasiness with the case in controversy requirement about this Court's retroactivity holdings, and prospective-only holdings?

You have to have a concrete case or controversy and yet you want to avoid undue hardship to people who have relied on preexisting law.

Mr. Hausman-Smith: --Absolutely, Your Honor.

That is correct.

And the 5th Circuit went to a great effort.

Half of its opinion was based on the fact that there was a case or controversy before them, and then to hold that the decision should not be applied to Ms. Feenstra would be absolute, an advisory opinion.

This is especially so since Article 2404 has been repealed and after January 1, 1980, does not, there is no longer head and master, in Louisiana and no such mortgages with just the husband's signature can be allowed to stand.

Therefore, any--

Unidentified Justice: Any of them, or those executed after 1980?

Mr. Hausman-Smith: --That is correct, Your Honor, those executed after 1980.

But in practicality, Ms. Feenstra is the only person with a home that stands to lose at this point.

Since 1977, January 1, 1977, the Louisiana Legislature amended Article 2334, under which a husband would be no longer able to mortgage without his wife's consent.

And therefore any mortgages signed after 1977 on property held in names of both spouses could not be mortgaged or alienated merely by the husband's signature only.

So, in practicality, this is not a problem.

There is no economic chaos in the State of Louisiana at this time because of an unconstitutional holding.

Unidentified Justice: But Louisiana is not the only state that operates under a community property system.

The other states that have community property systems are in other federal circuits, so that there... it's by no means a symmetrical result as if the 5th Circuit were the only court that were ever to pass on the constitutionality of this type of statute and declare it unconstitutional but prospective only.

Mr. Hausman-Smith: Your Honor, I agree with that, but there is in no sense a holding, or as Ms. Feenstra is seeking to have held, that the community property system is unconstitutional.

She is merely speaking about the head and master managerial powers over the community property, the real community property of parties.

And Louisiana is the only community property state that has such a provision in its legislation.

Unidentified Justice: Well, the law may have changed since I practised in Arizona but Arizona had a community property statute where the husband could alienate property on his own signature unless it was in fraud of the rights of the wife.

Mr. Hausman-Smith: My understanding is that Louisiana is at this point, was... in 1976 when this lawsuit was brought, was the only state with that kind of provision, but I certainly may be incorrect, Your Honor.

Unidentified Justice: Well, you may--

Mr. Hausman-Smith: I would like to point out that a holding, prospective-only holding in this case would also go against the holdings in prospective cases of the Louisiana Supreme Court.

The Louisiana Supreme Court in Corpus Christi Parish Credit Union v. Martin did not reach the constitutional issue but in a three-justice dissent they clearly said that Article 2404 had to be found constitutional, that it should be applied prospective only, because of the subsequent inequity that could result from a retroactive holding, but that of course the parties before them should be included in that.

Unidentified Justice: --Did you say that was a dissenting opinion?

Mr. Hausman-Smith: That was the three-justice dissent in Corpus Christi, Your Honor, and it is the only case law where the Louisiana Supreme Court has grappled with an unconstitutional holding of Article 2404 and come up with a solution as far as application to the parties, or retroactive application.

Unidentified Justice: So it's not a ruling of the Louisiana Supreme Court?

Mr. Hausman-Smith: That is correct.

But in Lake, Inc., v. Louisiana Power & Light, 330 So.2d 914, the Louisiana Supreme Court did hold, make a prospective-only decision and specifically included the parties before the case.

So they have spoken on prospective-only and have shown their intention to keep the parties before them.

Unidentified Justice: Of course they may not have the same case or controversy requirements that the federal judicial system has.

Mr. Hausman-Smith: Absolutely, and a case in controversy is at the basis of the appellee's claim that she has included in the 5th Circuit.

I would like to point out that in appellee's motion for affirmance before this Court, in the appeal before this Court, appellee pointed out that the 5th Circuit was empowered to decide whether its holding prospective-only applied to the parties litigant, and that it was not necessary for the appeal to come before this Court on that issue.

I'd also like to speak to a point made by Mr. Kirchberg's attorney that he relied on Article 2404 to his detriment.

There's nothing in the record to give evidence of his reliance.

He received a note signed by Mr. Feenstra in October, 1974, on a debt of $3,000, and five days later he returned to prison where Mr. Feenstra was and got him to sign the mortgage.

I'm sure Mr. Kirchberg was aware at this time there would be no way in which Mrs. Feenstra would agree to such a mortgage and therefore he was merely trying to cover his options.

There is no evidence that he was relying on it.

He also was an attorney and practicing for several years in domestic relations work, and he was in process of this kind of work at the time that Labine and Frontiero were decided, so he should have been aware of those holdings.

Furthermore, in practice, there are no other cases of this type pending, and no other mortgages known to be foreclosed in Louisiana.

The State of--

Unidentified Justice: How about the other community property states though that are in the 9th Circuit?

Mr. Hausman-Smith: --Well, as I stated before, I'm not aware of any, and I doubt that any could be, because I did not believe that they were able to have the husband alienating community property without the wife's consent, as Louisiana did.

Further, there's... the State of Louisiana was my opposing counsel below at the 5th Circuit; however, they chose not to appeal this decision.

And their conspicuous absence in this appeal would point to the fact that there is no reason to suspect that an unconstitutional holding, in particular to Mrs. Feenstra and the mortgage on her home, would cause chaos in the commercial transactions of Louisiana.

Obviously, the State of Louisiana has deemed its citizens secure and the Code secure, and has failed to join Mr. Kirchberg in his appeal.

In fact they had moved to dismiss on those grounds and they moved as appellees.

So they are, at this stage of the appeal, joint appellees.

Unidentified Justice: Actually, the State of Louisiana has moved to dismiss as moot, hasn't it?

Mr. Hausman-Smith: Yes, which was... well, they'd moved to dismiss as moot, but they also made much of... their motion was based on the fact that there wasn't a case or controversy below, and now they find that the repeal of the head and master statutes, Article 2404, in their opinion that was moot.

But, it was incorrectly so because any mortgage signed after January 1, 1980, would be affected, but not Mrs. Feenstra's mortgage, so there's definitely a live controversy, case in controversy before this Court--

But in their motion to dismiss they made a point that the 5th Circuit could reopen its mandate and determine what they meant by a prospective-only holding.

This Court has continually in Article III cases recognized the power of finding, making a decision prospective only, but in all times where an Article III case in controversy was presented the decision applied to the parties litigant, and I think this is agreed upon by the State of Louisiana.

As to Appellant Kirchberg's contention that there is no need to reach the issue of unconstitutionality because of Mrs. Feenstra's ability to file a declaration of homestead, this was a very serious burden imposed upon married women in Louisiana, and under the statute this declaration was only allowed to be made six months after the property was purchased by the wife.

The statute provided--

Unidentified Justice: Within the first six months or after the first six months?

Mr. Hausman-Smith: --After the first six months.

The first six months after the property was purchased the State of Louisiana left those six months for the husband to file a declaration of family homestead, but if he neglected to within those six months then they empowered the wife, so potentially a husband can mortgage the property without his wife's consent and the declaration would be useless to her if it was done within the first six months after purchase.

Unidentified Justice: How about an antenuptial agreement?

Mr. Hausman-Smith: An antenuptial agreement was possible under Louisiana law, but Appellee Feenstra would maintain that at all points that that was not, did not cure the burdens on her; that an antenuptial contract would have to be signed by both the parties, and a husband therefore would have to give up, be required to give up the power that Louisiana had given him under the head and master principle.

And this is... the wife would be seeking an antenuptial agreement under... it's definitely an unequal bargaining position.

Unidentified Justice: Well, if it's an antenuptial agreement, she can refuse to marry him, I suppose.

Mr. Hausman-Smith: I suppose; yes.

--But this declaration merely enhances and buttresses the fact that Mrs. Feenstra has been discriminated against and her rights of equal protection have been violated.

Under Louisiana law as it applied to her, the burdens were all on her to cure a basically unequal law, and in no sense, no matter what she did, would she ever be able to proceed in the power that her husband had under head and master, and that would be having total authority and managerial authority over the community property; no matter what she did would she be able to be in that... stand in that position.

Appellee seems to have not created her own predicament; the State of Louisiana has by choosing for her a system under which she has no managerial rights over her own property.

Article 2404 would force her to relinquish all of her contribution.

The basis of community property is that a husband and wife contribute equally to the marriage and therefore own jointly all the assets of that community.

Yet Article 2404 only gives the wife an imperfect ownership right in her own property and gives the husband a perfect right over the entire, her half and his half.

And it is not until the marriage is dissolved or his death that she would be able to sue for fraud or to gain her ownership rights if no fraud was committed or if the assets were not structured.

By the Louisiana system of choosing management by the husband alone, it is definitely calling for a different treatment of otherwise similarly situated married persons, and this different treatment is based on sex.

It is impossible to view the article in any other terms but a denial of her equal protection.

The opt-out provisions, the antenuptial contract, the declarations that were made, are all forms in which she the wife must, has the burden of correcting a definitely inequitable situation, yet the husband never has that burden.

The ability of Mrs. Feenstra to declare a family home was not made light by the 5th Circuit.

They merely pointed out that she would have an additional economic and legal burden and the transactional costs added to the wife and not being added to the husband was a denial of equal protection.

There is no declaration or contract under this Louisiana head-and-master system which could ever give the wife a favorable position of managerial control.

I would like to add that the power of the wife to renounce the community under Article 2410 which was presented as a balance to the head and master system is not a balance, that the Code was not balanced equally and it is balanced inequitably against the wife.

The wife had all the disadvantages and none of the advantages over her property.

Under Article 2410 the wife has the right to renounce at the dissolution of a marriage if her husband has run up debts that exceed the assets of the community.

Now, how such a article can be conceived to balance the head and master system against her is unbelievable to me.

Fortunately, this is also repealed and now, in Louisiana, there is a strong community property system, a healthy, live community property system, but without the discriminatory provisions.

The Louisiana Legislature in its wisdom has adopted a gender-neutral system where both husbands and wives manage equally their property and have avoided, and have chosen the least discriminatory manner possible of regulating marital property to the satisfaction of all parties.

And therefore there is really no reason to believe that a situation of havoc or that the Code has been harmed or is unhealthy situation at this point.

Unidentified Justice: What was your claim against the State of Louisiana?

Mr. Hausman-Smith: The State of Louisiana was enforcing by the mortgage an unconstitutional--

Unidentified Justice: So you asked that there be, that the provision be declared unconstitutional and the State be enjoined from enforcing it?

Mr. Hausman-Smith: --Yes.

And that the marriage be declared null and void.

Unidentified Justice: And what do you think is left of... you won your case, didn't you?

Mr. Hausman-Smith: Below in the 5th Circuit; yes.

Unidentified Justice: And what do you think... what relief against the State is left after its prospective ruling?

Mr. Hausman-Smith: There is really none at this time.

The State is in agreement, apparently by their failure to appeal the unconstitutional holding below that the State--

Unidentified Justice: I would say that, isn't your position that the State is enjoined from enforcing the provision with respect to your mortgage?

Mr. Hausman-Smith: --Absolutely.

Unidentified Justice: But it is not enjoined from enforcing the provision with respect to any other mortgage?

Mr. Hausman-Smith: Yes, with respect to any other mortgage signed--

Unidentified Justice: But these are just counterclaims you've filed.

The original action was by the appellant.

Mr. Hausman-Smith: --That is correct, Your Honor.

Unidentified Justice: Counsel, how about the second paragraph of what used to be Article 2404 where it describes the role of the husband in marriage, and where it says he can make no conveyance inter vivos by a gratuitous title of the immovables of the community?

That would sound to me not to fall within the proscription of the 5th Circuit's reasoning.

Mr. Hausman-Smith: Well, it might not, but fortunately that has all been solved by the repeal of that act as of January 1, 1980.

Unidentified Justice: But we still have the problem of the time between the handing down of the 5th Circuit's decision and the adoption of the new system on January 1.

Mr. Hausman-Smith: Yes, Your Honor.

Unidentified Justice: It's on page A42 of the statement of jurisdiction.

Mr. Hausman-Smith: That also includes movables too, and that is something that is totally out of the realm of what the 5th Circuit decision on articles... what they declared as unconstitutional.

So I suppose they declared the entire article unconstitutional.

Unidentified Justice: But actually, as to the immovables, the statute already proscribed them.

Mr. Hausman-Smith: That's true; so--

Unidentified Justice: And since January 1, 1980, under the then and now-existing statutes of Louisiana, a mortgage such as that involved in this case would have had to have been signed by a husband and wife, is that it?

Mr. Hausman-Smith: --Yes; a mortgage on property held in both their names, community property, or of property held in the name of one spouse would have to be signed by both parties.

In effect that--

Unidentified Justice: If the property had been acquired during the marriage?

Mr. Hausman-Smith: --Yes.

Community property; that only refers to community property.

I would like to point out one question that Justice Blackmun asked of my opposing counsel, and that was, why the 5th Circuit made two separate decisions that look exactly the same?

There is one footnote in the second decision that was added.

Their opinion was originally amended and that footnote concerned the decision of the Louisiana Supreme Court in Corpus Christi, and that's why it was the necessity of including both decisions in there.

They are not exactly the same.

I would like to conclude just on the idea that understanding the facts in this case are really understanding how the law discriminates against women in Louisiana.

And Mrs. Feenstra filed criminal charges against her husband to avoid his further molestation of her child.

She was merely protecting her family and her own daughter from her husband.

Unidentified Justice: What does that have to do with the issues here now?

Mr. Hausman-Smith: It has to do with it in the fact that it enhances the actual discrimination against her, because Mr. Kirchberg is asking that Louisiana enforce the mortgage under which she would lose her home for no other reason than her opposition to the party that's seeking the mortgage.

Those are legal fees performed by Mr. Kirchberg, that is the separation and the so-called representation in the criminal charges were in direct opposition to her interests, and yet she is the one that stands to lose from this.

Thank you.

Chief Justice Burger: Do you have anything further, Mr. Schoenberger?

You have a couple of minutes left.

Mr. Schoenberger: A few brief comments.

I would first like to say that in terms of my client's reliance upon the law, we would point out that Article 2404 was valid in 1974 and we would say there was no other law to rely upon, and he relied upon the law at that time, when these acts were executed.

We would also say that in terms of--

ORAL ARGUMENT OF ALAN F. SCHOENBERGER, ESQ., ON BEHALF OF THE APPELLANT -- REBUTTAL

Unidentified Justice: Well, the 5th Circuit acknowledged that, did they not?

Mr. Schoenberger: --Right, right.

But... yes.

And, Your Honor, we would also say that this decision would have effects potentially damaging.

A wife, under Kirchberg v. Feenstra, the 5th Circuit holding, could renounce payment on mortgages executed by the husband alone, so creditors under this holding would be prejudiced by the holding.

So we do have problems, and we do have the problem that the mortgage was executed in 1974 and if an order should proceed from this Court cancelling the inscription of the mortgage, the mortgage would have to be cancelled as it would relate back to the date of October, 1974, and therefore all the other mortgages similarly situated after October, 1974, would be affected by this holding.

Unidentified Justice: So, counsel, even in community property states which allow the husband to alienate on his own signature community property so long as it is not in fraud of the rights of the wife, this mortgage would fail, would it not?

I mean, certainly this is in fraud of the interests of the wife.

Mr. Schoenberger: Well, Your Honor, we did not feel that it was in fraud of the interest of the wife.

Chief Justice Burger: Thank you, counsel.

The case is submitted.