Transcript

IN THE SUPREME COURT OF THE UNITED STATES

IN RE ROBERT J. SNYDER, Petitioner

No. 84-310

April 16, 1985

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:09 o'clock a.m.

APPEARANCES:

DAVID L. PETERSON, ESQ., Bismarck, North Dakota; on behalf of the petitioner.

JOHN J. GREER, ESQ., Spencer, Iowa; on behalf of the U.S. Court of Appeals for the Eighth Circuit.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments next in re Robert J. Snyder.

Mr. Peterson, I think you may proceed whenever you are ready.

ORAL ARGUMENT OF DAVID L. PETERSON, ESQ., ON BEHALF OF THE PETITIONER

MR. PETERSON: Mr. Chief Justice, and may it please the Court, in March of 1983, Robert Snyder was appointed under the CJA Act to represent an indigent in a federal criminal case. This case was tried in May of that year, and in August of 1983, Robert Synder submitted a request for payment.

The District Judge approved that request for the most part, and it was then sent on to the Circuit Court of Appeals for final approval.

In September of that same year an administrative secretary of the Circuit Court sent a memorandum to the District Judge's office and asked that there be a detailed memorandum submitted to support payment beyond the $1,000 amount under the CJA Act.

QUESTION: When you refer to an administrative secretary, someone in the clerk's office or someone attached to a particular judge?

MR. PETERSON: Her title is administrative secretary for Judge Lay, the Chief Judge of the Circuit, Your Honor.

The memorandum from the administrative secretary was given to Judge Van Sickle, and she took the matter up with Mr. Snyder. Mr. Snyder then sent in additional records to the District Judge's secretary, which additional records included his computer printouts for his billing.

The administrative secretary of the Eighth Circuit, upon receiving that, made yet another request to the District Judge's secretary, returning the voucher, stating essentially in that memorandum that the information required under the Act was there but she didn't particularly prefer it in that form.

The Eighth Circuit secretary's request was again given to Mr. Snyder, and Mr. Synder discussed it with the District Judge's secretary. The secretary suggested that Mr. Snyder write a letter to her stating his concerns regarding his frustrations and the frustrations of a counsel in representing indigents and getting their compensation for that representation.

Mr. Synder wrote a letter to this District Judge's secretary on October 6th of 1983, which letter has brought us to this Court today. The content of that letter I believe is important enough for me to read it. It is not very long, and it stated:

"I am in receipt of the letter of September 26th, 1983, from the Eighth Circuit Court of Appeals in which our latest attempt to justify our time and expenses for Dennis Warren again have been sent back.

"This letter is for the purpose of responding to that letter.

"In the first place, I am appalled by the amount of money which the Federal Court pays for indigent criminal defense work. The reason that so few attorneys in Bismarck accept this work is for that exact reason. We have up to this point still accepted the indigent appointments because of a duty to our profession and the fact that nobody else will do it.

"Now, however, not only are we paid an amount of money which does not even cover our overhead, but we have to go through extreme gymnastics even to receive the puny amounts which the federal courts authorize for this work.

"We have sent you everything we have concerning our representation, and I am not sending you anything else. You can take it or leave it.

"Further, I am extremely disgusted by the treatment of us by the Eighth Circuit in this case, and you are instructed to remove my name from the list of attorneys who will accept criminal indigent defense work. I have simply had it.

"Thank you for your time and attention. Very truly yours."

QUESTION: Mr. Peterson, would you think that that same message could have been communicated in more respectful, diplomatic terms?

MR. PETERSON: There is no doubt, Your Honor, that different authors attempting to put across the same point could have said it in a more diplomatic fashion.

The District Court's secretary discussed this letter with Mr. Synder, and then the District Judge discussed the letter with Mr. Snyder. The District Judge, after that discussion with Mr. Snyder, directed his secretary to send that letter on to the Eighth Circuit Court of Appeals.

The District Judge has stated, and it is in the record in this case, and I quote, "I did not view the letter as one of disrespect for the court, but rather one of a somewhat frustrated lawyer hoping that his comments might be viewed as a basis for some change in the process."

The Circuit Court, however, obviously viewed the letter differently, and the Chief Judge wrote to the District Judge stating that he questioned whether or not Mr. Synder was worthy of practicing law in the federal courts on any matter, and indicated that he was going to issue an order to show cause as to why Mr. Snyder should not be suspended from practice for a one-year period.

The Chief Judge then approved the fee request to the extent of the $1,000 statutory limit, and returned it to the District Court office.

In addition, the Chief Judge wrote another letter to the District Court stating that if Mr. Synder would apologize to the court for his disrespectful remarks, and that he would in the future comply with the CJA Act and the guidelines, that the Chief Judge would then recommend that a show cause order not be issued by the Eighth Circuit and become a matter of public record.

The District Judge talked to Mr. Snyder at that point and wrote to the Chief Judge after that conversation advising the Chief Judge that Mr. Snyder saw his letter as an expression of honest opinion and an exercise of his right of freedom of speech, and that he has decided not to apologize.

A show cause order was then issued directing Mr. Snyder to show cause why he should not be suspended from practice, and I quote, "for such period of time as his refusal to serve continues."

Mr. Snyder responded, pointing out that the Criminal Justice Act plan in effect in North Dakota at that time which had been approved by the Eighth Circuit Court of Appeals in the 1960's was indeed and in fact a voluntary plan.

In other words, it specifically stated that only those lawyers that agreed to serve had to serve. He further pointed out that he had absolutely nothing but the greatest respect for the federal courts.

A hearing was had before the Circuit panel, and that panel consisted of the Chief Judge and two other judges of that court. Even though Mr. Snyder did make a request that the hearing be an en banc hearing, and further requested that the Chief Judge recuse himself, both of those requests were denied.

At the hearing, the Circuit Court soon recognized that the CJA plan in North Dakota was indeed and in fact a voluntary plan. And when that occurred, they then turned to the issue of the tone of the letter. Judge Arnold specifically at the hearing requested of Mr. Snyder whether or not he was indeed at that point going to apologize for the tone of the letter.

Mr. Snyder declined, indicating that that was not the reason stated in the show cause order for his appearance before the court, that he had been asked previously by Chief Judge Lay to apologize and had respectfully declined.

QUESTION: Mr. Peterson, was it clear at this stage that the Court of Appeals was relying on the Federal Rule of Appellate Procedure 46(c)?

MR. PETERSON: Forty-six had not been included in the order to show cause, Your Honor.

QUESTION: If 46 is not it, what did the Court of Appeals suggest was the authority under which it was acting?

MR. PETERSON: In reading the order to show cause, they cited a case, Justice Rehnquist, which related to the fact that they had in a previous case indicated that counsel had a duty to serve on indigent cases, and that was basically the essence of the order to show cause, that you have somehow violated your duty by wanting your name taken off this list of persons who represent indigent counsel.

QUESTION: I would think if you violate your duty that might well be a basis for the Court of Appeals to take some action against you, but you would still want to know what was the basis that the Court of Appeals thought empowered it to suspend or to discipline?

MR. PETERSON: I can only refer you, Justice Rehnquist, to the order to show cause which specifically told him to show cause why he should not be suspended for refusing to continue to serve indigents.

QUESTION: And you take the view that that was the sole issue before the court at that time?

MR. PETERSON: That is our position, Your Honor.

QUESTION: Well, then, how does Judge Arnold's phrase come in, which is where you were in your argument when you were interrupted?

MR. PETERSON: Justice Marshall, Judge Arnold, after the return and Mr. Snyder's oral appearance at the panel hearing that day specifically pointed out that under the North Dakota plan it was a voluntary situation.

That is when Judge Arnold then, and the transcript is in the appendix, he said, then, I want to turn to this letter, and the tone of the letter that was written to Judge Van Sickle's secretary on October 6th.

And from that point forward until today, Your Honor, this case has been a free speech case, notwithstanding the fact that the Eighth Circuit in their response in this case have tried to remove it from a First Amendment case and into the area of conduct rather than speech.

QUESTION: Well, Mr. Peterson, before you get to the First Amendment in a case like this, there is ordinarily a presumption that people, Congress, this Court, the Judicial Conference, when they promulgate rules that authorize suspension are aware of the First Amendment, and that you may not have to get to any constitutional question. Perhaps it is just a question of interpreting the rules.

MR. PETERSON: Your Honor, that very well may be true, and I think that the Court -- this Court in the Sawyer case specifically declined to get to the First Amendment and reversed a lower court's opinion suspending a lawyer who I would submit the record in that case indicates that her conduct was far more egregious than what is in this case.

QUESTION: But that was a state -- wasn't that a state proceeding in Sawyer, or was that a federal proceeding?

MR. PETERSON: That was a state proceeding out of the State of Hawaii.

QUESTION: You would have to get to the First Amendment, I think, to reverse a state proceeding because you can't do it on a statutory or rule basis. The states are the final arbiters of how their rules are interpreted. But here you are in the federal system, and certainly this Court can speak with some authority on the meaning of the Federal Rules of Appellate Procedure.

MR. PETERSON: That is indeed correct, Justice Rehnquist, and I agree that this Court could reverse what has occurred to Mr. Snyder without reaching the constitutional issues that we have addressed in our brief and are attempting to address in this argument.

QUESTION: You are mainly doing it on the due process, on the notice aspect?

MR. PETERSON: Well, I think under the supervisory powers of this court even over the lower courts, the Courts of Appeals and the Federal District Courts.

QUESTION: Then you would be going to the merits, not to the procedure.

MR. PETERSON: That's correct.

QUESTION: Remarkably, your brief as I read it really just starts right in talking about the constitutional issues, the arguments, First Amendment, due process, and as is so often the case, nobody stops to ask whether there is some other non-constitutional ground which might dispose of the case.

Are you going to argue any non-constitutional ground, or do you just rely entirely on the Constitution?

MR. PETERSON: Well, Your Honor, our --

QUESTION: If there were no constitution, would you think this discipline was entirely appropriate? Is that your position?

MR. PETERSON: Absolutely not, Your Honor.

QUESTION: But you don't make the argument.

MR. PETERSON: We believe that the First Amendment concept is certainly --

QUESTION: Your client is really interested in having a First Amendment case made out of this incident, isn't he?

MR. PETERSON: Well, my client is most interested, Your Honor, in having what he believes is an injustice to him reversed, and as I have indicated in my response to Justice Rehnguist, I think that the Court could do that without even getting to the First Amendment issue.

QUESTION: All the lawyers on this brief, a whole flock of them, none of them thought to make a nonconstitutional argument in this case.

MR. PETERSON: Well, Your Honor, I don't agree that none of us thought we couldn't make a non-constitutional argument.

Our considered opinion was based not only on what had occurred in this case, but input we have had through the amicus and so forth that this issue regarding First Amendment rights and lawyers' speech in relationship to the courts is one that needs to have some direction, and hopefully from this Court.

QUESTION: Well, Mr. Peterson, if you were going to make a non-constitutional argument, what would you rest it on?

MR. PETERSON: The non-constitutional argument, Justice O'Connor, would rest upon the basis that simply the facts of this case do not warrant the extreme sanction which was given Mr. Snyder, which was the suspension of his right to practice in the court.

And it is interesting to note that it was not just a term suspension, that he would automatically be reinstated, but that he had to reapply, and we can only surmise that upon reapplying the request would have been, will you now apologize?

QUESTION: Would your approach in response to Justice O'Connor's question be something in the nature of confession and avoidance in the sense that it may have been an unwise, even a foolish letter, but it was not a contemptuous or disrespectful letter?

MR. PETERSON: That may be a fair characterization, Mr. Chief Justice. Our problem is, the Eighth Circuit has indicated, apparently, that a disrespectful letter, whatever that is, is grounds for suspension, and that is simply such a vague basis, and it is clearly demonstrated by virtue of the fact that the District Judge to whom -- to whose secretary this letter was initially written has said in an affidavit which is in the record that he didn't find this disrespectful, but the Eighth Circuit says that it was.

And because they are a higher court, Mr. Snyder finds himself suspended from practice not only in the Eighth Circuit but also in Ms. Van Sickle's court.

QUESTION: Has that order been stayed, by the way.

MR. PETERSON: It has, Your Honor, by Justice Blackmun.

QUESTION: Well, I suppose even if you are arguing a non-constitutional basis under Rule 46, that how you construe and apply that rule might be considerably affected by the fact that there are First Amendment concerns in the wings, and that you should avoid some constitutional issue.

MR. PETERSON: There is no question, Justice White, in our mind, at least, that under Rule 46, the federal courts have the power to discipline lawyers. Our concern is that if that power is going to be exercised, there needs to be some kind of guideline so that the lawyer and the court both know and can apply to a given factual situation --

QUESTION: Certainly a guideline that would avoid First Amendment constitutional issues.

MR. PETERSON: That is correct, Justice Blackmun.

We believe that the circuit decisions which are also a part of the record clearly indicate that in those opinions, Mr. Snyder was suspended because of his -- the so-called disrespect indicated in his letter, and for his refusal to apologize for what the Eighth Circuit determined was disrespect.

The Eighth Circuit contends, as I understand their argument, that he was not suspended for that, but indeed he in fact was suspended for failure to comply with the CJA guidelines.

QUESTION: When he concluded his letter "take it or leave it," do you suggest that was a respectful way to address the judicial branch of the government?

MR. PETERSON: Well, Your Honor --

QUESTION: I am talking about the terms now, not the substance, the language.

MR. PETERSON: Certainly again I must confess that it could have been put in less stringent terms, but I don't think that that lessens the fact that he had the right to say what he did. I further believe that there is a question as to whether or not it was indeed directed to the court.

It was directed at the request of the secretary. She said write me a letter about your concerns, and she has so stated, and the affidavit is in the record.

QUESTION: And you say he was addressing the system and not the judge, that is, the system of appointment of counsel? Somewhere in your brief I get that --

MR. PETERSON: That is correct, Mr. Chief Justice.

QUESTION: One thing that came out of his letter was a change in the system.

MR. PETERSON: That is exactly right, Justice White. As a matter of fact, the opinion clearly indicates that the Eighth Circuit determined after reviewing the plan that that plan needed some revision, and they directed the Judicial Council and the District Court to in cooperation with the bar associations attempt to revise the plan.

So, I think that one might query as to whether or not had Mr. Snyder said everything very respectfully, it may not have even gotten to the point where anyone would have paid any attention to it, and so perhaps if he had not used the strident language, the deficiencies in the plan might not have been discovered, and the attempt to revise and reinstitute that plan would not have occurred.

QUESTION: Here is a difficult question. Perhaps you aren't qualified to answer it. But do you think it is possible that if he was addressing that letter to the Chief Judge of the Court rather than to in effect a clerk or a staff member, he might have had a different tone to the letter?

MR. PETERSON: I cannot answer that question, Mr. Chief Justice.

QUESTION: One would ordinarily be a little more careful addressing a letter "Dear Chief Judge Lay" rather than "Dear Ms. Perkins" or whatever.

MR. PETERSON: He certainly would, Your Honor.

The position of the petitioner in this case is that the suspension of Robert Snyder for writing what has been adjudged by the Eighth Circuit to be a disrespectful letter to a Federal District Judge's secretary does present this Court with an issue critical to the legal profession.

The critical issue is whether or not the First Amendment applies to the legal profession, and if it does, what standard shall be applied in evaluating the contents of the attorney's statement.

QUESTION: May I ask one question, Mr. Peterson? Should we assume for purposes of this issue that the letter was or was not disrespectful?

MR. PETERSON: Well, Your Honor, our position is that the --

QUESTION: You claim a First Amendment right to write disrespectful letters to judges?

MR. PETERSON: Yes, Your Honor.

QUESTION: You do. So then we will assume it is a disrespectful letter for the purpose of this argument.

MR. PETERSON: I think that the Court can assume that it is a disrespectful letter, and based upon the First Amendment rights that individuals have, that whether or not it is -- that the term "disrespectful" is so vague that it cannot survive the First Amendment scrutiny.

QUESTION: Well, I must say, though, whether it is vague or not, there will be an awful lot of language that there wouldn't be any doubt about that it is disrespectful, and there may be some arguments on the fringe, but I would suppose you would just assume in this case that this was a disrespectful letter, and say that nevertheless, as you have said, he may not be suspended for that.

MR. PETERSON: That is correct, Your Honor, and our concern is that because at least in the Eighth Circuit, in the Circuit Courts that Mr. Snyder has practiced and Mr. Hill and I practice, we now have a standard at the Eighth Circuit level that if we write a letter that is disrespectful, whatever that is --

QUESTION: Or say anything disrespectful.

MR. PETERSON: Or say anything disrespectful, we stand to be suspended from our right to practice law.

QUESTION: Rule 46(c) doesn't even use the word "disrespectful. " It uses the term "conduct unbecoming a member of the bar."

MR. PETERSON: That is correct, Justice Brennan.

QUESTION: So disrespectful is something, it is just almost a word floating around in the air, so far as I can see. It is not anchored to any provision of the rules under which the Court of Appeals acted.

MR. PETERSON: That is correct, Your Honor.

QUESTION: Would you take the position that this was "disrespectful" if it was addressed to anybody other than a judge? If he had written this to his law partner, would it have been disrespectful?

MR. PETERSON: I don't know what disrespectful is, Your Honor.

QUESTION: That is exactly where I am, and I was trying to get some help.

QUESTION: If you had a circuit executive -- you do not have a circuit executive in the Eighth Circuit?

MR. PETERSON: I believe that there is an administrative circuit executive, Your Honor.

QUESTION: If he had addressed this to the circuit executive instead of to the administrative secretary, what would you say about that letter?

MR. PETERSON: Well, one of the issues, and this Court has addressed it in cases not related to the legal profession, and they have set up the clear and present danger standard, and it sets up a series of questions --

QUESTION: Now you are on First Amendment again. I am talking about the ordinary communication between lawyers. A lawyer in this courtroom at that lectern might conduct himself in such a way with his tone of voice and his manner that he would be swiftly dealt with in contempt terms. I am sure you acknowledge that.

MR. PETERSON: That is exactly correct, Your Honor.

QUESTION: So that the First Amendment doesn't mean the same at that lectern or in addressing judges as it means out on the street.

MR. PETERSON: That's correct.

QUESTION: You agree with that?

MR. PETERSON: I do. In this case, that is another issue, because was this letter -- is this letter to be treated as one addressed to the court, or -- and if addressed to the court, if that is the way it is treated, then I think there needs to be a distinction made as to whether or not Judge Lay and his administrative secretary were indeed performing a judicial function at that time or were performing an administrative function.

And our position is that at that time, with respect to the processing of that voucher, the performance of those duties related to an administrative function, and therefore the argument by the circuit that somehow he has impeded the administration of justice simply must fail on the facts of this case, again without addressing the issue of the First Amendment.

QUESTION: Well, Mr. Peterson, if the same remarks had been made orally in open court directly to the judge, would you think that you would be taking that same position? In the presence of other people, in open court.

MR. PETERSON: Justice O'Connor, the remarks in the letter do not offend my sensibilities. They may well have and apparently did offend the sensibilities of the Eighth Circuit panel. And my position would be that if those same remarks were made within the courtroom, that that still would not serve as a basis for suspension of the individual's right to practice.

QUESTION: You don't think then that there is any difference between the standards the court could properly apply when you are talking about a communication between a member of the legal profession, a lawyer, and the judge, and the standards that would apply in a courtroom where a lawyer is addressing a judge, where there are a number of people present.

MR. PETERSON: There are -- certainly, Justice Rehnquist, if there are comments made to the court in the presence of others in a judicial proceeding of an obscene nature, something much more egregious than what is in this case, I would agree that the court could certainly take action under Rule 46 or their powers of control of the courtroom and put that lawyer in his place, so to speak, but I do not think that the language in this particular letter is of such egregious nature that that could or should be done.

QUESTION: You wouldn't think, I don't suppose, that if the District Judge had actually ordered him to represent a person, and had it done so in open court, the court could -- that he could say, I refuse to obey your order because this is a lousy system, take it or leave it.

MR. PETERSON: That is different, Your Honor, because now we are talking about an order.

QUESTION: All right. So he couldn't have said what he said in the courtroom if the judge had ordered him to --

MR. PETERSON: If the judge had issued an order and said, you will represent John Jones in this case, he has to do that. Yes, Your Honor.

QUESTION: And it wasn't an order that he disobeyed, I take it. It was just a request from a clerk?

MR. PETERSON: It was just a request from an administrative secretary to send me some more information, which she conceded she already had but it was not in the form she wanted.

QUESTION: If the letter had come from a judge --

MR. PETERSON: It would still -- if it was exactly the same language, it was still a request and not an order.

Thank you.

CHIEF JUSTICE BURGER: Very well.

Mr. Greer.

ORAL ARGUMENT OF JOHN J. GREER, ESQ., ON BEHALF OF THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

MR. GREER: Mr. Justice, and may it please the Court, we do not believe that this is a First Amendment case. If certiorari has been granted predicated upon a contrary view, we may be wasting your time.

In this day and age, people seem to do or not do or say anything. Not so a lawyer. The practice of law carries with it a clear obligation to comply respectfully at all times.

All this Court did was seek to get compliance with the CJA from this young man. That is it in its entirety.

QUESTION: How do you square that, Mr. Greer, with the request for the apology? The administration of the Criminal Justice Act is one thing. We probably wouldn't have much disagreement among any of us the importance of it, the importance of counsel being appointed.

But I get from this record that the order to show cause was not addressed so much to the system as to the content of the letter, apart from the refusal to serve.

MR. GREER: Mr. Chief Justice, I think I have to respond to that in this fashion. The whole matter starts with the SGA -- or the CJA. Here, he accepted this obligation to defend this man, and as a part of it he had to present his statement.

If the court will take the time to look at that original Form 20, it will determine quickly that it is at a figure entirely different from the second submission, the so-called computer sheets.

Now, the variance between the two figures, $1,895 and $1,696, may be insignificant, but the fact is that the Chief Judge of this Court, the Eighth Circuit, has to administer this Act. All of the Federal Courts, as we understand it, have to administer the CJA.

I think some 2,000 people are appointed every year in the Eighth Circuit to carry out this work. In the 17 years, this is the first time that such a situation has arisen.

Here, this young man, the petitioner, did not comply with the Act because he did not verify his statement, and he did not present it in acceptable form, and he said that his reasons for that were, as his note in the margin states, that it is a computer problem.

Then later he said at the hearing, well, if there is a $200 difference, you could pay it. He also said at the hearing we would not forward the detail about our telephone bill because that is privileged information.

The Court has to decide how this money will be spent, and he has to decide it just like any other Chief Judge. He has to depend upon the people who do the work for him. This failure to file these claims in the manner that is required has cost unnecessary time, countless thousands of --

QUESTION: Well, Mr. Greer, I understood, and maybe incorrectly, that Mr. Snyder has now agreed to comply with all the CJA requirements.

MR. GREER: We do not agree that he has, Justice O'Connor.

QUESTION: You say he has not made that agreement.

MR. GREER: We say that his letter, and if the Court will examine that letter, his letter is a conditional acquiescence. If the rule is changed he will comply. That is what we got. And we also got --

QUESTION: And has the rule been changed?

MR. GREER: The rule has been changed by reason of the Judicial Conference action. Yes, Your Honor.

QUESTION: And so presumably his condition is met, and he would be willing to comply?

MR. GREER: In the future, we don't know, of course.

QUESTION: But that was the assurance that he made in any event.

MR. GREER: The only assurance that the court got really is the conditional assurance, but that was --

QUESTION: Is it correct that the suspension was made because of Mr. Snyder's refusal to apologize for the tone of his letter?

MR. GREER: I do not believe so, Justice O'Connor. I believe the suspension came about by reason of the totality of these events, starting with the absolute refusal to present the account in the manner in which it should be presented, and we call attention of the Court back to 1981. This man, the petitioner, had a letter perfect claim, down to $1.46 for a phone call to Cannonball, North Dakota. So he knew how this was to be done. He simply --

QUESTION: Mr. Greer, wouldn't one way to handle that be not to pay him?

MR. GREER: One way to handle it would be not to pay it, Justice Marshall, without question, and, of course, a substantial part has not been paid.

QUESTION: Mr. Greer, supposing he in every polite language said I just am too busy to fill out all these forms, and I told you what my estimate of hours was, and if you won't pay me, I won't do any more CJA work, and you just pay me what you think I am entitled to, and that is is.

Could he have been suspended for that? You could refuse to pay him, but do you think that there is power for -- I mean do you think it is appropriate judicial action for the Eighth Circuit to suspend a lawyer for taking that position?

MR. GREER: If that were the only fact, I would not say --

QUESTION: But isn't that the only fact in the rule to show cause? What in the rule to show cause justified suspension?

MR. GREER: In the rule to show cause he was charged, of course, with two things, failing to agree, in essence, to comply with the CJA --

QUESTION: I would suggest that he could do that in a very polite, mild way.

MR. GREER: Pardon me?

QUESTION: And he could have done that in a very polite, mild way.

MR. GREER: And failing to comply with the requirements of the CJA.

QUESTION: Which is really the same thing.

MR. GREER: Well, except for the detail, Your Honor. The administrative detail.

QUESTION: Then the Court's remedy is, as has been suggested, not pay the voucher. That has happened in every circuit in this country today because of the frustration of both lawyers and judges in trying to deal with this difficult problem.

MR. GREER: But in this instance, because of the letter, and because of the failure to file the claim as was required, and because of the knowledge that the court had that this was a deliberate matter, it did not remove the onus of all of those factors.

QUESTION: Mr. Greer, are you in agreement that the Court of Appeals was proceeding under Rule 46 of the Federal Rules of Appellate Procedure?

MR. GREER: I think the Eighth Circuit had to be proceeding under 46.

QUESTION: And 46(c)?

MR. GREER: And 46(c).

QUESTION: So the Court of Appeals to sustain its action has to show that petitioner's conduct was conduct unbecoming a member of the bar?

MR. GREER: Yes, Your Honor.

QUESTION: Suppose we don't wholly agree with you, and suppose we think that the Court of Appeals did suspend this man for having written a disrespectful letter and having refused to apologize. Let's just -- we think that is what the court did.

What is your reaction?

MR. GREER: My reaction to that is that this Court would be substituting a different standard, because all of the --

QUESTION: We have to -- we have to decide some things here. Suppose we read the record, and we think the Court of Appeals suspended him for being disrespectful. Do you think that is proper under the rule or under the Constitution?

MR. GREER: I think it was in this instance, Your Honor. I think that he knew where he was and why he was there, and --

QUESTION: Well, just wholly aside from the due process issue, let's assume he had plenty of notice. Suppose he had issue a rule to show cause and said, tell us why you shouldn't be suspended for being disrespectful, and he came and said, I am not going to apologize, I just have a right to be disrespectful, and they suspended him.

Is that consistent with the rule and the Constitution?

MR. GREER: Well, Your Honor, I think this. I think that he was there. They had to have some redress. Some way courts have to have orderly progress with every phase of court action, administrative as well as judicial. That is what I think is required here.

QUESTION: Mr. Greer, if this man had said in the courtroom what he said in that letter, and had the tone that one could reasonably draw from the letter, then we would have a more difficult assignment here, because we had not heard him, and we had not seen his facial expression, or the people in the courtroom had not, but here it is all written. We have everything that the Court of Appeals had, do we not?

MR. GREER: Yes, Your Honor.

QUESTION: Would you concede that we are in as good a position to make the judgment as the Court of Appeals was capable of making it?

MR. GREER: I think this Court is in as good a position as the Court of Appeals, because I think if the Court examines the total record, the Court will see the actual conduct of the petitioner.

QUESTION: I did not find in the record any -- maybe I have missed something, any concession by him that his conduct was disrespectful. I get the impression that he was stating the facts, but not that he was admitting to any disrespectful utterance.

MR. GREER: Well, my answer to that, Your Honor, is this, that his utterances, I guess, can be categorized by him, but the view of the three judges, Judge Arnold, Judge Haney, and Judge Lay, was to the effect that unless they had some further assurance from him with respect to compliance, they had to take some action.

Here, this Court literally begged this man, I think, five times to just say that he would comply with the CJA.

QUESTION: Well, I thought, reading the colloquy with Judge Arnold, I thought Judge Arnold's insistence was that he apologize, not that he comply with the CJA.

MR. GREER: Judge Arnold suggested --

QUESTION: Did his colleagues on the panel -- were they not also insistent that he apologize?

MR. GREER: It was a condition --

QUESTION: It had nothing to do with the CJA. It was to apologize for having written the letter, wasn't it?

QUESTION: Or for both.

MR. GREER: Well, or apologize for the continued refusal to comply with the Act, Justice Brennan.

QUESTION: That is not the way I read the colloquy, with all respect.

MR. GREER: The standard, as I think we have observed it in the Eighth Circuit, is that people who are practicing law there do not use it as a forum to criticize the Congressional mandate or the court, although we know that tat is permissible, and it can be done, it is done.

QUESTION: You say don't use it as a forum, meaning don't use the Court of Appeals as a forum?

MR. GREER: Right.

QUESTION: But this whole thing was initiated by a request from the administrative secretary. I mean, Mr. Snyder wasn't simply volunteering his views of the whole situation without any request whatever.

MR. GREER: The request, Justice Rehnquist, from the secretary was a request to comply with the provisions of the Criminal Justice Act so that it could be legitimately processed. That's what I understand.

QUESTION: You say that you couldn't use the Court of Appeals for a forum. You would feel it is entirely proper for Mr. Snyder to have written this same language to a local newspaper.

MR. GREER: I think he would have a right to do that, I guess, if he wished.

QUESTION: Why is it any worse to do it the way he did it, to address it to a third party with the knowledge it would come to the attention of the Chief Judge?

MR. GREER: I don't know that it is any worse in that sense, Your Honor, but I know that by reason of the letter, and he acknowledges this in his brief and in his argument, had he apologized for the letter at the outset, nothing further would have happened.

QUESTION: Yes, but his position was, he had nothing to apologize for.

MR. GREER: Or had he performed by completing those Form 20's correctly and said that he would represent indigent criminals without reservation, there would not have been any reason for censure.

QUESTION: Does the law compel him to represent them?

MR. GREER: I think, Your Honor, that the Eighth Circuit had assumed that all lawyers when given the responsibility of defending an indigent would be required for the indigent at the instance of the court.

QUESTION: Mr. Greer, the panel of the Eight Circuit Court of Appeals found that the petitioner was disrespectful and contemptuous. What exactly in your opinion constituted the disrespect and the contempt?

The letter was written to a secretary about an administrative matter. Did that constitute contempt or disrespect?

MR. GREER: Well, we have treated the letter, Justice Powell, as being, although processed again through the secretarial --

QUESTION: Let's take it step by step. Was the letter to the secretary complaining about an administrative, not a judicial matter, contemptuous or disrespectful?

MR. GREER: I think it was disrespectful.

QUESTION: Disrespectful. The letter was not made public.

MR. GREER: That is true.

QUESTION: So you would say that the letter itself was disrespectful and contemptuous also?

MR. GREER: I think it became contemptuous when there was no way that the court could rationalize or bring the petitioner to the point of compliance.

QUESTION: Well, in the end, the -- was voluntary. Apparently the court was unaware of that.

MR. GREER: That is true.

QUESTION: And most of the lawyers in the state, a large percentage of them never complied with it.

MR. GREER: Most of the lawyers, as I understand it, in North Dakota were not requested by reason of the Act, but almost all, since we have been lawyers, at any request from a federal court would have represented the indigent without one.

QUESTION: Mr. Greer -- are you through?

QUESTION: Yes, I am through. I just find it a little difficult to identify the contempt --

QUESTION: I wish I could get some help on that. What words were "disrespectful?"

MR. GREER: The words in the letter "Take it or leave it," "I have had it up to here," "puny fees."

QUESTION: But, Mr. Greer, both Ms. Monteith and Judge Van Sickle in separate affidavits said -- the two recipients of the letter each said he or she did not regard it as disrespectful. Isn't that rather persuasive against --

QUESTION: It might have applied to the money. He didn't say, I think that the judge is, did he? And you say out in the Eighth Circuit the judges and lawyers don't talk about judges. They don't criticize me. You are telling me that in the Court of Appeals you never heard a judge talk about a District Judge?

MR. GREER: Justice Marshall, I know that lawyers can criticize courts and not be disrespectful.

QUESTION: I have trouble with the disrespectful part. Who else could you say that to and be disrespectful other than a judge? Could you tell the governor, I have had it? Would that be disrespectful?

MR. GREER: I think it could be disrespectful, Justice Marshall.

QUESTION: To the judge? To the government?

QUESTION: But there would be no remedy.

MR. GREER: The only remedy that the courts have that I know is the one that has been enforced, and that would apply to this Court --

QUESTION: What about the contempt power? What about reprimands? What about censures?

MR. GREER: I admit, Chief Justice, that there are lesser sanctions. I didn't mean to not respond, Justice Stevens.

QUESTION: I should add, and I don't mean to complement your problems, but I notice that in response to Ms. Monteith's affidavit also bears on his willingness to cooperate with the duty of the lawyer to represent indigents, because she points out that he has always been willing to accept his share and more of the indigent defense cases in this division of the district, which is consistent with the duty of a lawyer to try and help out in a very serious problem.

MR. GREER: Yes, we do not find fault with that comment under the total facts in this record. It is just the sudden abandonment of it for some reason that brings us here.

I believe that the totality of the acts, failures to act, the letter, the letter making the conditional acceptance of further service under the CJA, all of these, which really are just responses to this court which sought to have him do what the lawyer should do without all of this trouble, fell short of the requirements of the Eighth Circuit.

QUESTION: Do you think there is a difference, Mr. Greer, between this letter being addressed to the circuit executive clerk of the court or the administrative secretary on the one hand and the chief judge on the other?

MR. GREER: I don't believe so, Chief Justice, because all courts have to function with their supportive personnel, including this one. There just is not time in this day and age to conduct all of the trial, conduct all of the hearing --

CHIEF JUSTICE BURGER: We will resume there at 1:00 o'clock.

(Whereupon, at 12:00 o'clock p.m., the Court was recessed, to reconvene at 12:59 o'clock a.m. of the same day. )

AFTERNOON SESSION

CHIEF JUSTICE BURGER: Mr. Greer, you may continue.

ORAL ARGUMENT OF JOHN J. GREER, ESQ., ON BEHALF OF THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT - RESUMED

MR. GREER: Mr. Chief Justice, and may it please the Court, it seems that Rule 46 is questioned by the petitioner. We take the position that Rule 46 is not vague, that it has been workable since the Rules of Civil Procedure have been adopted, and that it is the instrument to have conformity in the respective federal courts, including this one, and we refer, of course, to your Rule 33.7.

If responsibility is to be placed upon the Chief Justice and the Chief Judge for administration of the courts, he has to have power coupled with that to at least regulate performance in the court.

The bottom line, it seems to me, out of all of this travail, is what factually has occurred in total and what factually should be appraised in total, and how the judicial approach should face it.

It seems to me that if this court -- I am talking now, of course, about the Eighth Circuit -- cannot properly decide what the standard is under Rule 46, we are in real trouble.

QUESTION: Do you suggest that their capacity or authority is different from ours in that regard?

MR. GREER: No, I do not, except I say this, Chief Justice Burger. They are there. They know how lawyers act throughout the Eighth Circuit, they try as reasonable, prudent lawyers and judges to apply the standard that they believe should be applied, and it is not the standard that is or could be applied in a review time measured beyond the event and circumstances perhaps less significant than they were at the time.

What I am urging upon the Court for and on behalf of the Eighth Circuit is that the Court not deviate or get way from Rule 46. It seems to me and seems to the Circuit, I am sure, to be workable. The circuit has to deal with its lawyers day in and day out. That is what they have tried to do.

Those men, Judge Lay, Judge Arnold, Judge Haney, are not capricious. They are not unintelligent. And they did the best they could under these circumstances. They were told by this petitioner that he was extremely disgusted with the court. I would hate to make that statement before this Court and not believe that I would be sanctioned under Rule 33.7.

True, there is a flexibility. We don't complain about the flexibility. This is the highest court in the land. This is where the argument stops. How did the Eighth Circuit commit any fault when they listened to the petitioner say that it was his conscience as a lawyer that told him to not obey the law and to not follow the mandates of the Congress?

How can this Court afford the time to review instances like this which will occur all through the United States if a mistake is made here? It is a weighing of the word "disrespect" and its applicability to Rule 46.

QUESTION: Don't you think it is rather extraordinary for a person to be suspended by a Court of Appeals for writing a letter to a functionary in the District Court where neither the functionary nor the District Court thought that anything untoward had been done, and then somehow the Court of Appeals finds out about this letter that has been written to the District Court? Does the Court of Appeals usually take it upon itself to second guess the District Judge as to what warrants some kind of penalty?

MR. GREER: Justice White, I believe the only way the court can be administered is the way that it was administered in this case. I cannot explain Judge Van Sickle's approach. In the record, he entreated the petitioner to not go on.

QUESTION: Well, suppose Judge Van Sickle had issued an order to show cause why this man should not have been suspended from practice in his court, and he had a hearing and decided he shouldn't be suspended from his court.

MR. GREER: That would be Judge Van Sickle's judgment weighed against the judgment of the Eight Circuit.

QUESTION: The Court of Appeals could just take it on itself then to suspend him from their court for his conduct before the District Judge. That is what happened here anyway.

MR. GREER: I don't believe that that is what happened here, Your Honor.

QUESTION: You emphasize, Mr. Greer, that the Court of Appeals are there, on the ground. By implication we are not, which is correct. But by the same token Judge Van Sickle was on the firing line more immediately than the Court of Appeals, was he not?

MR. GREER: I have to admit that Judge Van Sickle was there dealing with this problem initially. I don't understand under the record exactly what Judge Van Sickle did when he interfered with the original bill and then sent it on. These are things I don't understand. When we file Form 20's and try to secure money under the Act, we do it not with the idea that this will be compromised, nor that if we walk away from the bill it is okay. That is not what we do. Not out in our Eighth Circuit.

CHIEF JUSTICE BURGER: Thank you.

Do you have anything further, Mr. Peterson?

ORAL ARGUMENT OF DAVID L. PETERSON, ESQ., ON BEHALF OF THE PETITIONER - REBUTTAL

MR. PETERSON: Mr. Chief Justice, and may it please the Court, very quickly, I would like to, in response to a question Justice O'Connor posed regarding whether or not the record reflected that Mr. Snyder agreed to again serve and comply with the guidelines, simply refer the Court to Mr. Snyder's letter dated February 22nd, of 1984, which is on Page 51 of the Joint Appendix.

Additionally, the Eighth Circuit acknowledged that fact that he agreed to again serve upon the panel being reinstituted and to comply with the guidelines in their first opinion, and that is found on Page 59 of the Joint Appendix, where they specifically say and recognize that he in fact and indeed has now agreed to serve in indigent cases and to comply with the CJA guidelines.

"However, he has otherwise refused to retract or apologize for his disrespectful remarks to the court."

And finally, Mr. --

QUESTION: When you use the term "his disrespectful remarks to the court," are you quoting?

MR. PETERSON: Yes, Your Honor. I am quoting from Page 59 of the Joint Appendix out of the opinion of the Eighth Circuit panel in the first case.

QUESTION: I understood in your argument in chief you took the position that these were not disrespectful remarks to the court.

MR. PETERSON: That is correct. I am simply pulling that out of the opinion to underscore the fact that in our opinion he was suspended for what the Eighth Circuit perceived were disrespectful remarks.

In conclusion, Your Honors, my opponent has indicated that the petitioner never said -- or that the petitioner said he would not obey the law. This record has absolutely no evidence that would indicate that Mr. Snyder ever said he would not obey the law.

All Mr. Snyder has said consistently from before the time the order to show cause was issued was that he would not apologize for saying what he believed was a truthful comment regarding concerns he had respecting the CJA Act.

Thank you very much.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 1:09 o'clock p.m., the case in the above-entitled matter was submitted.)