Cases by Issue - Indigents

Halbert v. Michigan - Oral Argument

Fri, 09 Jan 2009 14:49:02 +0000

Case:

Halbert v. Michigan

Media File:

03-10198_20050425-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of David A. Moran

Chief Justice Rehnquist: We'll hear argument now in Antonio Dwayne Halbert v. Michigan.

Mr. Moran.

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

The issue in this case is whether, 42 years after this Court decided in Douglas v. California that indigent defendants have the right to the assistance of counsel for a first-tier direct felony appeal--

Justice O'Connor: Well, now, Douglas didn't involve a guilty plea, I guess.

Mr. Moran: --It did not, Your Honor.

It was a trial case.

Justice O'Connor: And did the Court say anything about the effect of having it be a guilty plea?

I guess it didn't.

Mr. Moran: It did not.

None of this Court's cases in the Douglas line have turned on whether the conviction was by trial or by plea.

Justice O'Connor: Does that make a difference or could it?

Mr. Moran: I don't believe it does, Your Honor, because as Mr. Halbert's case demonstrates, all sorts of difficult, technical issues can arise in a guilty plea.

Of course, certain issues are waived.

Trial issues are waived by the effect of a guilty plea, but many other issues remain.

And as Mr. Halbert's case demonstrates, especially in the guilty plea cases... this Court well knows the effect of the Federal sentencing guidelines... very complicated issues of sentencing law arise.

And now Michigan has a sentencing guideline system that is perhaps more complicated than the Federal system that's been in effect since the 1980's.

Justice O'Connor: Did... did your client waive any right to appeal here in connection with the proceedings at the plea?

Mr. Moran: He did not waive a right to file an application for leave to appeal.

Because of the--

Justice O'Connor: What did he waive?

Mr. Moran: --He waived the right to have a... to have what is called in Michigan an automatic appeal, in other words, the right to automatically have full briefing and oral argument.

So what he agreed to by pleading was to go through the application for leave to appeal procedure which involves a preliminary determination of merit as to whether the appeal should proceed.

Justice Scalia: Why didn't he waive the right to have counsel for that... for that purpose since that was the law in Michigan?

Mr. Moran: Well, he did not... first of all, as a matter of fact, he did not.

He was never told at any point during the plea proceedings that he would be giving up his right to counsel.

Justice Scalia: Well, he was told what... what right to counsel he would have and it didn't include this.

Mr. Moran: He was told that under certain circumstances the judge would appoint counsel.

Justice Scalia: Right.

Mr. Moran: But the judge never said, under any other circumstances, I will not appoint counsel.

Chief Justice Rehnquist: Well, isn't that a perfectly natural inference if you're told you get A and B, that C and D might have been... that C and D will not be given?

Mr. Moran: It might be a natural inference for somebody with a level of sophistication, but Mr. Halbert is a special education student, functionally illiterate.

And nobody explained to him that he wouldn't be given his right to counsel.

Justice Kennedy: Well, did we take this case on the ground that he wasn't adequately advised or did we take the case on the ground that even if he were advised, he'd still have his right?

Mr. Moran: I hope the latter, Justice Kennedy, because this is a case in which the State is making a waiver argument.

And, of course, the waiver argument is not part of... is not the intent of the statute.

What the statute does is it tacks on and, by the way, the defendant should be advised at the time of the plea that they won't be getting counsel.

Justice Kennedy: Well, I... I take it you would challenge the validity of the waiver even if he were advised?

Mr. Moran: Absolutely.

Justice Kennedy: And even if he said, I hereby waive?

Mr. Moran: Absolutely, we would because that is a waiver that is designed to extract only from the poor.

That waiver has no effect whatsoever on those with money because, in fact, a money defendant is not even eligible for appointed counsel on appeal.

So that waiver has no effect whatsoever on--

Justice Souter: Well, wouldn't... I'm... I'm sorry.

Mr. Moran: --It would have no effect whatsoever on money defendants I'm saying.

Justice Souter: Wouldn't your position be different if he had been advised that he had exactly the right that you claim he has, and the court said, however, in Michigan you may not enter the... the plea unless you waive that right?

If... if you don't want to waive that right, which I've just explained to you, we'll... we'll have a trial.

Would... would your answer still be that... that waiver would be as a matter of law impossible?

Mr. Moran: The waiver would be unconstitutional under those conditions because it is a discriminatory waiver.

To show how breathtaking the State's argument--

Justice Kennedy: How... why is that prejudicial to him?

He says, okay, I can't plead guilty.

I really did it but I can't plead guilty.

Mr. Moran: --I'm sorry.

Justice Kennedy: Why doesn't he just have a trial?

He says, I'm not going to contest the trial.

Mr. Moran: Well, as this Court has long recognized, a trial provides very substantial benefit.

I mean, excuse me.

A guilty plea provides very substantial benefits.

And so the effect of the Michigan statute then would be only the money defendant can receive the benefits of a guilty plea and then have sentencing errors corrected.

Justice Kennedy: I thought you were going to say to Justice Souter, before I interrupted, that it's... that it's far-reaching.

Mr. Moran: Yes.

Well, not only that, if the State's waiver argument is correct, then presumably the State could extract a waiver saying you can't have free transcripts.

You can't have the waiver of the filing fees.

In fact, the State could extract a waiver saying you can't have counsel at sentencing.

Justice Scalia: These are all disparate impact arguments.

There's... there's... you're not making any argument that the State intentionally discriminates against the poor.

You're just saying the effect of this is harder on the poor than it is on the rich.

But I thought our... our equal protection cases have... have said that disparate impact doesn't... doesn't hack it as far as equal protection is concerned.

Mr. Moran: Well, Justice Scalia, I actually have two responses to that.

First, this is intentionally aimed at the poor.

Looking at 770.3a, the statute under... in question here, it is clearly aimed at the indigent.

It refers to the indigent.

So this is a statute that on its face is... is taking away the right of the indigent and only the indigent to have... have an attorney.

So I don't agree that is is a... simply a disparate impact case.

But in the context of appellate counsel for a first-tier felony appeal, this Court's cases have... have not applied the same line of analysis that this Court has applied in other contexts, and I think that's quite clear most recently in the MLB case--

Justice Ginsburg: In any event, you pointed out that on the face there is the distinction on the face of it--

Mr. Moran: --Yes.

Justice Ginsburg: --it is not a disparate impact case at all--

Mr. Moran: Yes.

Justice Ginsburg: --because it affects only indigents.

Mr. Moran: Yes.

There is no question that this statute was enacted for and specifically applies only to the indigent.

It has... it has no impact whatsoever on the wealthy, and it's aimed at the... at the indigent only.

So I do... I do not agree that this--

Justice Scalia: Whenever a State has... has initially given a broad benefit to the poor, whenever it cuts back on poor... on part of that benefit, it is denying equal protection to the poor?

That... that seems to be an extraordinary proposition.

The State isn't picking on the poor.

It's just saying that... that the... the free counsel we have agreed to provide in the past we're no longer going to provide in this... in this one instance of guilty pleas.

And... and you say that... that is intentional discrimination against the poor?

Mr. Moran: --It's not a... a disparate impact claim I say, because it is intentionally aimed at the poor.

The statute was designed to take away counsel from the poor and only from the poor.

Justice Scalia: So any cutback on benefits that is given... on benefits that are given to the poor is intentional discrimination against the poor.

Mr. Moran: I'm not saying any, Justice Scalia.

Justice Scalia: Just this one because that's your case.

Mr. Moran: This case certainly is.

Justice Ginsburg: You're saying this is case like Douglas which was equal protection, like a free transcript, like a filing fee for an appeal.

Mr. Moran: Yes.

Justice Ginsburg: You're bracketing--

Mr. Moran: This case... in many ways the restrictions that are placed on the indigent's ability to appeal in Michigan, as a result of this statute, are worse than those that were struck down in Douglas because at least in Douglas the court, the appellate court, would review the entire transcript, looking for arguable issues.

We don't even have that here.

All we have here is the indigent forced to shift for himself, forced to try and determine whether there are any issues, forced to order his own transcript.

Under the Michigan statute, the indigent has to figure out how to obtain his or her docket entries, his or her transcripts, his or her prisoner account statements, all the documents necessary for filing a first appeal that would ordinarily be done by counsel.

And so--

Justice Stevens: May I just understand one point that Justice Scalia's question raises for me?

In your view, is the provision of counsel for the indigent for appellate purposes purely a matter of grace, or was there some underlying obligation to provide counsel?

Mr. Moran: --Oh, it's my... it's certainly my contention, Justice Stevens, that Michigan is required to afford appellate counsel in this situation for a first tier direct felony appeal on the merits.

Justice Souter: So that ultimately your case rests not on equal protection but due process.

Mr. Moran: It's a merger of both principles, as this Court said--

Justice Souter: But it's one as much as the other, isn't it?

Mr. Moran: --Yes.

Justice Souter: I mean, you're... we're saying if you're going to provide a first appeal of right, one incident of that is, as a matter of due process, you've got to provide counsel.

Mr. Moran: Yes, Justice Souter.

Justice Scalia: So you're... you're retracting the pure equal protection claim?

I don't think you want to do that.

I mean, you would say that even if there were not a due process right, you would still regard this as... as directed against the poor.

Mr. Moran: It is directed--

Justice Scalia: Or not?

Mr. Moran: --It is directed against the poor, which is why there is an equal protection component to this argument, but this Court's cases--

Justice Scalia: But you say that component wouldn't exist unless you begin with a due process right to have counsel on appeal.

Mr. Moran: --I believe that's right.

It's... it's difficult... I have to confess, Your Honor, it's difficult sometimes to separate out the due process and equal protection strands from the Griffin and Douglas, and this Court most recently in MLB said that there is a certain merger.

Also, I believe in Smith v. Robbins this Court reiterated that there is a certain merger of the lines in these cases.

But there--

Justice Souter: You're... you're saying that the due process is what gets you beyond the stage of merely providing counsel as a matter of grace.

That's what due process does for you.

Because they have to provide counsel not merely as a matter of grace, you have a very clear equal protection case which you would not otherwise have.

Isn't... isn't that the way the two work together?

Mr. Moran: --I think that's right, Justice Souter.

I think I agree with that.

Justice Kennedy: Can... in your view, can the State require a waiver of the right to appeal for everyone?

Mr. Moran: That's a question this Court hasn't decided, and I don't have a position on that.

But that's far different from this case because that would not be discriminatory.

Justice Kennedy: Well, I'm not so sure.

It certainly goes to the importance of the significance of the underlying right.

My understanding is... correct me if I'm wrong... that in the Federal system, we require waivers of the right to appeal frequently, even waiver of the right to appeal the sentence even before the sentence is calculated, as I understand it.

Mr. Moran: Yes.

Justice Kennedy: And do you question the lawfulness of that?

Mr. Moran: I don't.

And that... that case has not come before this Court yet, and so I don't know how this Court would decide that case if it comes.

I know some of the Federal circuits have upheld such appellate waivers as a part of a negotiated guilty plea.

One thing the Michigan statute is... does is it takes away the right to appeal effectively for indigents without negotiation.

It's... it's the baseline.

Justice Scalia: But, Mr. Moran, if... if you're... if you're tying your equal protection claim to a due process claim and if it is not a violation of due process to require people to waive their... I mean, you can waive entirely the right to appeal.

Surely you can waive the right to counsel on appeal.

If that's not a violation of due process, then your equal protection claim dissolves.

Mr. Moran: But, Your Honor, the problem is... is that the statute requires only the poor, imposes a forced waiver on only the poor.

Justice Scalia: That's an equal protection claim.

Mr. Moran: That's an equal protection claim.

Justice Scalia: But you've... you've said your equal protection claim hinges on the due process claim.

If the due process claim, in turn, hinges upon waiver, then apart from the... from the dispute in this case as to whether waiver occurred or not, if waiver does occur, there's no due process claim, and then there's no equal protection claim.

Mr. Moran: I'm really not sure that you can separate out the two strands of the Fourteenth Amendment again, and I know this Court didn't try in MLB, and I know this Court didn't try in Smith v. Robbins, so that there is... there is a component of both.

And it's precisely because of these sorts of questions that I think you have to view them as an integrated whole for purposes of the Griffin/Douglas line.

Justice Souter: In any case--

Justice O'Connor: Where... where do we find the waiver here?

Is it in the joint appendix?

Mr. Moran: Well, it's my position there was no waiver, but the--

Justice O'Connor: But you referred to something that was waived.

Mr. Moran: --Yes.

Justice O'Connor: Where would we find that?

Mr. Moran: Well, the plea proceeding.

It's the plea proceeding.

And it's--

Justice O'Connor: Well, don't take your time to look it up.

Maybe counsel for respondent can find it for us.

Mr. Moran: --It's... it's in the joint appendix--

Justice O'Connor: All right.

Mr. Moran: --beginning on page 19.

Justice Scalia: It's their argument anyway.

Let them--

Justice Breyer: I'm missing something on waiver, but I would have thought a person can waive a... a right to have a counsel on appeal.

He can waive a trial.

He can waive a jury trial.

But before he has to... before he decides, he has to know that he has the constitutional right to a jury trial.

Mr. Moran: That's right.

Justice Breyer: And why wouldn't he also have to have the... to know that he has the constitutional right to a lawyer to represent him?

Mr. Moran: Well, that's my position--

Justice Breyer: All right.

That has nothing to do with equal protection.

It has to do simply with a very common sense rule that we apply in every case, jury trial, et cetera.

So all we'd have to say is, of course, he has a right to a lawyer.

Now, if he wants to go back and waive that right, fine.

Mr. Moran: --That's right.

Justice Breyer: That's all.

That's the end of it.

Mr. Moran: That's right.

Justice Breyer: So what's all this complicated thing about?

Mr. Moran: If an indigent, after being sentenced, decided for whatever reason I would prefer to go on appeal by myself, which is actually a... a right this Court rejected in Martinez, that you have a right to represent yourself on appeal, but in Michigan an indigent is allowed to... would be allowed to represent himself or herself on appeal if they chose to do so.

The problem here is that the statute purports to take away the right, and it's our position that this is a constitutional--

Justice Breyer: No, no.

You'd have to say the statute is wrong in taking away the right.

Mr. Moran: --Yes.

Justice Breyer: But he can waive it if he wants to, knowing that he has the right.

Mr. Moran: That's right.

We have no problem with a voluntary waiver.

We certainly have a problem with a forced waiver saying that you cannot enter a plea which produces tremendous benefits in Michigan, as everywhere else, unless... unless you agree to waiver--

Justice Scalia: --Oh, but... but that happens all the time.

I mean, the waiver... waiver of appeal in... in guilty... in guilty pleas.

That's... that's not permissible either?

Mr. Moran: --I take no position on that.

It may or may not permissible.

Justice Scalia: Well, you have to if you're going to make the argument you just made.

Mr. Moran: But it's far different because that's something that can be obtained in negotiation.

But what we would have--

Justice O'Connor: Well, Mr. Moran, here on page 22 of the joint appendix, the court is speaking to the defendant and says, you understand if I accept your plea, you are giving up or waiving any claim of an appeal as of right.

Mr. Moran: --Yes.

Justice O'Connor: And you think that was not effective?

Mr. Moran: No.

That was effective.

That... that's referring to the automatic appeal that he would have if he went to trial where he would have full briefing and oral argument.

The Michigan--

Justice O'Connor: Well, I... it doesn't say that.

Mr. Moran: --No, it doesn't.

This was a... this was a pretty poor waiver proceeding in a number of... of respects, but it--

Justice Kennedy: Well, he does--

Justice O'Connor: I'm--

Justice Kennedy: --he does go on to say that... that he can appoint a lawyer for... in certain instances.

He doesn't complete the explanation by saying there are other instances and when I will not appoint one.

That he leaves out, although this a represented defendant.

Mr. Moran: --Yes, he was.

Justice Kennedy: He had a counsel at the plea.

Mr. Moran: He did.

Justice Breyer: I'm mixed up again.

What is the answer to this?

I... I would have thought that even if those words that Justice O'Connor read referred directly to the kind of appeal that we have in front of us... in other words, the one that's at issue... that still he'd have to know he has a right to a lawyer on that appeal before he could waive it.

Mr. Moran: Yes, Justice Breyer, I agree.

Justice Breyer: And does anybody dispute that?

Mr. Moran: I believe--

Justice Breyer: Is that at issue here?

Mr. Moran: --I... I believe the State might dispute that.

I'm not sure.

What the Michigan constitution does, Justice O'Connor, if I may come back to your question, is it says that for somebody who pleads guilty or nolo contendere, they are giving up the right to the automatic appeal, and they have... they then have to proceed by the application for leave to appeal.

And so the Michigan constitution explicitly still provides a right to appeal, but it changes the method.

And so Michigan's appeal, after a guilty plea now, is like the first appeal in several other States, Virginia, West Virginia, and... and several other States have guilty plea appeals.

Justice Scalia: That's a strange terminology.

It doesn't provide a right to appeal.

It... it provides a right to apply for an appeal, a right to ask for an appeal.

A right to ask for an appeal is not a right to get an appeal.

Mr. Moran: It's framed in terms of a... of a right.

Page 2 of the brief--

Justice Scalia: So you have an absolute right to ask for an appeal.

Mr. Moran: --Yes.

Justice Scalia: But that's not a right to appeal.

It's a right to request an appeal, which can be granted or denied.

Mr. Moran: Yes.

Justice Scalia: Okay.

Mr. Moran: But it's a... it's... what Michigan has done is it has changed the method of the appeal.

And so Virginia, for example, has first-tier appeals by petition.

West Virginia has a first-tier by petition and--

Justice Scalia: Well, it's done more than change the method.

It's changed the entitlement.

The court can simply say we're not interested in your appeal.

It doesn't raise a significant legal issue.

Mr. Moran: --Yes, Justice Scalia, but that's not how the... the Michigan Court of Appeals works.

The Michigan Court of Appeals is an error-correcting court.

And so in Mr. Halbert's case, the Michigan Court of Appeals denied his appeal, after his futile attempt to... to identify his issues, with an order saying that there was a lack of merit in the grounds presented.

That is a preclusive decision on the merits of his case.

That--

Justice Ginsburg: --That's just... but that's just boiler plate, isn't it?

That's what they say in all these cases.

Mr. Moran: --Yes.

Justice Ginsburg: And I think Michigan cites a Michigan Supreme Court decision that says it's not on the merits.

Mr. Moran: That--

Justice Ginsburg: It's People v. Berry?

Mr. Moran: --Yes.

That was a decision of the Michigan Supreme Court referring to its own orders denying applications for leave to appeal which are not on the merits.

The Michigan Supreme Court denies the applications for saying... by saying, we are not persuaded that we should hear the questions presented.

Justice Ginsburg: Well, why wouldn't it be the same if the... if it's a discretionary appeal at the intermediate appellate level?

Mr. Moran: Because the Michigan Court of Appeals, unlike the Michigan Supreme Court, is an error correcting court.

And so it issues orders saying denied for lack of merit.

And the Michigan Court of Appeals dozens and dozens of times in the last 25 years has said, without exception, that is a decision on the merits that precludes relitigation under the law of the case doctrine.

Justice Scalia: Didn't... didn't the supreme court in the Bulger case... was that the name of it?

Mr. Moran: Yes.

Justice Scalia: Didn't it say that the... that the intermediate court's denial of... of appeals was a discretionary judgment?

Mr. Moran: It called it a discretionary appeal, Justice Scalia, without ever explaining why, and the... the dissent in Bulger pointed out the Michigan Court of Appeals is an error-correcting court.

And in fact, the very author of the--

Justice Scalia: That was a dissent, though.

Mr. Moran: --That's right, but the very author of the opinion in Bulger, Chief Justice Corrigan, just 1 year later or 2 years later describes the effect of... of an order denying leave to appeal in the Michigan Court of Appeals, and says it clearly shows they considered and rejected the merits.

Justice Souter: --So, in effect, it's discretionary in the sense that it's discretionary as to whether to give it full-dress treatment, but the bottom line, whether they give it full dress or... or merely discretionary denial is... is an implication on the merits.

Mr. Moran: Yes, exactly as in Virginia.

In Jackson v. Virginia, the Court recognized that the... the Virginia situation is exactly the same, that there is a petition to appeal to the Virginia Court of Appeals, and that each petition is considered on the merits, and a denial of the petition is seen as a decision on the merits that precludes relitigation under the law of the case doctrine.

And so Michigan's appeal after a guilt plea now is exactly like the one in Virginia.

Justice Ginsburg: Is that something the intermediate appellate court has said?

Have they said that, that... we have a... a discretionary appeal, but every... in every case it's a merits decision?

We don't have any decisions that say we are exercising our discretion not to review.

Mr. Moran: If a... if a appeal or an application to the Michigan Court of Appeals is filed in the wrong form or is untimely or has some other defect, then the court will occasionally issue an order denying the application for that reason.

But for any properly filed application for leave to appeal, the longstanding practice of the Michigan Court of Appeals is to say it is denied for lack of merit in the grounds presented.

Justice Scalia: This means, I would presume, that... that we would... we would have to give... our Federal courts on habeas would have to give deference to all decisions of the intermediate court since they're all on the merits.

Mr. Moran: And they do.

Justice Scalia: Federal courts do?

Mr. Moran: Yes.

Justice Scalia: They assume that all factual and legal arguments have been decided against the... the person applying for a discretionary appeal?

Mr. Moran: Yes.

After Abela v. Martin in the Sixth Circuit.

And there is a... a whole host of Federal district court decisions in the Eastern and Western District of Michigan all saying that when an order is denied for lack of merit in the grounds presented, the AEDPA standard of review applies.

And so the State obtains tremendous benefits from this procedure.

They obtain deference on habeas corpus review.

They prevent the indigent, if the indigent were to ever get a lawyer at some later stage, from beginning relitigation on State collateral review.

And so the State very happily argues for all of those purposes that this is a decision on the merits, but then they come before this Court and they say, oh, no, it's not a decision on the merits.

It's really discretionary despite what it says because they are hoping that this Court will conclude that it is a discretionary appeal.

In fact, the State--

Justice Ginsburg: Mr. Moran.

Mr. Moran: --has made an even more radical argument in its brief.

The State maintains that the appeal to the Michigan Court of Appeals is a second-tier appeal, and that is plainly contrary to the... to the actual function of that court because there is a provision that if trial counsel suddenly realizes in a plea case, after sentencing, that there are issues that she should have raised, it allows her to do that.

And so the State now argues that that's really the first-tier appeal, and then the application that follows after that to the Michigan Court of Appeals is a second-tier appeal.

I'll just point out that even the State's amicus doesn't agree with that, and... and rightfully so in light of Swenson v. Bosler, which has rejected an attempt to reorganize by labeling how one's appeals go.

Justice Ginsburg: Mr. Moran, before your... your time is up, I did want to know what is your position on... let's say that there is... you prevail and there is a right to counsel for these applications to appeal.

And if counsel looks at the case and determines that there is no tenable ground for an appeal, could counsel file the equivalent of an Anders brief?

Mr. Moran: Yes.

Yes, Justice Ginsburg, and in fact, I have done that personally.

Before I became an academic, I worked at the State Appellate Defender Office in Detroit and was appointed to represent indigents on plea appeals.

And in a significant percentage of the cases... I can't quote you the numbers off the top of my head... after reviewing the case, the appellate counsel then concludes that there is no merit, that there are no grounds to proceed, that the defendant in fact got whatever it was she bargained for in the plea bargaining, at which point then either a motion to withdraw may be filed or... or the equivalent, the Michigan equivalent, of an Anders brief.

And so that is done in a number of cases.

It is our position that that procedure actually helps improve the appellate process in Michigan because without that process, all you have are indigents like Mr. Halbert, a special education student with mental disabilities, trying to identify his own issues and fall... and filing, in... in his case, with the help of a fellow prisoner because he could not have done it himself... the help of a fellow prisoner, an application that is completely incoherent, misses several issues that are right on the face of the record, correctly asserts that his sentencing guidelines were misscored but... but without explaining why, without even identifying which sentencing guidelines were misscored.

And in fact, he received a minimum sentence that was approximately three times too high under the sentencing guidelines.

The State concedes that one of the sentencing guidelines was scored in the State's favor erroneously.

We concede one of the... one of the sentencing guidelines was scored in Mr. Halbert's favor erroneously.

But then there were two others, and the most important ones, the OV, Offense Variable, 13.

That was scored for 25 points in both cases.

And so Mr.... Mr. Halbert, in fact, received a sentence that was much too high.

Michigan requires... Michigan is one of the few States that requires that ineffective assistance of counsel claims be raised on direct appeal or they're lost.

And so at that point, Mr. Halbert had to figure out a way to raise an ineffective assistance of counsel hearing, which requires an evidentiary hearing at which trial counsel must be called, assuming trial counsel is still available to be called, all from prison, and there was no possible way he could do that.

So it's not very surprising that even with the help of a fellow inmate, that his application for leave to appeal was completely incoherent.

The fellow inmate actually did write the... the trial judge and say we need to have an evidentiary hearing on ineffective assistance of counsel.

But under the statute, the judge had no discretion to grant that motion.

Under the statute, only if there was already an upward departure from the sentencing guidelines, only then would the judge be required to appoint counsel, and of course, the guidelines, as misscored without objection from defense counsel... there was no upward departure at that point.

If the Court has no further questions, I'd like to reserve the balance of my time.

Argument of Bernard E. Restuccia

Chief Justice Rehnquist: Very well, Mr. Moran.

Mr. Restuccia.

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

I want to start with the factual claim regarding the waiver that the Court identified, pages 22 and 23 from the joint appendix, being the point at which Mr. Halbert, in fact, waived his right to the appointment of appellate counsel.

I think Justice Scalia is right in noting that he was told specifically it's under these conditions you'll be appointed a counsel; under these conditions, you might be appointed counsel.

From context it's unambiguous that he would otherwise not receive counsel.

And what's important is at the joint appendix on page 45, the trial court, in fact, made a factual finding on this point.

So in order for this Court to conclude that Mr. Halbert did not waive his right to appellate counsel under the particular circumstances, you would have... you would have to conclude that the trial court was clearly erroneous in its factual finding.

Justice Souter: Well, I mean, wouldn't we have to conclude that if we're going to apply the same standards here that we usually do in... in the plea waiver situation?

I mean, we... the... the classic point of it all is the knowing... the... the intelligent, voluntary waiver of a known right.

And leaving aside the equal protection problem here, even if we didn't have that, I don't see that there would be... have been an adequate waiver here because he was never told that he had the right that he now claims as a matter of due process.

You indeed, dispute it.

Mr. Restuccia: Yes.

Justice Souter: But unless he were told that, the... the waiver that... that depends upon parsing the difference between must and may in the two paragraphs of explanation certainly wouldn't be taken as the predicate for a waiver of a known right.

Mr. Restuccia: I... I think that the colloquy makes clear that he does not... he's not going to have an appeal as of right, and then when told that--

Justice Souter: Well, the... the appeal of his right... the appeal as of right point, as I understand it, is a different point.

What they're getting at there is it will be discretionary with the reviewing court whether your case is reviewed on the merits on some point if you ask for it.

We're here dealing with the right to counsel, and it seems to me unless he were told that he had the right to counsel that he claims and he then waived it, that there wouldn't be a... an... an adequate waiver under Boykin.

Mr. Restuccia: --I think in... in context when told that only under these circumstances you're going to receive counsel in bringing discretionary application, that it's clear that he is waiving in his decision to go forward with the... his plea--

Justice Breyer: Look, the... imagine... I'm just repeating what Justice Souter said.

There must be... it's so obvious that there must be an obvious answer, but I haven't heard the answer.

He knows Michigan law or his lawyer does.

The Michigan lawyer looks at the statute.

It says a defendant who pleads guilty shall not have appellate counsel appointed for review with some exceptions, which they claim are inadequate.

So he thinks the law is shall not.

I have no right.

So he doesn't not only... not only is he not waiving a known right, there's nothing for him to waive.

He has no such right.

Now, obviously, when there's nothing for him to waive, how could he waive anything?

And obviously, a person who's told, hey, you don't have a right to appeal no matter what and then he says, okay, I waive my right to appeal, I mean, really.

Mr. Restuccia: --I think that the... the... for the two questions that are asked, he explains... the court explained to him he didn't have appeal as of right but then said--

Justice Breyer: Okay, that's the end of it.

Right?

Mr. Restuccia: --But then... and then the... the following--

Justice Scalia: But he had an appeal of right until he pleaded guilty.

Mr. Restuccia: --That's right.

Justice Scalia: And that's where... that's what the waiver consists of.

To say he didn't have an appeal of right, no.

That's... he had an appeal of right up until the point where he pleads guilty, and that's what... and that's what the judge is asking.

Justice Breyer: Precisely.

Justice Scalia: Do you want to... do you want to plead guilty, even though if you plead guilty, you'll get... you'll get a lawyer only under these circumstances.

Justice Breyer: Precisely.

Justice Scalia: The court didn't say only--

Justice Breyer: And that's what we're deciding is--

Justice Scalia: --That's the problem.

Justice Breyer: --That's exactly the issue in front of us.

Is it constitutional or not constitutional?

And waiver has nothing to do with it.

Mr. Restuccia: I think that... I also want to make the point, of course, that there was a factual finding, so if this Court did conclude, it would have to find the trial court was clearly erroneous.

The--

Justice Ginsburg: Mr. Restuccia, the... we are dealing here, as is not uncommon, with someone who is learning disabled, mentally impaired, and the trial court did not say if you plead, you relinquish your right to counsel in seeking leave to appeal.

It said only when... if this exists, I must, and if that exists, I must, but did not say if you plead, you relinquish your right to counsel in seeking leave to appeal.

And I was curious as a matter of what is going on in Michigan trial courts now.

Do judges routinely tell defendants who plead guilty... tell them not only when the court must give them counsel, but if you plead, you relinquish your right to counsel in seeking leave to appeal?

Because that--

Mr. Restuccia: --Yes.

Justice Ginsburg: --that was never imparted in this case.

Mr. Restuccia: The advice concerning right to appeal, the one that was used in the trial court here, was a form from 2000.

The... the 2004 form is available from the Michigan Supreme Court web site, and it has been modified now that... because the trial court... it seems apparent that he was reading from the advice concerning right of... to appeal.

The way it reads now is it will say you are not entitled to have a lawyer appointed at public expense to assist you in filing an application for leave to appeal.

So this... this... the colloquy now would happen differently, but I think that--

Justice Scalia: Of course, your case is a little stronger than... than the court just asked... just saying I must appoint counsel in this circumstance and I must appoint counsel in another circumstance.

That might have left open the implication that you could appoint counsel in other circumstances, but the court went on and to say I might appoint counsel in this circumstance and I might appoint counsel in the other circumstance.

So if there's any implication from it, the implication is not just that I have... I have listed all the areas in which I must, but it's also I have listed all the areas in which I either must or even may, if there's an implication.

Mr. Restuccia: --I think... I think that's right.

Justice Ginsburg: Well, apparently the people who... who redid the model instructions thought that this would be a clearer one, to tell him up front you don't get counsel if you don't fit under these exceptions.

Mr. Restuccia: That's right.

And they... they did... they did modify the form.

So on the question of the underlying constitutionality, I want to... I want to make a few points, that the... the threshold question really is whether there's an appeal as of right in Michigan for a plea-based conviction.

Michigan law is clear that there is no appeal by right.

It's an application process and it's a discretionary review.

The Michigan Court of Appeals has no obligation to correct errors in these cases, has no obligation to review the merits.

Justice Stevens: Do you agree with your opponent that for AEDPA purposes, they treat the intermediate decision as a decision on the merits?

Mr. Restuccia: No I'd--

The law in the Sixth Circuit is in fact in conflict with a case... an earlier case, McKenzie v. Smith... had determined that the... a decision with that language, that virtually identical language, is not... is not entitled to deference.

Justice Stevens: So your opponent has misrepresented Michigan law.

Mr. Restuccia: No.

I didn't say... I wasn't suggesting that.

Abela is one case stating one position.

McKenzie, an earlier case, stated another position.

Justice Stevens: But he says there are dozens of cases at the district court level that apply AEDPA in the way he described.

Is that wrong?

Mr. Restuccia: Well, he didn't cite those cases.

I--

Justice Stevens: No, he didn't, but do you think he's wrong?

Mr. Restuccia: --I... I know that our office handles all the habeas... habeas corpus--

Justice Stevens: Do you think he's wrong?

Mr. Restuccia: --I think he is wrong.

The--

Justice Souter: Are you going on... on record as saying that Michigan does not and will not, in the United States courts, claim any AEDPA deference as a result of one of these determinations?

Mr. Restuccia: --The Solicitor General made that position clear before the argument... before this Court in Tesmer v. Kowalski.

So we have not been advancing that claim.

In fact, we've been advancing a claim--

Justice Souter: And you have not been... and... and Michigan lawyers have not been advancing that claim in the district courts?

Mr. Restuccia: --The... all the habeas petitions are run through the office of the Attorney General, so that the... when the Solicitor General from the State of Michigan instructed our staff not to advance that claim, that means all habeas cases in Michigan essentially there will be... that argument will not be advanced.

Justice Souter: So, so far as you can tell, that's the way it's been.

Mr. Restuccia: That's right.

That's right.

And because there is no appeal as of right under Michigan law, this... the Douglas case doesn't govern the disposition.

Ultimately the... the controlling is Ross.

And the issue then is whether Michigan provides a meaningful access to an indigent defendant who wants to bring an application for leave.

That's really the... I think the heart of the constitutional issue.

There are three distinct characteristics of the Michigan system.

The... the nature of the review is discretionary, and I think comparable to the kind of review in Ross that was described by this Court for the North Carolina Supreme Court.

Mr. Moran makes a claim that the Michigan Court of Appeals is an error-correcting court.

With regard to applications for leave where there is no right to have the merits reviewed, it is not an error-correcting court.

In fact, one of the reasons for the legislation in Michigan, the reason the Michigan constitution was changed was because of the heavy volume that the Michigan Court of Appeals was facing.

There are 28 judges in the Michigan Court of Appeals, and they produce--

Chief Justice Rehnquist: Do they all sit together?

Mr. Restuccia: --No.

They're panels of three.

They issue about 4,000 opinions each year.

So each judge is responsible for authoring--

Chief Justice Rehnquist: But it's just one court.

Mr. Restuccia: --One court.

That's right.

So each judge is responsible for authoring between 130-140 opinions, having to join in another 280.

So resource allocation is one of the pressing concerns in the Michigan Court of Appeals.

The situations in which the court of appeals will grant leave on application are rare.

It's... it's reluctant to grant leave in these cases in part because of the--

Justice Ginsburg: Then why... if it's just denying... or not granting appeal, why does it use the boiler plate, for lack of merit in the grounds presented?

Mr. Restuccia: --It's used that standard order for the last 20 years or longer.

The only Michigan Court of Appeals case in... only published case in an application for leave setting is the Bobenal case cited by the people in our... the State of Michigan in its brief, in which the Michigan Court of Appeals said there is no... this is not a determination on the merits.

The only published case for Michigan in which there was an application for leave from a plea-based conviction is People v. Berry in which the Michigan Court of Appeals, after initially having denied leave, then in a collateral attack granted leave on the very same issue and said that its original--

Justice Breyer: Why... sorry.

Finish.

I just had a... I wanted to go back to something you said, but I want you to be finished.

Justice Scalia: Could I ask about grounds presented before we get off this?

Is it conceivable that the lack of merit in the grounds presented means lack of merit in the... in the grounds of application?

Is... is the applicant required to state why this particular appeal is worthy of being entertained?

Mr. Restuccia: --They're supposed to raise those arguments.

I think that's exactly right, that merits can have different meanings, and it can... it can relate to whether it would justify the resources of the court to examine the underlying merits of the claim.

I think that's right.

That's one understanding of the... of the order that's consistent with the way it's been treated by the court of appeals and also, most importantly, by the Michigan constitution, when the people of the State of Michigan said trial-based convictions, there's an appeal as of right.

For all other convictions, for plea-based convictions, it would be by leave.

And Michigan's Supreme Court, in examining this very question about the nature of review, said that it was discretionary.

Justice Ginsburg: What of Mr.... Mr. Moran's point that this... whatever the merits are, it counts as law of the case and it's... it conclusively determines the issues presented?

Mr. Restuccia: That's not what happened in... in People... in the Bobenal case, which was a court of appeals published decision where the order read virtually identical... identically to this one, and the court of appeals said it could... would not be bound by its original denial of leave for the lack of merits on the grounds presented and reached the merits of the claim.

The same thing happened in... in the Berry case in which--

Justice Souter: Well, that was the same court, though, wasn't it?

Mr. Restuccia: --Right.

Justice Souter: But what... what about preclusion on other courts?

Mr. Restuccia: The--

Justice Souter: In litigation in other courts.

They... did... did they ever say there is no claim or issue preclusion in other courts as a result of... of our denials?

Mr. Restuccia: --The court of appeals was only examining its effect on itself, and wasn't examining on subsequent courts.

Justice Souter: And any... any court, I mean, in... in theory, can... can revise its own... its own opinions.

But the... I mean, we look to preclusion really on... on the effect of the judgment in another court, and I take it they have not ruled on that.

Mr. Restuccia: Well, but both... both opinions, in Bobenal and Berry, the court said it was not a ruling on the merits.

In other words, if a subsequent court then said it was a merits determination, it would be inconsistent with the holding from Bobenal and it would be inconsistent with Berry with saying the merits have not been reached.

Justice Scalia: And they have said the same, you tell us, as to Federal courts.

Mr. Restuccia: Right.

The Federal courts have--

Justice Scalia: I mean, that's another court, and... and they are not asserting that they've decided on the merits in Federal court.

Mr. Restuccia: --The Federal courts have been ambiguous.

In other words, the Abela case... they said--

Justice Scalia: I'm not talking about what the Federal courts have said.

I'm talking about what... what Michigan has said and... and what the court of... has the court of appeals spoken on that subject?

Mr. Restuccia: --Yes.

The court of appeals in the Bobenal case said, in fact, examining virtually the identical language of the issue raised here, that this was not a decision on the merits and that it was not itself bound as law of the case because the merits had not been resolved.

I think the Bulger case is kind of the paramount case because it is the Michigan Supreme Court conferring the proper legal understanding of the applications for leave, and it said that the nature of the leave is discretionary.

I think that fits with common sense understanding because there is no right to have the merits reviewed.

Otherwise, it wouldn't make sense to say the application were discretionary if a defendant would have a claim to have any error corrected.

Otherwise, he would have a claim on the court of appeals.

The court of appeals has full authority to make the determination that even if everything alleged is true, it's not going to correct the error.

Justice Breyer: Look, this is what I'm... I'm interested in.

It seems like Michigan is unique here.

Why not do, if you're worried about resources, what other States have done?

You just say, okay, of course, you have a right to an appeal and, of course, you have a lawyer.

We'll give it to you if you're poor.

But, by the way, if you want to plead guilty, we're not entering into that deal unless you waive it.

Mr. Restuccia: Well, I think that, in a way, Michigan provides a... a greater protection by enabling itself.

What the court of appeals is essentially doing with its review is for the... for a case where there's a... an... an egregious set of facts, it can reach in and grant an application and review it on the merits.

It's a... it's... it's a kind of a determination about resource allocation, making kind of the hard choices about policy decisions that States have to make.

Justice O'Connor: Is this a case where it would meet the standard for granting leave to appeal?

Mr. Restuccia: No.

This... for... for Mr. Halbert--

Justice O'Connor: Because of the error in scoring?

Mr. Restuccia: --In fact, anyone who's very familiar with the Michigan guideline system would recognize that Mr. Halbert, if anything, received a break in the scoring of the guidelines.

That... that ultimately the Offense Variable 13 is a very easy answer to why it was properly scored.

Justice O'Connor: You take the position that in fact there was no error in scoring.

Mr. Restuccia: No.

The... there was no error in scoring.

The Offense Variable 13 claim relates to three... whether the defendant had committed three... three offenses against a person within the... within 5 years.

Michigan allows a determination based on preponderance even if there was no conviction entered.

Mr. Halbert was a serial child molester who admitted to having sexually assaulted his 14-year-old stepdaughter, a 10-year-old girl, a 6-year-old girl.

All that information was in the presentence investigation report.

There was no objection to the scoring of Offense Variable 13 because he admitted to the sexual assault.

There was... it was never raised--

Justice Stevens: I thought at page 36 of your brief that you agreed that he made a correct... that there was an error in... of application.

Mr. Restuccia: --Right.

The Offense Variable 9 was... there was an error with respect to that, but it wouldn't affect the ultimate position he would be placed in the... in the brackets.

In fact, the only error that did occur that would have affected the scoring was one in his favor, which would have put him... put him in a higher bracket.

So he in fact--

Justice Stevens: So there were at least two errors.

How they balance out I guess is your view they didn't hurt him at all.

Mr. Restuccia: --Well, in fact, if anything, helped him.

But on a more basic level--

Justice Stevens: Is that correct?

There were two errors in the--

Mr. Restuccia: --Yes.

Justice Stevens: --at least.

Mr. Restuccia: Yes.

Justice Stevens: And he contends there were two more, and that hasn't been resolved.

Mr. Restuccia: That's... that's right, but I... I think those claims are--

Justice Stevens: So at... at least we have to assume that it was not an error-free sentencing proceeding.

Mr. Restuccia: --Yes.

Well, more importantly, the kinds of issues at play for the sentencing cases are all like this.

They... they relate to the minimum sentencing.

Michigan systems then determine from a maximum... from a minimum to a maximum which will get a... a range of time.

All the... these sentencing guideline cases relate to the minimum sentence.

For Mr. Halbert as a sex offender, this is really a question about when he will be eligible for release from the Department of Corrections.

He's going to be facing 30 years because all the sentences in Michigan are set by the statute.

So these arguments relating lesser liberty--

Justice Stevens: May I ask another question?

Am I correct in assuming from the order entered on page 43 of the joint appendix that even though there were lots of errors there, the fact that they were not raised until after December 11th would have precluded review at the trial court level?

Mr. Restuccia: --No.

His... the point of the trial court there was that the defendant, if he wanted to withdraw his plea, should have raised that before the sentencing itself because the court has discretion before sentencing to let him out of his plea.

After sentencing, he has to show that the plea was invalid.

So his time... he was untimely trying to withdraw his plea because he was concerned about consecutive as against concurrent sentences.

In... in summary, the... the Michigan system... the... with the limited date to the review and the kinds of issues from plea-based convictions that are at issue are not... are lesser liberty interest questions because they have to do with amount of punishment.

The Michigan system extends the relationship of trial counsel to the defendant and asks the trial counsel to raise the motions regarding post-conviction motions which will enable him to have a factual record from which to advance his claims.

He's not left to shift for himself, that there is a counsel appointed to identify those meritorious claims--

Justice Stevens: But if the counsel happens to be incompetent, that's the end of the ball game.

Mr. Restuccia: --And that's always the circumstance for a defendant who's bringing a discretionary application where his prior counsel was ineffective, that he can be left to identify the meritorious claims on his own and to make the argument of ineffective assistance of counsel.

That's true in Ross as well where your first... where your first appeal as of right, your... your appellate counsel is incompetent.

You're going to be left to identify those meritorious claims, raise the issue of ineffective assistance of counsel, and to try to avoid procedural bars that you'll be facing.

Every system is going to have to draw that line and to say that at some point you're not going to get appointed another attorney.

Just because there's access to the system doesn't mean there always has to be another attorney appointed.

Otherwise, the point is that you would have to have two attorneys make a review on your case, whereas there is no right to an appeal here that this Court has recognized that ultimately where there... since there is no right to appeal, that he had an opportunity to have a trial counsel--

Justice Stevens: But, of course, if he had had paid counsel, he would not have had these handicaps.

Mr. Restuccia: --That's right, that the... there is some advantage, but that's not the ultimate--

Justice Scalia: Competent paid counsel.

Mr. Restuccia: --Thank you.

Argument of Gene C. Schaerr

Chief Justice Rehnquist: Thank you, Mr. Restuccia.

Mr. Schaerr, we'll hear from you.

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

Like the Sixth Circuit's invalidation of this Michigan statute in the Tesmer case, petitioner's attempt to invalidate that statute here runs counter to this Court's longstanding tradition of deference to the people of the individual States and to their legislatures in the design and implementation of their criminal justice systems.

As the Court said in Coleman v. Thompson, a case like this is a case about federalism because it involves the respect that Federal courts must pay to States and the States' procedural rules.

Respect for the State's choices is especially important here because, as the Court put it in Medina v. California, preventing and dealing with crime is much more the business of the States than it is of the Federal Government.

Therefore, the Court said we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States.

And... and as to the question of... of when to provide State-paid counsel, as Justice O'Connor reminded us in Murray v. Giarratano, that's a choice that should be one of legislative choice, especially since it involves difficult policy considerations and the allocation of scarce legal resources.

Justice Breyer: Now, I take it that the basic rule that we've followed... and this is what people are arguing about... could be a criminal trial or proceeding, plea, something in a trial court.

Mr. Schaerr: Right.

Justice Breyer: It emerges with a judgment, and then there is going to be the first review.

Call it a leave to appeal, call it an appeal, call it whatever you want, but it is the first review.

And in those two instances, State, if the defendant is poor, give him a lawyer.

That's simple.

That's clear.

Everybody could understand it.

They may not even have a lot of legal arguments.

Now, what significant... what does that prevent a State from doing that it's reasonably important for a State to want to do?

Mr. Schaerr: Well, again, Justice Breyer, it's a question of allocating scarce legal resources.

If you... and this case is a perfect example of that.

This case is not... does not involve an appeal as of right.

It involves a discretionary appeal, and... and that's the vast bulk of... of appeals that are addressed by the... by the Michigan Court of Appeals.

So if you impose here on the State of Michigan an obligation to provide counsel in all of those cases, you are, in essence, forcing the people of Michigan to reallocate their legal resources away from other cases or you're requiring the legislature to increase taxes to pay for that... to pay for that--

Justice Breyer: Is there any other State that's done it the way Michigan has?

Mr. Schaerr: --I don't believe there's another State that's done it exactly the same way.

But I... but I would point out... and I think this is important, Justice Breyer... that... that at least according to the Michigan Supreme Court in the Bulger case, the majority of States don't allow any appeal at all from a plea-based conviction.

21 of them rule it out entirely and expressly, and another 17 effectively rule out appeals from plea-based convictions by... by allowing prosecutors to impose that... impose a waiver as a condition of entering into a plea.

So... so the relevant universe for comparison is quite small here.

It's really 12 States at most, and... and Michigan sort of fits within the middle of those States in terms of the amount of resources that it provides and opportunities that it provides.

Justice Stevens: Are you saying... I just want to be clear... that even if this defendant had had paid counsel, he would not have had any right to appeal to the intermediate court?

Mr. Schaerr: That's correct.

It... it's discretionary, and that's clear not just... not just from analysis of the... of the Michigan courts' opinions, but from the provision of the... of... but from the constitutional provision that... that created this entire controversy, which was added in 1994.

It's article I, section 20.

And that constitutional provision itself draws a sharp distinction between appeals of right and appeals by leave of court.

So even if the Michigan courts wanted to have a system of... of mandatory appeals, they're now precluded by the Michigan constitution from doing that.

And so... and so clearly, if this Court adheres to the sharp distinction and... which I think is equally sharp and clear, that this Court has made between... between appeals of right and discretionary appeals--

Justice Ginsburg: But it's not that... it's not that sharp because it was... in Ross, it was the second appeal.

So here we have one factor that is like Douglas, Griffin, and one factor that's like Ross.

You can't say that it falls in one camp more than the other.

This is the first-tier appeal.

Mr. Schaerr: --I... I understand, Justice Ginsburg, but... but that's not the distinction that I understand this Court's decisions draw.

Several times since Douglas and Ross, this Court has said that the right to paid counsel addressed in Douglas extends only to the first appeal of right and no further.

And that's... that's Coleman and... and Finley, among others.

Justice Stevens: Of course, the question is whether the words, of right, were essential to that statement.

Mr. Schaerr: I... I'm assuming that the Court was being careful in its... in its choice of words, and I believe it was because that... that--

Justice Stevens: Because then it wouldn't have needed to include the word first.

Mr. Schaerr: --I'm sorry?

Justice Stevens: But then the word first was redundant, not the words, of right.

Mr. Schaerr: No, I don't--

Justice Scalia: You can have two appeals of right--

Mr. Schaerr: --That's right.

Justice Scalia: --I suppose if you wanted to.

Mr. Schaerr: That's right.

Now, so... so the real question here, with regard to the right to paid counsel, is does it make sense to extend what the Court did in Douglas to this new situation.

We think it does not.

This Court's decisions, Ross and Justice Kennedy's concurrence in... in Murray, as I recall, draw... draw a distinction between the removal of barriers that the State imposes to the exercise of litigation rights on the one hand and, on the other hand, subsidizing, affirmatively subsidizing litigation rights--

And... and I think this Court's care in distinguishing between appeals of right and discretionary appeals reflects a desire to cabin Douglas and... and to avoid any further excursions into the area of subsidies.

And we think that's a... we think that's... we think that's good as a matter of policy for the Court to do that, for one thing--

Justice Souter: May... may I ask you one thing lest we forget it?

Is... is your argument premised on the assumption that a refusal to hear an appeal is... is not regarded as a determination on the merits and thus--

preclusive?

Mr. Schaerr: --No, I don't think so.

I... I think that helps the argument.

But in fact, there are lots of discretionary appeals or discretionary appellate proceedings that... that do result in decisions on the merits.

This Court, for example, sometimes summarily affirms or reverses on cert, and the fact that the Court does that doesn't create--

Justice Scalia: Well, we accept cert before we do that.

I thought the question was that the denial of an application for appeal does not have any merits consequence.

Wasn't that the question?

Justice Souter: Yes, yes.

Justice Scalia: Does the denial of an application for appeal have any merits consequence?

Mr. Schaerr: --Well, as... if... if that's the question, I... I would defer to... to Michigan counsel--

Justice Souter: No. But I'm asking whether that's a premise of your argument because the consequences of your argument are going to be very different depending on whether that is the premise or whether it isn't, whether that premise is true or whether it isn't.

Mr. Schaerr: --I... I think the distinction is... is not necessarily whether the decisions are on the merits or not.

I think the distinction is between appeals of right and... and appeals that are discretionary.

Justice Scalia: If it's always on the merits, it's an... it's an appeal of right, it seems to me.

How can you have a... a discretionary appeal which always decides the merits of the case?

Mr. Schaerr: Well, I... in... in fact, I don't think that's what happens in Michigan, and... and I think the--

Justice Souter: So your... the assumption of your argument is that it is not on the merits.

I. e., it is not a merits determination if there's a denial and hence there is no preclusion.

Mr. Schaerr: --I... I think that's true.

Whether it's an assumption of the argument, I'm not... I'm not so sure.

Justice Breyer: You're talking about a piece of paper, that first piece of paper saying to the appeals court, appeals court, please hear my appeal.

Mr. Schaerr: Right.

Justice Breyer: And then it lists a whole lot of reasons like a cert petition.

Mr. Schaerr: Right.

Justice Breyer: And those are likely to do with the merits of the case.

I mean, they'll tell all the horrible things that went on.

And the question is, is he going to have a lawyer to help him with that piece of paper or not?

Mr. Schaerr: That's right.

Justice Breyer: All right.

Now... now, it sounds to me just the kind of thing you'd write if you had an appeal on the merits too.

No.

It's even harder.

Even harder.

You've got to convince them to take it.

Mr. Schaerr: It... it is more difficult, but... but the disparity between--

Justice Breyer: So why draw that distinction?

The piece of paper is the same, even harder to write, needs the lawyer as much, first chance he gets after the trial court.

Why draw that distinction?

Mr. Schaerr: --Well, again, because... because if you... if you broaden the right to State-paid counsel, as... as in Douglas, you're going to require States to... to reallocate resources to that priority and away from other priorities.

Also, if you... if you subsidize litigation in the name of providing adequate access to courts or meaningful access to courts, then there's going to be a lot of litigation in the lower Federal courts about exactly how much of a subsidy is necessary reach that standard.

And also, if... and this is particularly important here I think.

If you require States to subsidize the exercise of a right that they're not required to provide in the first place, like the right to seek review of a... of a plea-based conviction, then you give the States a strong incentive to cut back on or eliminate that right altogether.

And... and, you know, who knows?

But perhaps that's what's going on in the... in the trend in the States away from providing this right.

Thank you.

Rebuttal of David A. Moran

Chief Justice Rehnquist: Thank you, Mr. Schaerr.

Mr. Moran, you have 3 minutes remaining.

Mr. Moran: Thank you.

I have to begin by correcting several misstatements of fact and of Michigan law.

First of all, Mr. Schaerr just said that only a dozen States, I believe, allow for appeals from guilty pleas.

That's not correct.

Every State in the United States currently allows for appeals from guilty plea... pleas.

The Bulger case did say that.

They cited a--

Justice Kennedy: Appeals as of right?

Mr. Moran: --Not necessarily.

As I cited in my brief, a number of States allow for applications or petitions from guilty pleas, but every State has a first tier direct appeal from guilty pleas.

The Bulger... the Michigan Supreme Court in Bulger cited a... an article from an Arizona Attorney magazine that was simply incorrect on that.

Secondly, on the issue of what is the effect of a order denying leave to appeal for lack of merit on the grounds presented, the State continues to rely on McKenzie v. Smith, an earlier Sixth Circuit opinion, People v. Berry, and Bobenal v. Saginaw Investment.

None of those cases uses the phrase, lack of merit on the grounds presented.

That phrase does not appear in any of those three cases.

The Berry and the Bobenal cases, those are Michigan Court of Appeals cases before 1981. Beginning in 1981, in a series of three cases, People v. Douglas, People v. Hayden, and People v. Wiley, the Michigan Court of Appeals held unambiguously that our orders denying applications or remand orders, in that case, for lack of merit on the grounds presented, was law of the case.

Justice Scalia: What's the effect of the constitutional provision then?

Mr. Moran: I'm sorry?

I... I don't--

Justice Scalia: If that's so, what is the effect of the constitutional provision that Mr. Schaerr read?

Mr. Moran: --The Michigan constitutional provision?

It changes the way in which guilty plea appeals proceed.

Before 1994, there were other types of appeals that had to proceed by application for leave to appeal, primarily latent appeals.

If the appeal was filed too late, it had to proceed by application for leave to appeal.

In 1994, as a result of the constitutional amendment, guilt plea appeals now have to proceed by application for leave to appeal.

That's constitutional.

We have no problem with that, and that is the method by which the caseload management problems have been solved.

They have been solved.

Justice Scalia: I... I... you... you have the wrong one.

I meant the one that said that applications to the court of appeals are... are... require leave to appeal.

What's the effect of that?

Mr. Moran: The... I assume you're still referring to article I, section 20 of the Michigan constitution.

Justice Scalia: Yes.

It says that for the court of appeals, you need leave to appeal.

I thought they were doing something there.

What were they doing?

Mr. Moran: They were saying that first-tier felony appeals in Michigan following pleas require leave of the court, require an application for leave to appeal, like latent appeals from trial cases do.

But all of those appeals are still decided on the merits with preclusive effect for law of the case purposes.

And the Sixth Circuit specifically dealt with that in... in the Abela case.

McKenzie v. Smith never... never mentions anything about the lack of merit in the grounds presented.

The resource allocations point is simply that not all of these guilty plea appeals are... lead to full argument and full briefing, and that's fine.

Michigan can do that.

But what Michigan cannot do, as a result of Ellis and Douglas, is for that first gatekeeping part of the appeal, which is where the court has to decide is there merit in this case, to make the indigent shift for himself.

And so in... in Smith v. Robbins, this Court, specifically referring back to the Ellis case, said that the problem that the Court identified in Ellis and that became part of the constitutional minimum in Douglas, was that the old California procedure did not require... I see my time is up.

Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Mr. Moran.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Smith v. Robbins - Oral Argument

Fri, 09 Jan 2009 14:50:20 +0000

Case:

Smith v. Robbins

Media File:

98-1037_19991005-argument.mp3

Related Transcript:

1999_98_1037_argument.xml

Transcript:

Argument of Carol F. Jorstad

Chief Justice Rehnquist: We'll hear argument next in Smith v. Robbins.

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

This case concerns one of the hardy perennials of American law, what to do with a meritless criminal appeal when that appeal is brought by an appointed lawyer on behalf of an indigent client, and what the standard of reversal in such cases should be.

This Court addressed the problem in Anders v. California, holding that the indigent appellant in that case had his equal protection and due process rights to counsel on appeal violated by California's conclusory no-merit letter.

Anders has two component parts.

The first is the identification of the constitutional rights at stake, and the second is the setting forth of a procedure by which those rights can be vindicated.

The Ninth Circuit thinks that the Anders framework, the second part, is compulsory.

We think not.

In fact, we believe that the Ninth Circuit's insistence on rigid, programmatic adherence to that procedure has undermined California's legitimate efforts to provide effective assistance to indigent appellants.

The second issue is whether the Strickland test for ineffective assistance should apply to meritless indigent appeals.

Federal habeas is intended to guard against extreme malfunctions in the State procedure.

Ordinarily, Federal courts presume the regularity of State court judgments, but not in no-merit cases.

In those cases, prejudice is presumed.

This is presents problems, because it is altogether too one-sided, and because it turns the presumption of regularity on its head.

A presumption of prejudice should be reserved for cases where the error is so systemic that it's impossible to judge what the harm is, and the examples given generally are those of judicial bias and actual denial of counsel.

We urge that Strickland be adopted to bring this one anomalous situation into conformity with other cases where deficient performance by counsel is urged.

Justice Souter: Ms. Jorstad, the problem that I have with that is not a theoretical problem, but kind of a practical one, and that is this, that if we require a demonstration of Strickland prejudice at the habeas stage, once there's been found to be an Anders violation, if we require the demonstration of Strickland prejudice at that stage, as a practical matter, what we are going to do is require the argument of the appeal in the first instance in a Federal court.

And number 1, that's going to take some serious time, and the oddity... when you get to standing on head argument, the oddity is that you're going to have your appeal argued in the first instance in a Federal court, whereas in the first instance it shouldn't be, so for pragmatic reasons it seems to me that there's an argument that it makes a lot of sense to say that once you have shown the Anders violation, and let's say, to go... I'd go this far for the sake of argument.

Once you've shown that there's a possibility that there could be a difference, that there might be some merit, that's as much as you should require, or in effect you're going to turn Federal courts in habeas cases on Anders into State appellate courts.

Mr. Jorstad: Justice Souter, I believe that that's not an overall concern.

I think if we look at this in the context of merits briefs, where counsel raises one or two or three issues, but fails to raise one or two or three others, the Federal courts are in much the same position.

They're going to have to look... in a Strickland context, there is no presumption of prejudice, but in a Strickland context they're going to have to look at these other issues that will be asserted on Federal habeas, and of course, they should have been exhausted in State court as well, so it won't be the first time.

Chief Justice Rehnquist: Ms. Jorstad, doesn't the strength of your second argument on the prejudice and so forth from Strickland depend to a certain extent on whether we agree with you that the constitutional rights for the appellants discussed in Anders do not require that the particular Anders remedy be etched in stone, that other remedies would be equally effective?

Isn't that going to influence somewhat the outcome of the Strickland analysis in the second prong?

Mr. Jorstad: Yes, it is, Mr. Chief Justice.

Our position on this matter is that the first component of Anders, that is, the rights to be vindicated, is strictly constitutional.

It goes to effective or ineffective assistance, and can always be raised in Federal court.

The second part of Anders, this prophylactic framework, is not constitutional.

This is a matter of pragmatic suggestion by the court in Anders, and we believe that these rights can be vindicated.

After all, what we're talking about is effective assistance of counsel, we're talking about equal protection, and to a lesser extent, due process, and the laboratory of the States should be allowed to develop these procedures in ways that make sense in those States, as long as they vindicate the underlying rights.

Justice Souter: Do you believe as a general proposition that, if this Court identifies a constitutional violation, and says the way this violation is to be avoided in the future is to follow steps A, B, and C, that any court, State or Federal for that matter, is free to say, well, we really don't like A, B, and C, we'll try C, D, and F?

Do you believe that the lower courts are free, when we have come up with a pragmatic constitutional solution and says, this is the way it is to be avoided, are they free to ignore that?

Mr. Jorstad: I certainly don't think that any court is free to ignore this Court, but I would say that lower Federal courts certainly seem to me to be obliged, because of this Court's supervisory powers in addition to its constitutional jurisdiction, to follow whatever procedure this Court sets forth, but it has been the custom over many, many years for State courts to have some flexibility in interpreting this Court's procedural suggestions...

Chief Justice Rehnquist: Do you think this Court is free to interpret its own opinions to decide that perhaps a suggestion in the opinion, or a formula, was not mandatory but could be replaced by an equally acceptable one?

Mr. Jorstad: I do, Mr. Chief Justice.

I do.

Justice Souter: But if it is mandatory, what's your answer then?

Mr. Jorstad: But if it is mandatory?

If it is mandatory, if, in fact, this Court said what it meant and meant what it said in Anders, and if this court holds that as a matter of constitutional law that procedure were required, then California is not in compliance.

Justice Scalia: I thought we... we don't mandate anything.

We're not like a legislature.

We don't issue prescriptions.

I suppose the only real holding in Anders, the only holding in the actual case was that what occurred there did not comply with the Constitution.

Mr. Jorstad: I would agree with that.

Justice Scalia: And the further statement that in order to comply with the Constitution you have to do this, this, this, and this can be regarded as dictum, which you would be well-advised, if you're a lower court, to follow, but I'm not sure that a legislature has the obligation to follow that prescription as though we were laying down a prescription.

We decided in Anders that what occurred there did not provide effective assistance of counsel.

Mr. Jorstad: Yes, Your Honor.

In fact, what was decided in Anders was that it didn't provide counsel at all and, of course, Anders antedated Strickland by 17 years, so there was no real test for prejudice in that case.

California took Anders very seriously, and so... and People v. Feggans followed it very, very closely, but over time, things changed, and what has happened in the last 32 years and even less, really, is that California's system for providing representation to indigents has become more and more sophisticated, has become more established.

This is not a situation any longer.

There is no indigent in the State of California who will be represented by some solo lawyer who crawls out of the woodwork.

Everybody is responsible to the Appellate Projects.

The Appellate Projects actually seek out lawyers, they train them, they match lawyers...

Justice O'Connor: Well, but I guess... why don't you help us understand what the California procedure is.

A lawyer there representing an indigent defendant can find... can conclude that he finds no valid grounds for overturning the appeal, and just write something to the court saying that, but not asking to withdraw, and not pointing out any arguable issues.

Mr. Jorstad: Let me...

Justice O'Connor: Is that right?

I mean, that's acceptable.

That's what happened here.

Mr. Jorstad: No, it is not, Your Honor.

I think that's...

Justice O'Connor: I thought what happened here was that the lawyer found no grounds that he thought justified going further, and so advised the California courts, and did not ask to withdraw, and did not point out any so-called arguable issues.

Mr. Jorstad: If I may recap, that's I guess correct as far as it goes, but there are other aspects to it.

When the lawyer has decided that there's no merit to the brief, and when his appellate supervisor, his Appellate Project supervisor, who's an expert, concurs, he may file a brief under California procedure in which he sets forth a detailed statement of the case and statement of the facts with citations to the record which help the court to know that the record has been read and considered.

In the record, in the brief filed in this particular case, counsel mentioned in his statement of the case that there had been a Faretta motion, that the appellant's competency had been tested, and that there had been two so-called Marsden motions.

In California they're for replacement of counsel.

So those issues were kind of identified in the statement of the case.

In addition, you're correct in saying, Justice O'Connor, that he does not withdraw, and he asks the court... he also does not, pursuant to the Wende case, argue against his client.

What he does is to ask the court to make an independent review.

This allows the court to look at the record without having a list of issues that counsel has read, researched, and rejected.

The idea here is to have the court take a fresh look, and that is in fact the holding of Wende, is that an independent review by the court is required.

Justice Kennedy: Now, does the appellate... does the counsel for the Appellate Project continue to participate at that point, or does he stand aside, just as the attorney stood aside?

In other words, the retained attorney consults the lawyer for the California Appellate Project, and that lawyer concurs with the judgment that there should be a Wende brief.

Is that Appellate Project lawyer now out of the process, or does he continue to assist the court?

Mr. Jorstad: No, he would not assist the court, Your Honor.

I think the main thing to be aware of in the California system is that the effort is to have the advocacy come at the front end.

There's something like the Emperor's new clothes about saying vigorous advocacy in the context of a brief that's decided... that they decide has no merit.

Justice Breyer: Yes, but the thing I wonder... I think California has a pretty good system, frankly, and if I were designing one, maybe it would be California's, but the problem that I see is that we have an adversary system, basically, in the country and Anders says, you have a right to a lawyer, criminal defendant, and you have a right, as part of that, to have the lawyer think through on appeal what are his best arguments.

Now, we want him to go through that process, write down what his best arguments are, and if he thinks they're still no good, tell us why.

That's part of what it is to be an advocate, and that's part of what it is to be a lawyer, and that's part of a right to a lawyer that you have.

Now, given our adversarial system, why not?

Mr. Jorstad: Your Honor, first of all I would say that I certainly agree that the... that any appellant has a right to a conscientious and diligent lawyer who looks for issues.

The question really, and the point of controversy really is, what is that lawyer to do when he can't find any, there's nothing there, and there are cases like that.

There simply is nothing to raise that would not be violative of...

Justice O'Connor: Well, here the Federal courts apparently concluded that there were some issues that ought to be raised and litigated.

Mr. Jorstad: Nobody... well, first of all, I would have to say that there have been two issues raised in this context, and I think both of them are, frankly, the definition of frivolousness.

The first was, there was a complaint... well, no, there was not a complaint.

The district court itself essentially raised the issue of the law library and its adequacy.

The... I had said all along that the law library only came up in the context of the judge's Faretta warnings to Mr. Robbins telling him all of the parade of horribles that he would face if he went pro per.

Justice Stevens: But wasn't the issue... not the original Faretta, but later in the proceeding it is argued, I don't know if the record supports it, that the defendant made known a desire to have assistance of counsel later on...

Mr. Jorstad: That's absolutely...

Justice Stevens: and that is not mentioned at all in the, what would pass as an Anders brief by the lawyer.

What is mentioned is the original threat of going.

Mr. Jorstad: Yes.

Well, let me...

Justice Stevens: And also...

Mr. Jorstad: I'm sorry.

Justice Stevens: I don't see that his statement did mention that another lawyer in the public defender's office reviewed what he'd done.

Mr. Jorstad: It did not.

Justice Stevens: It didn't.

Mr. Jorstad: Actually I don't think that's true.

I...

Justice Stevens: So we don't know from the record whether that was actually done, do we?

Mr. Jorstad: Yes, Your Honor, we do, because there was a declaration by counsel, and I believe it's in the joint appendix... yes, at page 43.

This was filed in the district court, and he said prior to the filing of briefs I consulted with the California Appellate Project and received their permission to file a Wende brief.

Justice Stevens: But we don't know what the appellate... he asked permission to file, and he got permission.

Mr. Jorstad: Yes.

Yes.

Justice Stevens: But it doesn't show that the Appellate Project read through the record again.

Mr. Jorstad: It does not.

We do have the rules, and we do have the very excellent brief of the California Academy.

Chief Justice Rehnquist: What are the rules, Ms. Jorstad.

Mr. Jorstad: I don't know the rules verbatim, but they provide for supervision, review, and concurrence on no-merit briefs.

I would like to add that...

Justice Kennedy: Can you tell us... take us through, because I want to get to Justice Breyer's question again, after the Wende brief is filed, then I take it that the district court of appeals has a staff that looks at this brief and talks with the court about it, is that right?

Mr. Jorstad: Either somebody on the attorney's staff or a justice reviews the entire record from scratch.

Justice Kennedy: Now... now, as Justice Breyer indicated, that's an interesting system.

It's not really the adversary system.

Mr. Jorstad: I think, again, to return to an earlier theme, that it only really makes sense to talk about an adversary system if there is some basis for adversarial representation.

If there is no merit, a lawyer in California and in most other jurisdictions cannot raise a frivolous issue.

Justice Ginsburg: Ms. Jorstad, one thing that is bothering me about this argument is, it's a kind of a trust-me argument.

There is something disciplined to writing out reasons why I have concluded that although these issues I could identify, they are not worthy of the court's attention.

The discipline of saying why, explaining why, it's just like for a court.

A court has to give reasons for what it does, and sometimes, in writing out those reasons, one discovers that something isn't right, that it won't write, so the discipline that a lawyer has to go through in saying, this is my thought process, this is how I arrived at the conclusion, then none of that appears.

None of that appears on the record.

We haven't got a clue.

And something else, too, frankly, that bothers me is, the notion that there is a judge who's going to read through this whole record in these no-merits cases doesn't comport with reality.

Isn't the reality that there's going to be some staff counsel, not even a law clerk to the judge, who is going to read this and present it to a panel and say, no merit?

Mr. Jorstad: Let me take those two questions seriatim.

As far as the discipline of writing down why the issue is no good, I think if we try to step back a little and look at what's the basis for requiring that might be, we're talking here about the right to counsel, and we're talking about mostly equal protection.

If you analyze this as a matter of equal protection, it would simply never be true.

I can say categorically that retained counsel would have to explain to the court why he failed to raise the issues he doesn't raise, nor would appointed counsel, who raises... you know, even if counsel in a merits brief raises a single extremely marginal issue, that counsel would never have to say to the court, here are the other issues I considered, and here are the cases that say why they're no good.

It just doesn't happen.

What I'm suggesting is that we do have... Justice Ginsburg, you said, trust me, and I think we should afford similar trust to lawyers who write no-merit briefs that we give to lawyers who write merits briefs, and specifically I would point out that under the current system it takes a lot of courage to write a no-merit brief.

Now, first of all, I would also add that it's not as if the lawyer who presents a no-merit brief can just kind of write it off and hand it in and go away with his money.

He has to justify himself to the Appellate Project.

The Appellate Project is going to give it and him an advocate's review.

They're going to give very close scrutiny, and they are going to know things that no court will ever be able to know, because they may be told in confidence by the client...

Justice Stevens: I think you could have said the same thing about the certificate in Penson v. Ohio.

Maybe they didn't have a second one look at it.

Why don't we trust... why wouldn't we trust that lawyer?

Mr. Jorstad: Well, I mean, I certainly... I guess that's possible.

I would say that Penson v. Ohio, the...

Justice Stevens: The only difference between the... his certificate and the certificate in this case is, you've also got a statement of facts here.

Mr. Jorstad: Your Honor, this is... no, Your Honor, that's... there are other differences.

First of all, in Penson the attorney did write just a certificate.

I would suggest to the Court that what California does is far more than that.

The statement of a case, the statement of the facts is a guarantee that somebody's been through that record and knows what's in it, and isn't just filing a letter out of laziness.

That's one thing.

A second thing is that in Penson the lawyer was really, really wrong.

That is to say, he was... he said there were no issues at all.

The court, after having dismissed him, found a number of issues and, more importantly, found a single issue which resulted in the reversal of a count, a big mistake.

Now, Penson I think would have come out the same way if there had been a Strickland test as a presumption of prejudice, but it's very, very different, because in Penson the, really the largest fault was the court's, and that is in failing to appoint counsel once they knew that the first counsel had missed big, arguable issues.

That would never happen in California.

In California... and it was in Penson the State reviewing board itself which found the errors and failed to appoint counsel.

In California, if a State... if the State court finds that there are issues that should have been raised, even counsel who has not yet been dismissed, or a new counsel in some cases will be appointed and has to brief those issues.

Chief Justice Rehnquist: Has that ever actually happened in California?

Mr. Jorstad: Yes, Your Honor.

Yes, it has, and I would like to say, Justice Ginsburg, that unlikely as it may seem, I have pretty good reason to believe that judges and/ or their research attorneys do, in fact, go through these records.

It's a terrible burden, and the way...

Justice Ginsburg: Some or uniformly?

Mr. Jorstad: I'm sorry?

Justice Ginsburg: Some, or uniformly?

Mr. Jorstad: Well, I can't speak for the entire bench in California, but I do know that we have reported decisions, published decisions in which judges complain bitterly about the amount of time... I mean, they're not happy, all of them, to be doing this work.

Justice O'Connor: Ms. Jorstad, wouldn't it be helpful to the court to have an explanation of arguable issues and why they were rejected?

I mean, if I were assigned the task of going over these records, I would think that would be a good starting point for me.

I'm just surprised that California is resisting having such a system.

Mr. Jorstad: Well, Your Honor, it's interesting, because both sides of the... not both sides of the bench, but both sides of the bar, both the people and the defense, feel the same way about this.

I think that when you talk about having reasons stated to the Court for issues that have been rejected, again we need to look at what constitutional interest would be satisfied by that.

If we're talking about the Sixth Amendment, or about equal protection, I don't think that that answers those things at all, because in fact a client...

Justice O'Connor: Does this record have any statistics or figures on how often these no... these Wende briefs are filed in California, percentage wise?

Mr. Jorstad: As of a few years ago it was in roughly 20 percent to, maybe, in some districts as much as 25.

Justice O'Connor: And do the statistics also tell us how often under a Wende procedure the courts would actually find arguable issues on their review and send it back?

Mr. Jorstad: They do not, Your Honor.

It does happen.

I've seen it happen.

I started to say a little bit earlier, I think in answer to Justice Ginsburg's question, that it takes a lot of courage under the current system to file a Wende brief.

These...

Justice Souter: Well, it takes a lot of courage, but one countervailing consideration, I take it as a general matter, the enormous workloads that the assigned counsel are laboring under, and that seems to me one of the distinctions that goes to the analogy you tried to draw between the situation of normally retained paid counsel and the counsel who are subject to Anders.

I mean, am I missing your point?

Mr. Jorstad: I believe you are.

Justice Souter: Tell me, then.

Your expression tells me I am...

Unidentified Justice: [Laughter]

Justice Souter: but I'm not sure where I have done it.

Mr. Jorstad: The counsel who are appointed by the court... or, excuse me, appointed by the Appellate Projects, and that duty is delegated by the courts, don't have enormous case loads, at least from the Appellate Project, because the work is divided up and I think a reasonable workload is assumed and, of course, whatever the workload is for these people who file no-merit briefs, the same could be said for people who are filing merits briefs.

We don't monitor them.

We shouldn't monitor these folks.

Justice Souter: Well, yes, but except that if they're normally retained counsel, number 1 they don't have an inducement to give short shrift to issues which they could litigate and be paid for litigating, and number 2, I had supposed that as a group they were more likely to be able to control their own work loads and not take more than they could handle.

Mr. Jorstad: I think, Your Honor, that these attorneys are equally as well able to control their work load.

They are not, as is true in the Attorney General's office, a member of an office where the work load is what it is and comes at you the way it comes at you.

They...

Justice Stevens: May I ask if you disagree with the representations made in the amicus brief filed by the retired California judges, who say the system isn't working very well?

Justice Kennedy: I was going to ask the same question.

These are very distinguished judges.

Mr. Jorstad: Yes, they are.

Justice Kennedy: Do they just disagree as a matter of policy, or are they making a constitutional argument?

Mr. Jorstad: Thank you for asking, Justice Kennedy, because that is the point of this brief.

They don't like the procedure very much, these particular judges, and the thing they don't like about it is, they say it's inefficient, they say it makes the court work too hard, they say it's a waste of resources, but in fact, if you look at that brief, there is no claim that there's any constitutional deficiency in California's procedure.

If I may, I'd like to reserve the rest of my time.

Chief Justice Rehnquist: Very well, Ms. Jorstad.

Mr. Jorstad: Thank you.

Argument of Ronald J. Nessim

Chief Justice Rehnquist: Mr. Nessim, we'll hear from you.

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

I would like to begin by making three points.

First, both the district court and the Ninth Circuit correctly found that there were arguable issues in this case.

therefore, like the defendant in Penson, Robbins had a right under Douglas v. California to an advocate's brief on the merits.

Second, Robbins' State appellate attorney did not file a proper Anders brief in this case.

This was not a mere technical violation of Anders.

There was no advocacy.

A nonlawyer could have written the brief or document which was filed here.

As the Warden concedes, it does not refer to a single legal issue.

Chief Justice Rehnquist: Well, Mr. Nessim, supposing that under a State which follows the Anders rules, an Anders brief is filed, but... and the State... the Federal court finds that there was some issue that should have been raised, what does the Federal court... can the Federal court examine that on habeas, and if it does find an issue should have been raised, what is the remedy?

Mr. Nessim: I believe the remedy should be prejudice per se, Your Honor, because the Federal court will not be guided by the advocacy process, would not be able... does not have the information, would have to speculate, as this Court has repeatedly found, to make that determination without an advocate's presentation, if there's a finding of an arguable issue that a merits brief is required.

If there's no finding... if... the Federal court may not be in a position to decide if there's an arguable issue with an inadequate merits brief or an Anders brief.

If there's no adequate brief that refers to the issues, the court only has the cold record, and this Court has repeatedly found that that is insufficient for the court to make its determination.

Chief Justice Rehnquist: Well, talk about consuming time, though.

I mean, here the lawyer in the State court on appeal filed a no-merits brief under Anders, and you say the Federal district court, it doesn't have to decide that there actually was any error in the State court proceedings, but only that there was an arguable issue, and then what, it goes back to the State court to have another argument on an arguable issue, without ever finding any constitutional infirmity in the trial.

That does seem going around Robin Hood's barn.

Mr. Nessim: Well, I think Anders is an efficient procedure.

It requires the lawyer to act as an advocate.

The Federal habeas court is unable to make the determination whether the appeal is wholly frivolous, which is constitutionally required, without the assistance of an advocate and, as I think a question was asked during the Warden's presentation, it's efficient to have the State court make the determination in the first instance.

The Federal court's determination was, was there a denial to right to counsel, and this Court has repeatedly found a right to counsel on the first appeal as of right.

In fact, Pennsylvania v. Findley assumes that while Anders may not be mandatory in the case of post conviction or discretionary appeals, it is mandatory where there is such a underlying constitutional right.

Justice Breyer: That's a different question.

I'd be awfully worried about... I agree with the Chief Justice that, suppose... what you're saying is, if lawyer A, who's a good lawyer, perfectly good, it's not inadequate assistance, brings an appeal and leaves out issue 1 in the State court and argues the rest of it.

Issue 1 is gone.

It's waived, unless it was inadequate assistance of counsel, which I assume it wasn't.

You're saying lawyer A did exactly the same thing, but not having found any other issues, he files an Anders brief, which in every other respect is fine, and under those circumstances we have two more procedures, 1) the procedure in habeas court where the habeas judge says, I guess it's arguable, you should have raised it, and then back we go to State court, and this time it wasn't waived.

Now, trying to reconcile that's impossible in my mind.

Mr. Nessim: In answer to your question, Anders requires that there be an advocate on appeal.

In most cases it will be a merits brief, but if the lawyer is unable to do that because of ethical reasons, it requires an Anders brief, and in Penson this Court distinguished the situation between where a lawyer acts as an advocate but acts ineffectively, in which case there's not a presumed prejudice standard, and the situation where there is no advocate at all, and we would submit there was no advocate at all here, because a proper Anders brief was filed.

In fact, of the nine issues that we refer to in our brief, not one of those are even hinted at.

Justice Breyer: That's the other question which I have, a more important question, on which I'm quite undecided.

California seems to me to have a pretty good system, frankly.

I mean, if I were a criminal defense lawyer, I might say they had a better system, because a lawyer who wants to file an Anders brief is not going to be an enthusiast, while the staff attorneys are paid to find those issues.

So to decide for you might require me to decide for a system that's actually going to give the criminal defendant a less-good shot at the appeal, and that's worrying me, so I want to know your response to that.

Mr. Nessim: Your Honor, the aspect of Anders which was criticized in California is the aspect of the independent judicial review, which is independently required by California law.

The Wende case that's in fact one of the two issues they face, they interpret Anders as requiring that.

We would submit to you that the California system, while certain aspects of it are good, and there's no reason that they can't stay under what we promote, they can still have this appellate project system.

I would add that most of the facts concerning that system are not in the record of this case, which was pointed out in one of the amicus files, but more importantly... and I think this is crystal clear... while this case should be decided under Federal constitutional law, the Warden has mischaracterized the California system, and I would refer you to In re Sade C, an opinion of the California supreme court, which does not purport to break any new ground.

It just refers the precedents which were in effect, and it says that Wende... and I'm referring to page 787 of actually the 55 Cal. Rptr. 2d version, but Wende made clear that in such a situation all the steps specified by Anders had to be taken, other than those dependent on filing a motion to withdraw.

The implicit rationale is that for present purposes substantial withdrawal is equivalent to formal withdrawal, and in the footnote there it says that the Oregon court erred in finding that an Anders brief which referred to issues was not required.

So our position is, first of all Federal constitutional law controls, but there is no contrary California system.

If this Court looks at footnote 8 and footnote 22 of Sade C, which does not purport to break new ground, it just refers to California law.

Footnote 22 says very clearly that the brief that was filed in that case, if Anders was to apply... the court concluded that Anders did not apply in that case.

It deals with a custody situation.

But they said that we note that under Anders none of the briefs submitted by appointed appellant counsel would have been sufficient.

Anders brief must contain law as well as facts, although each of the briefs here, and I'm paraphrasing, has facts, none has law.

Justice O'Connor: Well now, let's get down to what you really are complaining about so that I can get this in perspective.

What you say should have happened here is that the lawyer, who found no good issue, should nonetheless have spelled out what arguable issues there might be, even though he didn't think they were sustainable for a legitimate on appeal, right?

You want to see that, you want to see this spelled out.

Is that correct?

Mr. Nessim: Yes, but I think from an...

Justice O'Connor: Okay, and also you want, as I understand it, to require that the lawyer, having filed that, then withdraw.

Is that the other component of what you want?

Mr. Nessim: No, Your Honor.

Justice O'Connor: No.

Mr. Nessim: First of all I think terminology is important.

If the lawyer found arguable issues, then a merits brief is required.

If the lawyer found no arguable issues, and the State had... has an epic system that did not allow the filing of a merits brief in that situation, an Anders brief, which does not argue issues... and Anders does not require the argument of Federal issues.

It requires the reference of those issues, so... and the reason why that's important...

Justice O'Connor: Well, so that's what we're quibbling about, some description of issues that aren't even arguable.

Mr. Nessim: The points served by that, Your Honor, are two, and the Anders court said this.

The Court said it in McCoy and Penson first.

The court is unable to make its determination whether the appeal is wholly frivolous without the assistance of the reference of legal issues.

The cold record is insufficient.

Second, a mere conclusory statement, whether it's a one-sentence or one paragraph in Anders, or the type of brief here, which does not refer to a single legal issue, does not give the court information to make the second determination of whether the attorney was effective, or by...

Chief Justice Rehnquist: What is going to be the reaction of a typical court when it gets the kind of brief you say ought to be filed?

There are six issues here, but they're all frivolous.

Mr. Nessim: The purpose of an Anders brief is not to decide the case on the merits.

Chief Justice Rehnquist: Well, answer my question, if you will...

Mr. Nessim: Yes.

Chief Justice Rehnquist: not just go into some recitation.

Mr. Nessim: If the court receives such a brief, the court will be able to look at those issues and maybe the court will have a different opinion on whether those issues are arguable or not.

Maybe the court will see that this... the court will have some evidence that the attorney was effective.

Chief Justice Rehnquist: If the issues are arguable, he has to file a merits brief, doesn't he?

Mr. Nessim: That's correct, but...

Justice Stevens: Is that so?

Let me... excuse me.

Could I just make this one point?

Chief Justice Rehnquist: Yes, sure.

Justice Stevens: I think McCoy holds to the contrary on that, because McCoy approved the Wisconsin procedure in which, after identifying arguable issues, if the lawyer went ahead and explained why he thought they did not justify a merits brief, that satisfied Anders.

Mr. Nessim: That's correct.

McCoy validated what could be called Anders plus.

Anders requires a reference to issues.

Justice Stevens: Right.

Mr. Nessim: Anders requires, in fact... requires not only a reference of the relevance facts pertaining to those issues, but a reference to the relevant law which pertains to those issues.

Justice Breyer: But I thought the purpose of Anders in part, which you haven't referred to, so I might be wrong, was to say to the lawyer, lawyer, do the following: read the transcript

Now, when you read the transcript, think what is the best argument I could make.

Now, write it down, and then if you want give the reasons why it isn't that great, but it forces the lawyer to go through that advocacy process, and in the course of doing so, he may find some issues.

That, I thought, was the major purpose of Anders, but you didn't refer to that, so maybe I was wrong.

Mr. Nessim: You are correct, Your Honor.

In fact, Penson, explicitly after discussing the two purposes I discussed, said that a third purpose said that it provides an independent inducement to counsel to do what Douglas requires, which is to diligently review the record, research the law, and by putting pen to paper, with that discipline you're much more likely to find an arguable issue than you would if you didn't engage in that process, so it does provide an independent inducement.

Justice Kennedy: But the lawyer in Anders, in the Anders procedure, need not follow the final step outlined by Justice Breyer, which is to say why these arguments are frivolous.

Mr. Nessim: That is correct.

Justice Kennedy: He can say, I hereby certify that the following issues should be examined pursuant to Anders, and then list these things.

Chief Justice Rehnquist: Which means that he thinks they're frivolous, doesn't it?

Mr. Nessim: That is correct, and the purpose is not to decide them on the merits, but you're right.

I think it's more than a listing.

It's a reference of the relevant facts and the relevant law.

I think the Seventh Circuit in many ways has given the most attention of the circuit courts as to what an adequate Anders brief, then Judge Stevens' opinion...

Justice Scalia: It's strange, I suppose there are innumerable frivolous issues that could be found in any case.

I mean, you know, the failure of California to provide a thirteenth juror is a frivolous issue.

How does counsel go... well, yes, he has to identify issues that he thinks do not justify an appeal, correct, but if they justify an appeal, that is, I guess if they're arguable, he has to conduct the appeal, so what he has to list are frivolous issues.

There are innumerable frivolous issues in any case.

I really don't... I don't know what I would do with this if I had to comply with it.

Mr. Nessim: In response to that, first of all we're talking about not... we're talking about issues which appear to be frivolous.

There's been no determination that they are frivolous.

But I don't think Anders requires any conceivable frivolous issues such as a thirteenth juror.

I think that the types of issues which should be identified are those which a trained advocate, and this comes from Nichols, would identify and consider, that a trained advocate would identify and consider in the evaluation of the appeal.

Justice Souter: So he would say, this is as close as I can get to a nonfrivolous issue.

Isn't that what he's doing?

It's a kind of modified issue-spotting.

This is as close as the record gets to a nonfrivolous issue.

That's what he's supposed to list, right?

Mr. Nessim: I think that's correct.

If you take the most simplest of proceedings, a guilty plea, with a very standard sentencing, what does an attorney do?

I think that an attorney in that case should at least refer to the issues such as voluntariness of a plea, whether the defendant was advised of rights, whether the sentencing was in the range.

If the attorney does that, the appellate court will have the information to decide, 1) whether the appeal is wholly frivolous, 2) whether the attorney provided effective assistance, and whether he did his duties under Douglas v. California.

I think it's a very workable system.

Justice Souter: And it will get the court there faster than the court will get if it has to do it all by itself.

Mr. Nessim: That's right.

Anders is not only constitutionally required, it's an efficient system.

What's being complained about by some practitioners or judges in California is the failure to file an Anders brief, because the court then is just left with a cold record, and is forced to do the whole thing itself.

Justice Ginsburg: What about the appellate process?

Justice Kennedy: On that point, Justice Stevens and I were both interested in the brief filed by the retired justices.

Do you interpret this brief as saying that there is a constitutional deficiency in the California procedure, or that they just prefer the old procedure as a policy matter?

How do you interpret the brief?

Mr. Nessim: Yes.

Your Honor, I interpret the brief as the judges' commenting on policy, not constitutionality.

I disagree with the Warden's statement that their statement is to, in a sense, agree with the Warden that the California system, which is practiced at least in some parts of California, is the correct system.

I think they're talking about the policy.

And with respect to the CAP system, as we pointed out in our brief, most of... the only thing about cap, which is in the record, came out the first time at the Federal habeas level, when Mr. Goodwin, the appellate attorney, filed a declaration where he said he consulted with an appellate attorney.

That doesn't indicate that they independently reviewed the record, and even if they did, that was the situation in Ellis back in, I think it was in '58 or '63, where the Court said it doesn't matter how many attorneys looked at something behind closed doors, the court needs the assistance of an advocate.

Somebody has to act as an advocate.

Justice Ginsburg: You suggested, I think, in your brief that these appellate projects where not uniform in their approach, and that some of them do require an identification of issues that the lawyer considered.

I think there's some disagreement about that.

Can you tell us a little bit more about... it's rather foggy what these appellate projects are.

Ms. Jorstad said that they are run by experts, that the staff of experts in these matters... but I'm a little unclear on exactly what these animals are.

Mr. Nessim: Your Honor, we said very little in our brief on the merits about the CAP system.

It is addressed in great length in one of the amicus briefs that was filed on our behalf, the one on behalf of Delgado.

Our position on the CAP system is, first of all it's not in the record and shouldn't be considered, but if the Court does consider it, as the Daskian brief points out, there are five different appellate projects in California, and one of them in 1990, after the Ninth Circuit decision in Griffy, where the courts basically said, the Ninth Circuit in that case, if the California system is as they claim, meaning not requiring an Anders brief, it's unconstitutional.

According to this brief, one of the appellate projects at that time switched to the Anders system and according to this brief two others have, but I would caution the Court, none of this is in the record.

Our position is that even if... 1) it's not in the record, and 2), even if there was a second attorney who reviewed it, this Court has repeatedly held that is not the substitute of an advocate's brief, and an Anders brief, while a very strange form of advocacy, is still an advocate's brief, and the court needs that.

I would point out also that there is a fundamental difference between the Warden's position and our position as to what an arguable issue is.

The Warden I think would ask counsel to speculate as to, in a sense act as amicus per aes, which was criticized before as to the likely success of an issue.

I think in McCoy this Court very clearly said that an arguable issue is any issue that has any basis in fact or law, and I think the nine issues that we set forth, and we only need one... and the lower courts didn't say that there were not more than two.

They said there were at least two.

I think that if this Court... and this is not only a case of equal protection.

Due process concerns, Ebbitts made that very clear, as well as Sixth Amendment concerns are present, too.

If one applies the balancing test, which in MLB was discussed again last term, there is a fundamental interest at stake here, the right to counsel on the first appeal as of right, and if you look at the State interest, Anders is efficient.

All it requires the attorney to do is to put pen to paper, to put... he had to go... he or she has to go through that process anyway.

It doesn't involve greater expenditures.

Justice O'Connor: Well, I suppose...

Mr. Nessim: It's efficient for judges.

Justice O'Connor: I suppose in the Anders opinion itself there's some indication that we wouldn't preclude other systems that were equally as effective, right?

Mr. Nessim: The...

Justice O'Connor: I mean, Anders isn't necessarily the only way that the right to counsel can be satisfied.

Mr. Nessim: This Court has repeatedly held that advocacy is necessary to reliably decide a case, and we would submit that the lawyer has... Anders is a limited exception.

A merits brief is much preferred.

Anders is just a recognition that there are certain State ethical rules that sometimes prohibit that.

So I think any system would require a form of advocacy to give the Court the information it needs, because a cold record is insufficient, and I should add...

Chief Justice Rehnquist: So...

Mr. Nessim: I should add that Anders, McCoy, and...

Justice O'Connor: But it's so odd when the court itself says, we don't want it and need it.

We have a different system that we think works as well.

Mr. Nessim: First of all, that's what the Warden...

Justice O'Connor: I mean, if it's... this was for the benefit of the court presumably, and the court says, I don't need it, thank you.

Mr. Nessim: First of all, Your Honor, the California courts have not said that.

In fact, they've said the exact opposite of what the Warden says, and in terms of a policy matter, that's what the retired judges are saying.

Chief Justice Rehnquist: Well, but...

Mr. Nessim: They need that brief.

Chief Justice Rehnquist: I thought in Wende the supreme court of California had approved this system.

Mr. Nessim: Not at all, Your Honor.

If this court reads the Wende opinion, there were two questions raised in Wende, 1) whether the appellate court had to make an independent review of the whole record, and the second question Wende considered was whether counsel had to formally withdraw.

Now...

Chief Justice Rehnquist: Well, here the court of appeals in this case said they were satisfied the respondent's attorney had fully complied with the responsibilities in Wende.

I mean, that suggests that the California courts do recognize this system.

I mean, it would really be a very strange world if the California courts don't recognize it, and yet this case comes here in this posture.

Mr. Nessim: I would submit, Your Honor, that the... many California courts...

Chief Justice Rehnquist: Well, but...

Mr. Nessim: have misinterpreted their own law, and...

Chief Justice Rehnquist: Well, that's not a question for us, whether California courts misinterpret their own law.

That's up to them.

Mr. Nessim: Well, I agree with that, Your Honor.

The answer for the ultimate question for this Court is whether the system meets constitutional standards, but California's argument that their system is consistent with California law independent informs this Court's analysis on each of the three questions.

It's part of the Bierdenberg v. Georgia balancing of interests.

If the States... if... you have to look... obviously, the high court of California is the ultimate authority on California law, not the intermediate appellate court, not the Warden, and if they've said an Anders brief is required, that affects the balancing of interests.

It also, when the California supreme court states that though an attorney... and this goes back to Justice O'Connor's question that I didn't have a chance to answer about...

Chief Justice Rehnquist: Well, I... before you go back to any other question, I wish you'd answer mine, and here the California court of appeals said it examined the record, found no other arguable issues, and the response attorney fully complied with his responsibilities, citing Wende, and then the California supreme court denies review.

Are you saying that this is the California court of appeals' position is contrary to California precedent?

Mr. Nessim: Yes, Your Honor, and I refer you to Wende, and I agree that Wende is not the clearest...

Chief Justice Rehnquist: Okay.

We've got the California court of appeals saying this did comply with Wende.

We've got you saying it didn't.

That's a rather easy choice.

Unidentified Justice: [Laughter]

Mr. Nessim: Well, Your Honor, if that was the choice, I would agree with you.

I'm referring you to what the California supreme court said in Wende, and what it made crystal clear, not seeking to break any new ground in Sade C.

It said, in California an Anders brief must refer to law as well as facts, and...

Justice Ginsburg: If we reject your view of what those two cases stand for, and we accept that the California procedure is, you do not have to identify issues that you considered along the way, let's assume that that is the California law, does that affect whether you should win or lose?

Mr. Nessim: No, it should not affect.

We should still win, Your Honor, because if one goes back and reads the State's briefs in Anders v. California, they are an exact replay of their arguments here.

They argued there there was a multi-tiered review of several attorneys.

They argued there that there was an independent judicial review of the whole record, and this Court found that insufficient.

Why, and again I go back to the purposes, because the Court... the cold record is not enough for the court to make the determination of whether the appeal is wholly frivolous, nor was it enough to determine whether counsel provided effective assistance.

The brief here only... a high school student could have written this brief.

It first of all misses most of the important pretrial proceedings, and even its summary of the facts, it's a nonlawyer's discussion.

It's a summary of a witness-by-witness basis.

There's no advocate's basis.

I should add here that the failure of advocacy goes beyond, in this case, the mere file... the failure to file an advocate's brief, whether merits or Anders.

The Chief Justice in his dissent in Penson discussed that there's no reason to doubt that the attorney conscientiously reviewed the record in that case.

There's plenty of reason to doubt that in this case.

Many of the important pretrial proceedings weren't even transcribed at the time, so the attorney didn't have the benefit of that, the appellate court didn't have the benefit of that.

In fact... and then Penson discusses that one of the important responsibilities of an advocate is to ensure that the appellate court has a full record.

The appellate attorney here failed in that obligation.

Robbins actually made several motions to augment the record before the State court of appeal.

The attorney did not support those efforts.

In fact, many key portions, the... one of the arguable issues we raise is the denial of the motion to... for destruction of evidence.

The Warden points out in their reply brief that Robbins said at one point, this motion has already been heard, and the judge says, well, we're not going to hear it again.

In fact, if you look at the record, there's nothing in the record to suggest that it actually was heard.

Robbins was probably confused.

The hearings, which... between the filing of that motion and that colloquy, if you look at the minute order, that's all we have.

None of them indicate that the motion was actually heard, and so Robbins actually pointed to each of these key motions and hearings in his motions to augment, and the appellate court denied that, and I think that was probably in contravention of California law to look at the whole record.

And Goodwin, the attorney didn't support it.

Justice Stevens: Would you explain to me a little bit more about California's rules on getting the whole record typed up and provided.

Did he have a right to have everything typed up, or did he have to make some kind of a showing that there might be something in the parts that hadn't been typed up?

Mr. Nessim: The relevant rule is California Rule of Court 33, and it's been amended, I don't think substantively, from back when this appeal was decided on today.

It does not... it requires all motions which were denied to be part of the appellate record, and in fact all motions which were denied were not part of the record on appeal in this case.

It does not to my knowledge... it does not require all pretrial proceedings, but there is a mechanism, if those are relevant to deciding an issue of appeal, to request them.

Justice Stevens: How did they get typed up in this case?

Did you have to order that, or did... how did it... you said that they weren't typed up in time for the California appellate court to have read them.

Is that shown by the record?

Mr. Nessim: Yes, Your Honor.

The transcripts were prepared during the State habeas proceedings before I was appointed as counsel.

Robbins did that on his own.

Justice Stevens: I see.

Mr. Nessim: He caused a reporter to prepare those.

Those transcripts were attached to the State habeas and, of course, to the Federal habeas petition.

Justice Stevens: Did he do that at his own expense, or State expense?

Mr. Nessim: His own expense.

Justice Stevens: I see.

Mr. Nessim: Now, I would... to stress, in terms of the prejudice per se standard, you know, there is a difference between... and Penson expressly recognizes this, between providing some advocacy that's ineffective and no advocacy at all.

In fact, in both... Ebbitts refers to Anders and Entsminger, cases where the attorneys did not formally withdraw, and notes that they were represented by counsel in name only and, in fact, they had no counsel at all.

Like those defendants, Robbins in this case had to shift entirely for himself, and Penson refers to both Cronic and Saterwaite v. Texas as cases which obviously involve trial error.

But that... Penson expressly extends them to the appellate area and says, when an attorney fails to act as an advocate in a proceeding, the error pervades the entire proceeding and can never be harmless, and the reason for that is because the court would have to speculate without the assistance of an advocate, and we've also discussed the additional reasons of comity and judicial efficiency.

I would add that we believe that even if the Strickland standard was applied in this case, that we would prevail.

We have raised substantive issues.

there's a reasonable probability sufficient to undermine the confidence.

If there are no other questions, I will conclude my argument.

Rebuttal of Carol F. Jorstad

Chief Justice Rehnquist: Thank you, Mr. Nessim.

Ms. Jorstad, you have 3 minutes remaining.

Mr. Jorstad: Thank you very much, Your Honor.

I think we should be very clear about what advocacy means in the context of an Anders brief, or a no-merit brief generally.

Up front, it means, giving the client the benefit of professional judgment, of professional skill, professional analysis.

In California, there's also even more professional review, and a whole system built around that.

But once there's been a no-merit determination made by counsel, when you talk about advocacy, what you're really talking about is advocating for the other side.

Telling the court what issues it can readily reject cannot help having some, at least subliminal, if not more, effect on the mind set of the judges who are reading that brief.

Far better for the client if also...

Justice Stevens: Yes, but we rejected that point in the Wisconsin case, McCoy, didn't we?

We said it's perfectly okay if he spells out the reasons why he thinks there's no merit.

Mr. Jorstad: And I think, Justice Stevens, that what we can say about McCoy is that this Court approved that procedure, which was in fact a deviation from Anders, but it didn't require it.

California, I believe, has much more concern for the client.

Justice Stevens: Well, we didn't hold it was a deviation from Anders.

We held it was perfectly consistent with Anders.

Mr. Jorstad: I under...

Justice Stevens: It performed the function of having a lawyer identify for the court in a way that would be helpful to the court when it looks through the record what arguable issues are there, and this... it required that there be some discussion of legal issues, and that's what's missing here.

You don't have any discussion of legal issues.

Mr. Jorstad: That's correct, Your Honor, just as, as a matter of equal protection, no client with retained counsel would ever put before the court a discussion of the legal issues he rejected.

It just wouldn't happen.

I'm suggesting to the Court that there is no reason to be unduly suspicious of lawyers who write no-merit briefs.

It's a hard thing to do.

It requires much more in the way of approval from the appellate project in California.

The sanctions against the lawyer are potentially far greater.

He's subject to a presumed prejudice standard rather than a Strickland standard.

The much easier course would be to raise something like the reasonable doubt instruction which most everybody...

Justice Stevens: Well, of course, the difference in the prejudice is, in Strickland the fellow gets a new trial.

Here, the only thing that's at stake is whether there has to be a merits brief filed.

Mr. Jorstad: Well, in Strickland... but on appeal Strickland...

Justice Stevens: But he's not going to get out of jail if there's a violation of Anders.

Mr. Jorstad: Absolutely not, Your Honor, but Strickland also applies on appeal in merits situations, and that's when a new appeal is given.

It would be wrong to force the State to give appeals willy nilly in situations like this one, quite specifically.

Here, the two issues that have been suggested as the most meritorious by the two courts...

Chief Justice Rehnquist: Thank you, Ms. Jorstad.

Your time has expired.

Mr. Jorstad: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Attribution:

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Featured:

Rowland, Former Director, California Department Of Corrections v. California Men's Colony, Unit II Men's Advisory Council - Oral Argument

Fri, 09 Jan 2009 14:49:28 +0000

Case:

Rowland, Former Director, California Department Of Corrections v. California Men's Colony, Unit II Men's Advisory Council

Media File:

91-1188_19921006-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of James Ching

Chief Justice Rehnquist: We'll hear argument now in number 91-1188, James Rowland v. The California Men's Colony.

Mr. Ching.

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

Section 1915(a) permits persons to proceed in forma pauperis upon the filing of a proper affidavit of indigency.

The issue today is whether associations or corporations may also apply and whether, therefore, they are persons under the language of the statute.

The relevant events concerning this statute are few and can be briefly described.

Prior to 1959, the in forma pauperis statute was limited to citizens, and prior to 1959, the case law is perfectly unequivocal.

Those citizens were only natural persons.

They were not corporations, and a fortiori, they were also not associations.

Unknown Speaker: Well, Mr. Ching, weren't corporations considered to be citizens at least for purposes of Federal court jurisdiction?

Mr. Ching: The... corporations were considered citizens for the purpose of diversity jurisdiction.

They are not entitled to powers of immunity under the Constitution.

Consequently, there was some discretion in... according them various privileges such as the in forma pauperis.

The Second Circuit in two cases held that they were not to be afforded the benefits of the in forma pauperis statute.

Therefore, up to 1959, the application of the plaintiff in the court below would have been summarily rejected.

Unknown Speaker: Well, it would have been rejected in the Second Circuit.

Mr. Ching: It would have been rejected certainly in the Second Circuit with no--

Unknown Speaker: How do we know whether it would have been rejected in the Ninth Circuit, for example?

Mr. Ching: --Well, I would guess that the period of time between 1938 and 1959, in which no single case arose, indicated that there was some unanimity on the point.

I have no other thought about the nature and number of cases involved.

But in 1959, Congress, with the explicit, singular, and unequivocal intention of according the benefit of in forma pauperis to resident aliens and resident aliens alone substituted for the word, citizen, in the in forma pauperis statute the term, person.

Then for a period from '59 to '69, utterly no litigation at all on the point.

What this would indicate to me, in sum, is number one, the statute, whether referring to citizen or to person, never referred to artificial persons.

It only referred to natural persons.

Secondly, in the amendment in 1959, the language is we would extend the same privilege as is now afforded citizens to resident aliens.

Unknown Speaker: That's the language of what?

Mr. Ching: That is the language of the report, the Senate report, in the statutory history.

Unknown Speaker: What about the House report?

Did that say the same thing?

Mr. Ching: I do not... I only had the Congressional News report.

I do not know.

However, drawn from this examination of the statutory reports, there are two principles: first, that the intent of the legislation was only to include another category of natural persons, residential aliens; and principle number two, that Congress has been extremely parsimonious in extending the benefit of IFP to any other groups.

Well, this brief summary, of course, compromises the core of the--

Unknown Speaker: What did you call the principle that Congress only intended to--

Mr. Ching: --To parsimoniously extend the benefits of in forma pauperis.

Unknown Speaker: --That's a principle or that's just an observation I suppose.

Mr. Ching: I guess it's an observation.

It's a generalization which I think is fairly drawn from the statutory history.

Unknown Speaker: Well, has the Congress rejected from time to time suggestions to expand the in forma pauperis statute?

Mr. Ching: I do not know, Your Honor.

Unknown Speaker: Well, then I don't think you have any evidence for your supposition.

Mr. Ching: All right.

Well, in any case, the single instance in which they have expanded it with an enactment has been this 1959 amendment.

The core of the minority position is... takes note of the fact that in 1948 the section 1 of title 1 was amended to create persons... a definition of persons that included corporations and associations.

This would seem in light of the lack of any reference in section 1 to 1915 to be an irrelevant definition.

It is even more irrelevant in light of the qualification that is explicit in section 1, that unless the context is consistent with the definition of persons, it is not to be used.

Unknown Speaker: Well, it says unless the context otherwise requires, doesn't it, in--

Mr. Ching: Unless the context otherwise--

Unknown Speaker: --Or unless the context indicates otherwise.

Mr. Ching: --Indicates.

Of course, the meaning of context is not spelled out, but surely context must at least include the events surrounding the amendment in 1959, as well as the cases from the--

Unknown Speaker: So, you say context means more than the words of the statute itself.

Context means the environment for the milieu in which the statute was adopted?

Mr. Ching: --Certainly.

Yes, that is my point, Your Honor.

Unknown Speaker: And the legislative history.

Mr. Ching: Certainly, Your Honor.

Unknown Speaker: Section 1 then requires us to look at legislative history in every case to be sure it doesn't otherwise require.

Mr. Ching: I would think so, Your Honor.

Unknown Speaker: A statutory directive.

Mr. Ching: And since, in fact, we are attempting to implement the intent of Congress, then certainly we must understand what they mean if they use the word, person.

Unknown Speaker: What does context not include?

Mr. Ching: I would not... I would think that the use of such a general term would not exclude much.

Unknown Speaker: Anything?

Anything at all?

I mean, I don't know why they just didn't say then unless there is some reason to think otherwise--

Mr. Ching: And certainly--

Unknown Speaker: --the word, person, means, you know, but they didn't say that.

They said unless the context indicates otherwise.

Mr. Ching: --And there is nothing in section 1 to indicate what context means.

Unknown Speaker: Well, I think the word, context, comes from the word, text.

Context.

It means the surrounding text.

Mr. Ching: Yes, and, con, would indicate with or adjoining to, and so--

Unknown Speaker: There's textual, there's contextual, there's extratextual.

I think context means context.

The passage in which the word is used, the surrounding statutory language.

Don't you think that's what it means?

Mr. Ching: --If that were so, that would indicate a restriction to only the statute which purported to define person in a separate and distinct manner.

The cases, the FTC case and so on, dealing with the use of person doesn't seem to indicate such a narrow restriction.

Unknown Speaker: Well, really the first definition in the dictionary is that it is a connection of words that... excuse me.

The parts of a discourse that surround a word or passage and can throw light on its meaning.

So, under that definition... it's the first definition... it would indicate that we look just to the statute.

Mr. Ching: Well, anything that would indicate its meaning.

Yes, I would think that you would look to the text first.

There's no doubt about that.

Unknown Speaker: But now, I said gist of the statute.

That's a plausible interpretation of context, is it not?

Mr. Ching: Yes, it certainly is.

Unknown Speaker: If we don't go beyond the text, do you lose?

Mr. Ching: No.

I do not believe that I lose if we are permitted to examine statutory materials related to--

Unknown Speaker: What's your best textual argument?

Mr. Ching: --My best textual argument is that which I led with; that is, there has been a consistent restriction to natural persons both in case law and in the bill.

Unknown Speaker: Well, aren't you getting beyond the text of the statute when you say that?

I mean, that's your parsimony argument, and you have to go to... I guess you have to look at a lot of congressional history beyond this statute.

If you just look at the text, as Justice Scalia suggested, is there anything in the text that supports you?

Mr. Ching: Well, the... by inference, the... I'm hard put to give you an answer on that.

Unknown Speaker: What about the requirement for an affidavit?

Mr. Ching: The requirement for an affidavit is, of course, tied up with the complications of a corporate identity.

Unknown Speaker: It's not normal to talk about a corporation making an affidavit, is it?

It says that you can't get IFP status unless you make... unless the person makes an affidavit that he is unable to pay such costs.

Mr. Ching: Well--

Unknown Speaker: Such affidavit shall state the nature of the action, blah, blah, blah, and affiant's belief that he's entitled to redress it.

I mean, I guess you could say that the corporation can make an affidavit through one of it's officers, but--

Mr. Ching: --It could--

Unknown Speaker: --it's sort of a stilted use there, isn't it?

Mr. Ching: --Well, it could not make it directly as implied by the plain meaning of the statute, and I would think that tied up with that is the inability to determine what the corporate assets are for the purposes of the litigation at hand.

So--

Unknown Speaker: I suppose without the definition of person, the general definition of person, if that weren't in the statutes, I suppose you would win.

Mr. Ching: --Yes, unequivocally.

Unknown Speaker: Because you don't usually call a... in common parlance, you wouldn't call a corporation a person.

Mr. Ching: No, I would not think so.

Unknown Speaker: I suppose the word, poverty, in the statute also helps you.

You don't usually think of a corporation as making an affidavit of poverty--

Mr. Ching: Well, I--

Unknown Speaker: --financial... or do you?

Mr. Ching: --I would not.

I hate this, but I really do believe that a bankrupt corporation could make an affidavit of poverty through its trustee.

Unknown Speaker: We usually refer to impoverished corporations?

We refer to corporations with financial hardship, corporations that are insolvent.

Mr. Ching: Yes.

I mean, there are many other technical terms that would more accurately describe a corporation without funds to pursue litigation.

Unknown Speaker: So, you don't pin much on the term, poverty, in the statute.

Mr. Ching: I do not think it is as significant as the other point Justice Scalia made.

Unknown Speaker: I suppose part of the context is also the fact that this statute is providing for treatment as an indigent and providing public funds to be used for purposes that otherwise people are required to pay for.

That's the part of the context, right?

That... that's how the word is used in that context.

Mr. Ching: Yes.

Yes, at least that range and intent of the legislature was--

Unknown Speaker: And public charity is not usually accorded to corporations.

Mr. Ching: --The corporations and associations are not of the first concern in terms of public welfare.

Unknown Speaker: Do you think that a bankrupt corporation that is bankrupt because it can't possibly pay its debt, its assets are much less than its liabilities... do you think that would automatically mean that it could be... it could file an affidavit that is... that it is entitled to be treated as a pauper?

Mr. Ching: There is no reason to think that the bankruptcy... any of the prevailing tests for determining it bankrupt would automatically be imported into the in forma pauperis statute.

Unknown Speaker: Well, a corporation might have... could be taking... could be put in involuntary bankruptcy or take voluntary bankruptcy even though it has an income of maybe 100,000 dollars a year.

Mr. Ching: Certainly, and the practical--

Unknown Speaker: And yet, I don't... I doubt if it would be granted in forma pauperis status, would you?

Mr. Ching: --I hesitate.

I hesitate to answer for the Ninth Circuit.

However, in all seriousness, I do believe income flow is one of the key provisions for determining in forma pauperis status.

Unknown Speaker: Well, there's a difference also.

When an individual says that that person is unable to pay such costs, you're talking about a person perhaps supporting themselves, getting food on the table, and that sort of thing.

When a corporation makes an affidavit that it's unable to pay the costs, what factors does it take into consideration?

Mr. Ching: It is simply stating that it is unable to engage in the business for which it was created, and therefore, it would seem to me a lesser claim than that of bread on the table for an individual.

And surely, the in forma pauperis statute was more directed to the individual in dire straits than a corporation in dire straits.

Unknown Speaker: Well, now, Mr. Ching, in this instance, if we have an association of prisoners who by... I guess you concede they individually didn't have any money.

Mr. Ching: I... the... one of the major problems with the case is the lack of development of facts upon discovery in this instance.

We do know of instances in which inmates have considerable money.

Unknown Speaker: Well--

Mr. Ching: So, I would not concede that as a theoretical--

Unknown Speaker: --All right.

Let me ask you this.

Could the action have been brought as a class action with an affidavit of indigency by the--

Mr. Ching: --Individual plaintiffs.

Unknown Speaker: --individual plaintiffs?

Mr. Ching: I would think so, Your Honor.

As a matter of fact, the complaint itself speaks of certification as a... of a class action.

I do not--

Unknown Speaker: So, it wouldn't have been impossible for this group to have filed on an indigent basis, in effect, through the mechanism of a class action.

Mr. Ching: --Well, certainly, Your Honor, I think that they could have pursued a class action.

I think that's what they should have done.

Unknown Speaker: But, Counsel, isn't that... isn't there a danger there that just because the named plaintiff is indigent, could he bring a class action in forma pauperis if he has got a bunch of Rockefellers in his class?

Mr. Ching: Well, Your Honor, the... I would think the IFP status would be granted for him, for the individual involved.

Unknown Speaker: For the... but then he sues on behalf of the whole class.

Mr. Ching: Yes.

Unknown Speaker: Whereas if you made him sue in the association, as he does here, you'd be... you'd lump all the wealth of the entire group together and they'd have to be without funds as an entity.

Mr. Ching: Well, that's one of the tests that has been... that have been proposed, that is, lumping or--

Unknown Speaker: What I'm suggesting is that I think that you will have more in forma pauperis actions allowed if you allow class actions with just an indigent named plaintiff than you would if you looked at the assets of the entire class, which is what we would do in this case.

Mr. Ching: --Well, I suppose that would be true, Your Honor.

I mean, part of our concern is the administration of the courts and the volume of cases that arise.

In the instance where there is a certified class action, we at least have the confidence to know that there is an interest that is common to all the parties involved, and in addition, it greatly simplifies our need to discover individual statuses and individual capacities.

Unknown Speaker: Can I bring a class action on behalf of all purchasers of AT&T stock, and just because I happen to be bankrupt, I can bring that class action on behalf of all AT&T stockholders in forma pauperis?

Is that really the law?

Mr. Ching: No, no.

I had suggested--

Unknown Speaker: I thought that's what you said, that so long as the--

Mr. Ching: --I had suggested that the individual would proceed and would, therefore, move for certification as a class action.

At that point, if the class is going to be maintained, I believe some inquiry as to the individual capacities--

Unknown Speaker: --I see.

I see.

Mr. Ching: --of the members of the classes--

Unknown Speaker: I see.

Mr. Ching: --would then proceed.

There would be a subsequent xxx.

Unknown Speaker: Right.

That makes sense.

Mr. Ching: The issue of statutory interpretation--

Unknown Speaker: May I ask you another question?

Mr. Ching: --Yes.

Unknown Speaker: You were... suggested that if there hadn't been this history, the word, person, would normally be read just to include individuals.

But I... just glancing at the rules, Rule 19 talks about joinder of persons needed for adjudication and so forth.

The whole language is all about persons.

You don't think that excludes paupered persons.

Mr. Ching: Well, in that regard, I'm also looking at the limitation upon the definition of citizen which precede it in the very same statute and which has been... which had been accepted for a considerable period of time.

In light of that and the use... and the amendment, the explicit amendment, only to include resident aliens, I would feel that a common definition of person would be appropriate.

If there are no further questions, I would reserve the remainder of my time for rebuttal.

Unknown Speaker: Thank you, Mr. Ching.

Mr. Weisselberg, we'll hear from you.

Argument of Charles D. Weisselberg

Mr. Weisselberg: Thank you, Your Honor.

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

There are three main reasons why the Men's Advisory Council may sue in forma pauperis.

First, under the plain and unambiguous statutory language, an association may proceed in forma pauperis.

Second, if this Court does decide to look to the legislative history, nothing in the legislative history is contrary to the plain language of the statutes.

And third, the statutory context, meaning the overall text, structure, and purpose of the in forma pauperis statute, does not require a restricted definition of the word, person.

Turning first to the statutory scheme, 1 U.S.C., section 1--

Unknown Speaker: How do one and three differ?

Mr. Weisselberg: --I'm sorry, Your Honor.

Unknown Speaker: How are one and three different of these reasons?

Mr. Weisselberg: Well, one... Your Honor--

Unknown Speaker: The plain language is the plain language.

Mr. Weisselberg: --Yes, Your Honor, but I think 1 U.S.C., section 1 does have the phrase which counsels the court to look to the context, and what I mean is that--

Unknown Speaker: Well, that's part of the plain language, isn't it?

Mr. Weisselberg: --Yes, Your Honor.

I would say--

Unknown Speaker: All right.

Go ahead.

Mr. Weisselberg: --one and three are in that way related.

But 1 U.S.C., section 1 defines person to include associations.

Section 1 was on the books when section 1915(a) was amended to include persons.

Section 1 is Congress' own dictionary.

It gives a mandatory definition of the word, person, because it is the definition that Congress itself has written.

In Wilson v. Omaha Indian Tribe, this Court construed the phrase, white person.

The Court held that Congress was aware of its own dictionary, and so when Congress reenacted the law using the phrase, white person.

Congress was fully aware that the phrase would be construed to cover artificial entities, as well as individuals.

Now, it makes sense--

Unknown Speaker: Because it was the same Congress, after all, that enacted that definitional section.

Right?

Mr. Weisselberg: --Yes, Your Honor.

Unknown Speaker: Was it really?

Mr. Weisselberg: Well--

Unknown Speaker: How many years elapsed between the people that voted for that definitional section and the people that voted for 1915, as amended?

Mr. Weisselberg: --Well, Your Honor, the... section 1 was amended in I believe 1948.

Section 1915 was amended in 1959.

But I would point out that 1 year before in 1958, this Court decided the case of United States v. A&P Trucking, and in that case, this Court was interpreting a criminal statute that used the phrase, whoever.

Whoever, is defined, along with the word, person, in 1 U.S.C., section 1.

This Court construed the phrase, whoever, to include partnerships because partnerships were included in the section 1 definition.

So, just one year before section 1915 was amended, this Court decided a case applying Section 1 to construe a Federal statute.

And it makes sense for Congress to define standard terms in section 1.

That saves Congress from redefining those terms every time a new bill is passed.

But Congress can only rely upon the definitions in section 1 if this Court is willing to make those definitions mandatory.

The petitioners' claim here is that Congress was silent regarding whether an association may proceed in forma pauperis, but I would suggest the Congress spoke loud and clear in the statute.

In amending section 1915(a), Congress deliberately used the word, person, and Congress chose that word knowing that the word, person, has a specific standard statutory meaning.

The petitioners want that phrase, person, in section 1915 to be read as natural persons, but if Congress had wanted only natural persons to proceed in forma pauperis, it would have said so in the statute.

The statute would have said that natural persons can proceed in forma pauperis or that individuals can proceed in forma pauperis or that citizens and aliens can proceed in forma pauperis, or Congress would have taken the time to craft a specific definition of the word, person, just as Congress has done in a variety of other statutory schemes.

But Congress didn't do so.

It used the word, person, which has a standard statutory definition.

Now, the petitioners rely quite a lot on the legislative history to the amendment to section 1915(a).

In response to an earlier question, I'd point out that the Senate report, which is republished in the U.S. Code and Congressional News, I think also reprints the House report.

It contains it in great detail so that the legislative reports from the two chambers are reproduced there.

And those reports do not say that person means only natural persons.

There's a paragraph that's two sentences long that's entitled Purpose, and all that it says is that the purpose of the amendment is to change the word, citizen, to the word, persons.

Unknown Speaker: Well, Mr. Weisselberg, I suppose that under the old original statute that dealt with citizens back in 1892, that that didn't include associations, did it?

Mr. Weisselberg: Well, there was certainly case law that allowed artificial entities of... namely, corporations to--

Unknown Speaker: Maybe a corporation, but I didn't... didn't the old dictionary law in force back in 1892 make clear that it didn't apply to associations?

Mr. Weisselberg: --I don't believe that the version that was in effect at that time included the word, association.

Unknown Speaker: So, we take it on the assumption that citizen then at least didn't include an association, such as you're representing.

So, when Congress changed citizen to include aliens, presumably it didn't enlarge it.

Mr. Weisselberg: Well, it... several responses to that, Your Honor.

First, again, when Congress changed the statute and chose the word, person, which was then defined to include a category of people other than merely corporations and aliens, it specifically includes associations.

I also--

Unknown Speaker: Well, yes, but it also tells us to look at the context.

Mr. Weisselberg: --Yes, Your Honor.

Unknown Speaker: And if the context tells us that it didn't include associations, I guess that--

Mr. Weisselberg: Well, Your Honor, I suppose I'd suggest that the context here does not exclude associations and does not counsel otherwise.

Perhaps I ought to address that.

I'd suggest that the Court consider context in the same way that this Court has construed the word, context, and looked at context in interpreting a number of statutory schemes.

There are a few cases that come to mind.

There is Department of Energy v. Ohio, and in that case, this Court interpreted the phrase, sanction, or the word, sanction, and the Court said that sometimes looking at a phrase in context gives a meaning that a phrase lacks in isolation.

And there the Court compared the use of the word, sanction, in several different subsections of the particular enactment.

So, I'd suggest that was an example of a court looking at the overall text of the statute to decide context.

And here I'd suggest that context, thus, refers to the overall text of the statute and not to a legislative history.

And when one looks at the overall text and purpose of the in forma pauperis statute, there is nothing that would suggest in my mind that the statute ought to be limited to natural persons only.

Unknown Speaker: --I don't know that that is the strongest argument I've ever heard, that if Congress were sitting down and thinking about this right now, and you said, well, do you want corporations, as well as natural persons, to be able to proceed IFP, you say yes, Congress would have said yes?

Mr. Weisselberg: Well, there are plenty of reasons why the Congress would have said yes and why the Congress deliberately used the word, person, in amending section 1915.

I think this Court has recognized in a number of cases that effective advocacy may be brought about through associations and through group litigation.

Unknown Speaker: Well, but we're talking about corporations.

Mr. Weisselberg: Well, Your Honor, there are lots of... corporations are, of course, frequent litigants in the Federal courts, and it may well have been Congress' intent to allow those corporations to continue to litigate even if they didn't have the funds to support the litigation.

Unknown Speaker: What... supposing the secretary of the corporation or the president of the corporation is going to make an in forma pauperis affidavit, what does he take into consideration that will... what sort of corporate picture does he have to have before he can say that the corporation is unable to pay the costs?

Mr. Weisselberg: Well, I suppose initially, at the very least, the officer would Get out the assets and the liabilities of the corporation and list the income of the corporation.

I suppose that at a minimum though I'd point out that, of course, the statute--

Unknown Speaker: But he has to affirm.

He not only has to set out statistics, but he has to swear that the corporation is unable to meet the costs.

Isn't that--

Mr. Weisselberg: --Yes, Your Honor.

Unknown Speaker: --What decision making process does he go through?

Mr. Weisselberg: I suppose he would look at the assets again and the liabilities of the corporation, see if there is a way that the corporation would have the funds to support the filing fee, and figure out the costs in that respect, Your Honor.

He'd have to go and determine what the filing fee would be and what the costs of the civil litigation would amount to.

But I would... I'd like to point out that I don't think that process is that much more difficult than it is for an individual.

The in forma pauperis statute doesn't give the courts the criteria that are used to determine whether an individual may proceed in forma pauperis.

Unknown Speaker: No.

Mr. Weisselberg: That's something that--

Unknown Speaker: But with an individual, you know, a person presumably is thinking about food, shelter, some clothing, any liquid... you know, any cash at all, and it just doesn't seem to me that a corporation ordinarily thinks in those terms.

Mr. Weisselberg: --Well, and that might be one reason why this is unlikely to be used by many corporations.

Perhaps it would help address the policy aspects of it by describing the Men's Advisory Council itself in a bit more detail.

There are 10 dormitories in Unit II of the California Men's Colony.

Unknown Speaker: xxx.

What difference does it make?

I mean, the argument... I don't care what the men's dormitory... today it's the men's dormitory council.

Tomorrow it's going to be some association of millionaires--

Mr. Weisselberg: Well--

Unknown Speaker: --who simply haven't put very much money into this association or corporation.

So, you have a very impoverished corporation composed of members who are very wealthy, and you would have to argue, well, a person is a person.

This is an association.

The association as an association is poor.

Mr. Weisselberg: --Justice Scalia, I disagree, and perhaps I can explain why.

The reason why I wanted to describe the Men's Advisory Council a little... in a little more detail is that I think it's an excellent example of a situation in which an association is bereft of funds and actually in this case bereft by action of one of the defendants, the warden.

But going back to the... your example, Justice Scalia, that of a corporation perhaps deliberately underfunded, the in forma pauperis statute gives the Federal courts and gives the district courts tremendous discretion in determining whether or not an organization or a corporation is indigent.

And if a corporation is underfunded, that's a usual instance in which a court might look beyond the shell, that is, the structure of the corporation, to the assets of the individuals.

Unknown Speaker: I don't know what you mean by underfunded.

People bought stock in the corporation.

The business didn't do very well.

Since it was a losing business, they declined to contribute any more money, but in fact, all of the owners of the stock are millionaires.

Is that underfunded?

It's just a poor corporation.

There is no blame there.

It just so happens that it's owned by millionaires.

Mr. Weisselberg: Well, Your Honor, I suppose I'd simply suggest that it's a very rare instance when a corporation, even if it is bankrupt or going bankrupt, can't spare the 120 dollar filing fee for an action in Federal court or funds for witness fees.

Unknown Speaker: What about lawyers?

This section 1915 also requires that the court may request an attorney to represent any such person unable to employ counsel.

Now, counsel are very expensive.

You... do you think that in this context we should interpret that to mean corporations and associations, that the courts are going to appoint counsel to represent corporations?

Mr. Weisselberg: Well, the courts are free in their discretion I believe under that section to request counsel to represent an indigent association, just as the Ninth Circuit requested us to represent this indigent association.

Of course, that's on a pro bono basis, as I think this Court recognized also in the Mallard decision.

Unknown Speaker: Mr. Weisselberg, could this action have been brought as a class action and affidavits of indigency supplied by named plaintiffs?

Mr. Weisselberg: I suppose that it's possible that an inmate may have filed this action on behalf of a class of other indigent inmates at the institution.

Nevertheless, this association is one that was formed at the request of the warden with the specific purpose of representing the inmates to give them representation and a voice in the way the prison affairs are run.

This is the organization that exhausted administrative remedies.

This is an organization consisting of elected representatives from different dormitories.

So, this is a... an organization very well suited to bring this action.

And I think in the UAW v. Brock case, this Court recognized that it may be better in many circumstances for an organization composed of individuals to bring an action than it would be to proceed through a class action under Rule 23.

Unknown Speaker: Is there any way of construing 1915 to say that associations are included within the word, person, but corporations aren't?

Mr. Weisselberg: Your Honor, I think using 1 U.S.C., section 1, all of the entities that are listed in that section would come within the meaning of the word, person.

Unknown Speaker: So, it's either corporations and associations, or it's neither.

Mr. Weisselberg: Well, I suppose initially I would look to 1 U.S.C., section 1 and consider all of the entities listed there to be persons if I suppose the Court were to think that for some reason the context of the statute indicates that only several of them--

Unknown Speaker: xxx what an association is.

Mr. Weisselberg: --Yes, Your Honor, generally a collection of individuals.

Unknown Speaker: You mean just anybody can say... a bunch of neighbors get together and they just say we are an association?

Mr. Weisselberg: Well, Your Honor, associations are formed in many ways I suppose, but the question here isn't whether associations per se can litigate in Federal court because they can.

The only question here is whether indigent associations may proceed under the in forma pauperis statute, and to the extent there are questions of standing--

Unknown Speaker: Well, but isn't--

Mr. Weisselberg: --and such, they--

Unknown Speaker: --But you have to recognize that... even you have to recognize what an association is--

Mr. Weisselberg: --Yes, Your Honor.

Unknown Speaker: --to get in forma pauperis status.

And it would, of course, mean that people, for instance, landowners wanting to fight a zoning change, could form an association and not fund it and claim indigent status and get a lawyer appointed.

Mr. Weisselberg: Well, in that... several responses to that, Your Honor.

First, I suppose many different groups can form an association, but again if that sort of an association sought to proceed in forma pauperis, the district court would be free to look at the assets of the individual members of the association.

But--

Unknown Speaker: Why is that?

Mr. Weisselberg: --They'd be free to do that.

Unknown Speaker: Why would it be free to look at the assets of the individual members?

Mr. Weisselberg: Well, Your Honor, the courts have said simply that there's a lot of discretion, enormous discretion, in the judges in terms of how--

Unknown Speaker: So, one judge could look at the assets of the individual members and another judge would not, and either one would be correct?

Mr. Weisselberg: --Well, Your Honor, I think that the discretion will have to be guided by some future decisions as this area of law develops.

I mean, again--

Unknown Speaker: But what is the rule in your view that ought to be enunciated?

When an association files for IFP--

Mr. Weisselberg: --Yes.

Unknown Speaker: --may a court consider the assets of the individual members or only those of the association?

Mr. Weisselberg: Well, I think initially the court ought to simply look at the affidavit that is submitted on behalf of the association.

In the Adkins case, the Supreme Court case--

Unknown Speaker: I don't think you've answered my question.

Mr. Weisselberg: --Well, I think initially the court ought to look to the affidavit which describes the assets of the association, but the court would want to know, in essence, the purpose of the association, whether it was formed in some way--

Unknown Speaker: Well, now--

Mr. Weisselberg: --perhaps to avoid paying fees.

Unknown Speaker: --why don't you give me an answer to the question and then explain?

Does a court look to the assets only of the association, or does it look to the assets of the individual members?

Mr. Weisselberg: I believe the court should look to the assets of the association only unless the materials give the court a reason simply to look further, say, a suspicion that the organization was not adequately funded by the members, something like that, Your Honor, some indication from the papers.

Unknown Speaker: Suppose it's plain the association hasn't got any money, but it's also just as plain that the members of it do.

Mr. Weisselberg: I'd see no reason why the court couldn't look to the members of the association for the funds.

Unknown Speaker: So, you only look to the association exclusively if you find that it has so much money of its own that it doesn't deserve in forma pauperis.

Mr. Weisselberg: Well, Your Honor--

Unknown Speaker: If it doesn't have any money, then you look to... always look to the members.

Is that it?

Mr. Weisselberg: --Your Honor, I would say the court should look to the affidavit first which would normally set out the assets of the organization, and it would probably, I would assume in this circumstance, give an indication of the purpose from the organization and from that, Your Honor, the court would have some understanding of the purposes of the organization, whether it was--

Unknown Speaker: Well, what about a partnership that has filed its articles of partnership according to law?

Mr. Weisselberg: --Ordinarily, Your Honor, in a partnership, one looks to the assets of the members of the partnership.

The court would be free to do so.

Unknown Speaker: Well, a fortiori, I suppose you ought to look to the... because a partnership is more of a... is treated more as an entity in more circumstances than an association I suppose.

And yet, you say look to the assets of the partners.

Mr. Weisselberg: Well, you know, again, perhaps this is a good instance in which a court wouldn't look past the assets of the organization.

I mean, in this case, the organization consists of elected members from the prison who were formed by... at the request of the warden with a purpose of addressing administrative problems within the prison itself, and under those circumstances, it would be difficult to say that individual elected representatives, people who are serving because the warden wanted the inmates to have a voice, should be forced on their own to pay the assets even if they were able to gather the funds.

I mean, in this case the warden prohibited the organization from collecting funds.

The record clearly states that the organization couldn't have an account, couldn't collect funds through a fund raiser of any type.

So, you have an organization which was formed to represent the inmates and was made indigent by one of the defendants in the action itself.

So, I would think this is a good example of a case in which a court would look at the assets of the organization, the bona fide purpose of the organization, and not look further than that.

Unknown Speaker: I assume you think the same about corporations as you do about partnerships and associations, that you look to the stockholders?

Mr. Weisselberg: Well, Your Honor, I would think that the courts are very free to borrow from general principles of corporate law when one pierces the corporate veil.

Unknown Speaker: No, but that would mean you normally wouldn't look to the stockholders.

Unless there's some special malice or fraud or something involved, you don't look to the stockholders.

So, it's enough that the corporation is impoverished.

That's--

Mr. Weisselberg: I would say that in general, yes.

But, Your Honor, I don't want to--

Unknown Speaker: --Suppose I form a corporation to do a public interest litigating functions, public interest litigation firm, only its causes, the causes it wants to litigate, are very bad causes, so it can't raise any money.

It raises very little money.

No problem, right, because it will be able to proceed in forma pauperis and even to have the court appoint counsel.

Mr. Weisselberg: --Well, I think the court--

Unknown Speaker: 0 xxx.

Mr. Weisselberg: --I think the court would want to look and see if the person who formed the organization did so having funds on his or her own and simply underfunded the organization.

Unknown Speaker: Well, now, but there's no fraud involved here.

I thought you said normally you don't look past the corporation unless the usual reasons that you pierce the corporate veil.

There's nothing underhanded about setting up a corporation with very small capital.

There's nothing evil about that.

That's perfectly valid.

There's no fraud.

Mr. Weisselberg: Well, Your Honor, I mean, under those circumstances, I assume the court would look to the assets of the organization.

Unknown Speaker: So, then whenever you have a poor corporation, you do look behind... you pierce the corporate veil.

Mr. Weisselberg: Well, no.

I'm sorry, Your Honor.

I thought I said that the court would look initially to the assets of the corporation, and if there was a reason under generally accepted principles of corporate law to look past the assets of that organization, the court would have the discretion to do so.

Unknown Speaker: Well, we're just going around again.

As I say, under normal principles of corporate law, you don't pierce the corporate veil unless there's some fraud.

Mr. Weisselberg: That's correct, Your Honor.

But frankly, I know the court has... and we've taken an awful lot of time discussing what may appear to be this practical problem, but in general I am not at all certain that the courts will have difficulty assessing when organizations can go in forma pauperis.

And I don't really that this is something which will come up much.

I mean, frankly, the Southern District of New York decided the Harlem River case 15 years ago.

In that case, the district court held that associations and corporations are persons within the meaning of the in forma pauperis statute.

I think this Court can take note of the fact that the Southern District of New York is a district which has quite a number of corporations and associations, and yet, since the Harlem River case, no case has reached the Second Circuit on this issue.

There's no other reported case in the Southern District of New York.

I don't know that this is something which is going to come up often.

Also, I would point out that if organizations are bringing lawsuits on behalf of individuals, it may well be that there would be a reduction of litigation in the Federal court because an association suit may replace suits of many individuals.

So, first, I don't know that this is something which will cause a problem for the courts, and I don't know that it will come up very often at all.

I'd also like to point out the in forma pauperis statute, section 1915, doesn't even give guidelines as to... assess the indigency of individuals, and yet, the courts have managed to fashion their own rules to determine when individuals can proceed in forma pauperis.

And the courts have developed that jurisprudence and have not had difficulty in developing it.

And I'd suggest that the courts, if associations or corporations do occasionally sue under this in forma pauperis statute in the future, will have no difficulty developing that jurisprudence either.

I know that the petitioners have suggested that legislative history means context and that the Court ought to look to legislative history.

I'd suggest that context means overall text and purpose of a statute, and that if this Court looks to the legislative history in this case, it does it for the same reasons that the Court ordinarily looks to legislative history, and that is if the statute is deemed ambiguous in any respect or if there is an argument that interpreting the statute literally would frustrate the intent of the legislators.

I think that the language of the statute is clear.

The statute is not ambiguous.

Section 1915 says that persons may proceed in forma pauperis, and 1 U.S.C., section 1 says that persons include associations.

So, it's not an ambiguous statute and one should not look to the legislative history under that... for that reason.

If there is a claim that interpreting the statute literally would frustrate the intent of the legislators, I think this Court in Union Bank v. Wolas said that a party making that argument has an exceptionally heavy burden to meet.

Unknown Speaker: What would you say if the committee report says we know we've used the word, person, in this statute, but we have no intention that that word, person, means what the general definition of person is--

Mr. Weisselberg: I think that--

Unknown Speaker: --in another statute?

Mr. Weisselberg: --I think that would be a much harder case for me, Your Honor, and that might be a circumstance in which a... the legislative history would indicate otherwise.

But we don't have that at all here, Your Honor.

Unknown Speaker: You think the legislative history has to say that in order to make a difference.

Mr. Weisselberg: Yes, Your Honor.

I think it does, and it doesn't say that at all here.

The legislative history contains some references to aliens, and it may well be that some legislators were motivated to amend the in forma pauperis statute to allow aliens to proceed in forma pauperis.

Unknown Speaker: You acknowledge, though, that legislative history is relevant within... it is part of the context.

Mr. Weisselberg: No, Your Honor, I don't think that it comes--

Unknown Speaker: Well, you just did.

You just said that.

Mr. Weisselberg: --No.

What... I'm sorry, Your Honor.

What I meant to say is the Court considers legislative history, in essence, for two reasons: one if the statute is ambiguous, and this statute is not ambiguous; second, if a party makes a claim that interpreting the statute literally is absurd or would lead to absurd consequences, or that it was contrary to the--

Unknown Speaker: 0 xxx.

Mr. Weisselberg: --thwart the intent of the legislators.

That's a circumstance in which this Court has in the past--

Unknown Speaker: Well, you said it would be a much harder case if the committee report said we don't intend to apply the general definition of person--

Mr. Weisselberg: --Yes, Your Honor.

Unknown Speaker: --and we don't intend to include associations and corporations.

And you said that would make a difference.

Mr. Weisselberg: I said that would make it a much harder case, Your Honor, because--

Unknown Speaker: If that's xxx, you should say no, it wouldn't make any difference because it's still not context.

No matter how clear it is, it's not context.

xxx context--

Mr. Weisselberg: --Your Honor, what I'm saying... what I mean to say is that I don't think that context includes legislative history.

I think if this Court looks to legislative history, it does for the other reasons--

Unknown Speaker: --Well, then there wouldn't be any harder case than my example.

Well, sure it would be a harder case because you have to overcome the argument that your reading is absurd, and that's what you saying.

That's what you'd look at to see if was absurd, and you'd say no--

Mr. Weisselberg: --That's right.

Unknown Speaker: --that it's harder to that extent.

You got one more hurdle to cover.

Mr. Weisselberg: That's right, Your Honor.

Unknown Speaker: There's no inconsistency in your position.

You're making alternative arguments.

Mr. Weisselberg: Well, all I wanted to point out is that I think that a party that's making the argument that interpreting a statute literally has an exceptionally heavy burden to meet and it is so heavy that that argument failed in Griffin.

It failed in Mansell v. Mansell.

It failed in Ardestani, and it must fail here.

Well, if there are no further questions, I--

Unknown Speaker: Thank you, Mr. Weisselberg.

Mr. Ching, you have 12 minutes remaining.

Rebuttal of James Ching

Mr. Ching: Yes, Your Honor.

I have two brief, very brief, points.

The first is this counsel point which crops up again.

If, in fact, we have to take corporations and associations simultaneously because of the definition of section 1, then it means the 19... under provisions of 1915, each of those will have to have appointed counsel.

Unknown Speaker: No, it doesn't at all.

The statute doesn't say he must appoint counsel or even he may appoint counsel.

Mr. Ching: Certainly--

Unknown Speaker: The section says he may request an attorney--

Mr. Ching: --Exactly right.

Unknown Speaker: --to represent any such person, but the lawyer can say no.

Mr. Ching: And my point is that corporations never appear except through counsel, and a fortiori, neither can associations.

There is internally--

Unknown Speaker: Well--

Mr. Ching: --an inconsistent provision--

Unknown Speaker: --Neither do individuals generally appear without counsel.

Mr. Ching: --Well, in forma pauperis individuals appear without counsel all the time, my point being that if the general rule regarding representation of corporations is followed through, the statute does not adequately address the special needs of corporations and associations to appear--

Unknown Speaker: Well, that's just a different rule.

That doesn't mean that they can't be... have in forma pauperis status.

All it means is that you can have it, but in order to get into court, you got to have a lawyer.

Mr. Ching: --Yes.

Unknown Speaker: Bring your lawyer.

Bring your lawyer.

Tell your lawyer that you're broke and he should--

--Meet you at the courthouse.

Mr. Ching: Meet you at the courthouse, yes.

Unknown Speaker: He should come with you.

Well, he got a lawyer here without the help of the court, didn't he?

Or was he appointed by the court?

Your opponent.

Mr. Ching: He was appointed by the court.

Unknown Speaker: By the court, oh.

Mr. Ching: Pro bono.

My point is that under the provisions of the statute--

Unknown Speaker: He's shaking his head.

He shouldn't do that during your argument, but he--

[Laughter]

Mr. Ching: --And so am I because I was appointed by the court without authorization other than that.

But the only point I make is if the statute is worded in terms of discretionary appointment of statute... of counsel, that is inconsistent with the concept that associations or corporations could be in forma pauperis because they must appear through counsel.

Unknown Speaker: No, but many of these in forma cases, there are volunteer associations of lawyers, pro bono groups that do volunteer legal services without the judge intervening.

They draft the complaint and so forth.

And that could have happened here whether, in fact, it did or not.

Mr. Ching: Well, it was a simple point well-refuted.

I'm prepared to submit the matter.

Chief Justice Rehnquist: Thank you, Mr. Ching.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Denton, Director Of Corrections Of California v. Hernandez - Oral Argument

Fri, 09 Jan 2009 14:49:32 +0000

Case:

Denton, Director Of Corrections Of California v. Hernandez

Media File:

90-1846_19920224-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of James Ching

Chief Justice Rehnquist: We'll hear argument now on No. 90-1846, George F. Denton, Director of Corrections of California v. Mike Hernandez.

Mr. Ching.

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

This matter is before the Court for a second time.

The initial decision, Hernandez I, announced an exclusive judicial notice rule for determination of frivolity under section 1915(d).

This Court summarily remanded, granted the petition, remanded the case to the Ninth Circuit for determination according to the then-recent case of Neitzke.

Unknown Speaker: We didn't hear oral argument--

Mr. Ching: No, Your Honor.

Unknown Speaker: --We just held the case for Neitzke.

Mr. Ching: Yes.

You remanded it for review in light of Neitzke.

Hernandez II, the product of that remand, once again announces an exclusive judicial notice rule.

This rule is contrary to the holdings of Neitzke and is contrary to the logic of, the interpretation of 1915 in the line of cases this Court has announced beginning with McDonald and Sindram, passing through the announcement of Rule 38.9 and the recent case of Zatko.

The... it is my contention initially there is no justification for an exclusive judicial notice rule.

The Ninth Circuit has fashioned this requirement out of thin air.

It has no basis in law and is contrary to policy.

Unknown Speaker: Are you going to explain in a little more detail what is the exclusive judicial notice rule that you're referring to, Mr. Ching?

Mr. Ching: Yes, Your Honor.

The Ninth Circuit required that before a case could be determined as frivolous and in forma pauperis status rejected, reference had to be made through judicial notice to some objective negating fact which positively contramanded the allegations of the pleading.

This approach is contrary to that in Neitzke, in which this Court required that, contrary to a 12(b) motion for judgment on the pleadings, a district court had to pierce the veil and eliminate, pierce the veil of the pleadings in the complaint and eliminate the fantastic and the delusional.

Clearly the Ninth Circuit rule fails as to the fantastic.

There is no judicial notice to be made that a plaintiff is not Satan or Mohammed or a martian.

These fantastic cases prove that the exclusive judicial notice rule cannot be left in place.

The present case presents the other half of Neitzke, the delusional cases.

Within the corners of these five complaints is ample proof of a diagnosed delusional condition and of perceptions which not only defy the principles of formal logic but also defy common sense, and in fact are perfectly predictable from the initial medical diagnosis in the record.

This is an individual who is incapable of reasoning in an appropriate manner.

We do not say that because he is ill his complaints must be ignored.

But because he is ill his perceptual apparatus is seriously wanting.

Unknown Speaker: Well, Mr. Ching, do you take the view that the trial judge is to determine the credibility of the allegations made in a complaint, the factual allegations made, or do you take the position that the trial court should just determine what rational inferences can be drawn from the facts that are alleged?

Mr. Ching: The use of the term credibility I believe is an unfortunate one, my point being that there is no evaluation of a witness' testimony made within the four corners of the five complaints.

Unknown Speaker: I mean, it would seem to me that in... looking at the complaints here that perhaps it could be said that no rational inference of rapes could be made from the facts that were alleged with the exception, of course, of the affidavits submitted by Armando Esquer.

What do you do about that, where he says he witnessed sexual assaults on the complaining party?

Mr. Ching: I agree with you as to the evaluation that must be made of the unsupported allegations.

The issue of the supporting affidavits does tend to lend credibility to the allegations that are referred to--

Unknown Speaker: Well, as to that do you think in the face of the affidavit of Armando Esquer, that as to that complaint which is one of the five, that it can be dismissed--

Mr. Ching: --Your Honor, I would say--

Unknown Speaker: --as frivolous?

Mr. Ching: --on its face, read without the context of the five complaints, it would survive a frivolity determination, and indeed it might very well survive a 12(b)(5), 12(b)(6) rather.

There is a range of rationality within the complaints.

As to whether or not all would survive is a matter that I think is at first instance entrusted to the discretion of the trial court.

However, the larger context and the context to which the magistrate referred in dismissing these complaints is that the seemingly rational is in fact tainted by the less rational contained in the grouping.

Unknown Speaker: But, but when you look at the affidavit of this third party, then it seems to me you're saying that the trial judge should just make a credibility determination as to that affidavit.

Mr. Ching: Well, insofar as what the trial judge should be doing in evaluating a complaint, he should be attempting to pierce the veil, whatever that means, in Neitzke terms.

Neitzke states that a 12(b)(5), 12(b)(6) cannot be based on a credibility determination.

I believe there is an inference in Neitzke that the court is entitled to go beyond the mere surface reading of it and is entitled to take both judicial notice and to make rational connections amongst the parts of the complaints that appear before it.

The--

Unknown Speaker: Could I ask, was this dismissal here with prejudice or without prejudice?

Mr. Ching: --It was not, it was not formally stated to be either.

I believe that the Ninth Circuit intended it--

Unknown Speaker: I'm sorry.

Mr. Ching: --the denial of in forma pauperis was all the court intended.

Unknown Speaker: So you think that all we're, so you think that he could have rebrought any one of these complaints if he could pony up the money for the filing fee and--

Mr. Ching: Yes, Your Honor, I, it is--

Unknown Speaker: --I mean, that makes a big difference as to what our standard is going to be.

If all we're doing is excluding somebody from the IFP, it seems to me it's one thing, but if you think the dismissal means he can't rebring it, then maybe we ought to have a higher standard.

Mr. Ching: --The dismissal is one which simply denies IFP.

I see no greater significance to it.

The Ninth Circuit has in fact taken the position by requiring not only the objective judicial notice rule, but also the de novo review on appeal, and also the reporting requirements to the inmate, that is reporting to the inmate how the complaint is deficient, that no subjectivity should enter into this process.

I think that is fundamentally contrary to the position set forth in the cases that relate to 39.8, excuse me, 38.9... 39.8... in any case, this Court's rule regarding frivolity.

The term frivolous is inherently subjective.

It is inherently judgmental.

It is, it can only be based--

Unknown Speaker: Well, do you read any of our cases as saying that a complaint is frivolous if it has a legally sustainable basis?

Mr. Ching: --Certainly not.

This Court has always adhered to the rule that the frivolous case is one that is inarguable in law or fact.

This, in a case that presented an arguable legal claim--

Unknown Speaker: Because it would seem to me that most of the cases under 39.8 are cases that are just not sustainable as a matter of law.

Mr. Ching: --Well, Your Honor--

Unknown Speaker: I don't know what precedential value you can get from those cases.

We haven't stated any standard to the contrary of what the respondent argues here.

Mr. Ching: --The standard set forth in 39.8 is the same that is set forth in 1915(d), and is perfectly consistent with any theory that this Court has inherent power to order its own business.

Unknown Speaker: Yes, but the standard for frivolity in a petition for certiorari to this Court may be quite different when applied on facts from the standard of frivolity applied to a complaint filed in the district court.

Mr. Ching: Within the terms of the rules, and of course the different subject matter and jurisdiction of the courts, that may be true.

However, frivolous seems to have a unitary meaning within the three contexts.

The 1915 use of frivolous seems to be the same as in 39.8.

Unknown Speaker: I don't understand the realm of discretion and subjectivity you're arguing.

I take it you mean that what might pass one district judge wouldn't pass another so far as this rule is concerned?

Mr. Ching: I believe that would be one consequence of a discretionary interpretation of frivolity, and yet I believe we have to entertain a discretionary interpretation of frivolity because there is no substantial means to assure a perfectly uniform result in each application to the various district courts.

The suggestion has been made by the United States that the terms used in Rule 11, not well grounded in law, are interpretable or applicable to the frivolity determination in 1915(d).

This is a rule that has its basis in the arguments that were pointed out in the dissents, that the fundamental basis for requiring a frivolity determination is to ensure that an economically feasible litigation comes before the court.

Rule 11 attempts to apply some kind of economic calculus to the actions of counsel in bringing litigation and it relies on, it has a well-formed case law which in fact could be applicable to the determination of frivolity in this instance.

Unknown Speaker: Rule 11 is really premised on the idea of sanctions, frequently monetary sanctions--

Mr. Ching: Yes.

Unknown Speaker: --imposed against counsel, perhaps, and in some cases perhaps clients, and the fact that one is seeking to proceed IFP pretty well negates the idea that sanctions of that sort are going to be used.

Mr. Ching: It's my understanding that the United States' position applies only to the importation of the test itself and rather than the utilization of sanctions.

Certainly it would be futile against indigent plaintiffs.

However, the attempt to require plaintiffs to make that decision or be held to that standard is a unitary one.

If the Court has no further questions I would like to reserve my time for rebuttal.

Unknown Speaker: Very well, Mr. Ching.

Mr. Nichols, we'll hear from you.

Argument of Richard W. Nichols

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

Section 1915 is a statute of general applicability to poor persons.

It is a statute enacted in support of a congressional goal that access to the courts should be equally available to the poor as well as to the rich.

It is not a statute which applies only to prisoner or civil rights cases such as this case is, and, as the Chief Justice has indicated, it is not a sanction statement, statute.

In balancing the right of access under Section 1915 against caseload concerns that district courts obviously have that moved Congress to authorize dismissals for frivolousness under the statute, it is desirable that district courts be afforded an objective standard... this is one of the substantial differences between the petitioner and the respondent in this case... an objective standard pursuant to which they can determine whether particular factual allegations have an arguable basis and therefore are not frivolous.

This Court has already partially determined an objective standard in Neitzke, namely the standard that the claim must have a, quote, arguable basis, unquote, in law and fact.

Arguable does not mean reasonable chance of succeeding according to the viewer.

Arguable in the view of the respondent means whether any rational fact-finder could conclude that the allegations are true.

Unknown Speaker: Doesn't arguable almost, you think of it as an adjective used to modify something dealing with law rather than facts.

Mr. Nichols: Certainly that is the sense in which it is most frequently used, but the Court's definition of the standard in Neitzke applied the same definition, arguable basis, to both law and fact.

And it seems to the respondent that in trying to figure out what an arguable basis is, Mr. Chief Justice, that a rational fact-finder would be the one to determine whether a particular factual argument is or is not arguable.

Unknown Speaker: Are you inserting a whole layer of some sort of determination different from a motion to dismiss or a motion for summary judgment?

Mr. Nichols: It's essentially, essentially akin to a motion for summary judgment procedure, although not necessarily having to be brought by motion.

The Neitzke case clearly establishes that motions to dismiss and frivolousness dismissals are different in kind.

And if I may respond to Justice Scalia's earlier question, it is the respondent's view, it is my view that a frivolousness dismissal constitutes a factual determination of frivolousness which would preclude the bringing of a second action on the same claims if the plaintiff could get together the money to pay the filing fee.

Unknown Speaker: And yet Neitzke certainly allows the district court or the magistrate, whoever is the initial determiner, to probe beyond the surface allegations.

You don't have to treat it the way you do a dismiss, where a motion to dismiss or all properly pleaded facts are treated as true.

Mr. Nichols: Absolutely, and--

Unknown Speaker: So what more can the district court do, in your view, than it can do on a motion to dismiss, which is virtually nothing so far as well pleaded facts?

Mr. Nichols: --Well, the district court can require a number of, impose a number of procedural requirements to require the plaintiff to get away from pleading conclusions and plead evidentiary material, heightened facts, so that the district court can determine, prior to the plaintiff coming in for an evidentiary credibility determination, whether the pleadings with those items of evidence would be sufficient to enable a rational fact-finder to conclude that there was something worth proceeding on to the credibility point.

Unknown Speaker: The rule, the section as written contemplates some dismissals without further leave to amend or anything else, don't you think?

Mr. Nichols: It certainly contemplates dismissals without leave to amend.

I suppose that there are some types of allegations that are so outlandish on their face that no rational fact-finder could ever conclude, no matter how much opportunity to amend was granted, that they would, that they could survive.

Unknown Speaker: Well, Mr. Nichols, some of the allegations here may fall in that category, I would suggest.

Mr. Nichols: Well, some of them... I will certainly admit, Justice O'Connor, that quite a number of them fail to survive a 12(b)(6) test at this point, and it may be on amendment--

Unknown Speaker: Well, they may fail to allow a rational inference to be drawn as to some of them.

Mr. Nichols: --Well, Mr. Hernandez has never been given an opportunity to amend in respond, in response to the Ninth Circuit's view of what he ought to be able to do.

We don't know what he might try to do by way of amendment.

If I may give you an example, let's assume a prisoner says I was raped by Robin Hood and his merry men.

Clearly an irrational allegation on its face.

However, if you superimpose on that the possibility of a prisoner alleging that there had been a prison show about Robin Hood and some of the other inmates had kept some of the clothing and the other inmates in that clothing had come in, maybe it's not quite so irrational.

Unknown Speaker: What if you were--

Mr. Nichols: And the notice point, it seems to me, is a kind of a due process thing that if you're going to throw a plaintiff out with prejudice he ought to have an opportunity to plead his best case.

And when we're talking about pro se plaintiffs we can almost presume that they haven't pled their best case in the first instance.

Unknown Speaker: --Mr. Nichols, in your response to Justice O'Connor you said that some of the allegations here would not survive a 12(b)(6) motion, as if you were, that were a more extreme test than 1915.

I had thought that just the opposite was true, that some allegations of fact that would survive a 12(b)(6) test could be thrown out on the grounds of fantasy or delusion in a way that we have never said a 12(b)(6) motion would reach them.

Mr. Nichols: Your Honor, what I had in mind in response to Justice O'Connor was Mr. Hernandez has brought in the director of the prison system, he has brought in the warden, and he has not pled anything remotely close to personal responsibility on the part of those people.

Unknown Speaker: But... you were not then addressing the 28 rape claims, assuming responsible--

Mr. Nichols: I will go a little farther than that, Mr. Chief Justice.

Some of the rape claims say I suspect.

I don't know who did it, but guard Perdoni was on the shift at the time it happened.

I would be perfectly prepared to concede that that does not constitute a sufficient allegation against the unknown guard or the speculative guard to survive a 12(b)(6) motion in terms of an allegation of personal responsibility for a specific act.

But what the Ninth Circuit has done has been to say a lot of these allegations probably don't survive a 12(b)(6), but it is the rule of our circuit that, as Mr. Ching has referred to it, the notice rule, that before the Ninth Circuit will dismiss a case under 12(b)(6) with prejudice it requires that a pro se plaintiff be given notice of the deficiency and an opportunity to amend.

Unknown Speaker: --Well, it--

--Was this a dismissal under 12(b)(6)?

Mr. Nichols: No, it was not.

This was a dismissal under 1915.

Unknown Speaker: Well, did you just misspeak yourself?

Mr. Nichols: No.

What I said, what I intended to say, Justice White, was that the Ninth Circuit in reversing the 1915 dismissal pointed out that many of these allegations as they stood would not survive a 12(b)(6), but that the district court ought to give the plaintiff, Mr. Hernandez, an opportunity to replead in light of its discussion of those legal deficiencies so that he could attempt to avoid those 12(b)(6) deficiencies.

Unknown Speaker: Well, what about 1915?

What did they say about 1915?

Mr. Nichols: They said that 1915 required them to be able to take judicial notice that no rapes occurred, and they could not do that.

Unknown Speaker: Well, the state is challenging that standard for dismissing under 1915.

Mr. Nichols: The state, as I understand it, is contending that the district court has absolute and standardless discretion to dismiss under 1915.

Unknown Speaker: Well, anyway, they disagree with the Ninth Circuit on 1915.

Mr. Nichols: Certainly.

Unknown Speaker: They do.

Well, are you going to argue about that?

Are you going to get to that sometime?

Mr. Nichols: Yes, Justice White.

It is my view that a 1915 dismissal cannot be justified unless the court can make a determination that no rational fact-finder could ultimately conclude that the allegations of the complaint are worthy of belief.

Unknown Speaker: But even Robin Hood and his merry men does not qualify for that in your view?

Mr. Nichols: In my view Robin Hood and his merry men without any other facts does not, would be dismissible under 1915.

Unknown Speaker: Would not?

Mr. Nichols: Would.

Unknown Speaker: It would?

Mr. Nichols: Yes.

But what I am saying is that--

Unknown Speaker: Why is that?

Mr. Nichols: --if you superimpose additional facts on top of that, then maybe you can start dealing with a mentally ill prisoner who perceives matters perhaps a little differently than you and I might perceive them, articulates them a little differently--

Unknown Speaker: I understand, but what... your bottom line is I can dismiss it as a district judge?

A guy comes in and says I have been raped by Robin Hood and his merry men--

Mr. Nichols: --If that is all he says--

Unknown Speaker: --That's all he says.

Mr. Nichols: --That's all he says--

Unknown Speaker: I don't have to let him amend?

Mr. Nichols: --That's my bottom line.

Unknown Speaker: Why don't I have to let him amend?

Mr. Nichols: I am sorry.

If I can back up for a moment, Justice Scalia.

If that's all he says and he doesn't attempt to amend.

If he attempts to... he ought to be given notice, in my view, that it is the court's intent to dismiss under 1915 unless he amends to set forth some additional facts that carry with them an indicia of rationality.

Unknown Speaker: But the Ninth Circuit disposed of the 1915 issue on the requirement of judicial notice.

Mr. Nichols: That's correct.

Unknown Speaker: And then the remand wasn't in connection with 1915, it was the 12(b)(6).

Mr. Nichols: I believe the remand was on both issues.

Unknown Speaker: Well, what were they going to remand?

Oh, I mean the remand for giving him a chance to amend was on 12(b)(6).

Mr. Nichols: They were going to give him a chance to amend to cure the 12(b)(6) deficiencies and to--

Unknown Speaker: And?

Mr. Nichols: --and to amend to cure what appeared to be irrational allegations as they stood.

Unknown Speaker: Under--

Mr. Nichols: Under 1915.

Unknown Speaker: --If one reads 1915(d) in connection with Rule 56 for summary judgment in a civil case, Rule 12(b)(6), motion to dismiss, it is supposed to open the possibility, one would think, and I think Neitzke supports this, of a judge, before the complaint is served or answered, at a very, very early stage, to dismiss a certain small class of cases even though they might state, if the facts were believed, they might state a legal claim.

Now, if one tacks on the notice requirement that the Ninth Circuit is talking about, the leave to amend, it loses all its usefulness.

A judge is far, a trial judge is far better off saying I'll never use 1915, we'll just get the state to respond, file a motion for summary judgment, and decide it that way.

It seems to me, with all the baggage that you say 1915 carries with it, it is virtually useless.

Mr. Nichols: Mr. Chief Justice, the posture that we take is that a district judge can do all of those things prior to service and prior to requiring that an answer or responsive pleading be filed by a defendant.

Unknown Speaker: But the district court will have taken up a considerable amount of its time in doing those things.

It would have perhaps taken less time to simply say let the state answer, file a motion for summary judgment, we'll have that argued, I'll decide it then.

Mr. Nichols: Well, it seems to us, Mr. Chief Justice, that the district court is required to take a look at each of the allegations.

For example in this case there are some allegations that respectfully are not irrational in my view under anybody's test.

Unknown Speaker: No one doubts the district court must take a look at each of the allegations, but the question is may the district court dismiss some allegations as frivolous without any ifs, ands, or buts about it?

Mr. Nichols: I believe that the district court may not do so unless and until a plaintiff has been given a knowing opportunity to present his best evidentiary case to the court.

And if he can't pass muster at that time then the district court can dismiss without having to have process served.

Unknown Speaker: What if he, what if the court does all of that and after doing that 99 of the allegations are clearly frivolous, they are of the Robin Hood category, and there is one that, yeah, it could have happened, most unlikely in the company of these 99 other absolutely mad allegations.

The court has to let that one go forward, you think, and couldn't say this is a ridiculous, frivolous suit, out of here?

Mr. Nichols: That is our view, Justice Scalia.

The court does have to let that one go forward.

Unknown Speaker: Well, why is that?

It seems to me... do you know any other provision that is phrased this way?

It doesn't say it may dismiss if the action is frivolous or malicious.

It says it may dismiss if satisfied that the action is frivolous or malicious.

I think that--

Mr. Nichols: I know of no other statute that has that--

Unknown Speaker: --Don't you think that has a flavor of, look, use your common sense, district judge.

This is something that doesn't have to be accorded, the ability to bring suit without paying the filing fees.

If you're satisfied that it's a frivolous suit, dismiss it without prejudice, and if he wants to pay money to make these frivolous claims he can do it.

Mr. Nichols: --Well, there is two questions there as I see it, Justice Scalia.

Number one is that this is not a refusal in the first instance by the district court to permit this complaint to be filed under section 19(a).

The district court did permit these complaints to be filed and specifically found that it could not find on the face of each separate complaint that it was frivolous.

And the 1915(d) dismissal order was entered only after the district court looked at all of these case, related them all together and dismissed them on the basis of one is not incredible but 28 is, in effect.

Unknown Speaker: Dealing with a mentally disturbed person, and that there was not much reason to believe that any of these complaints was valid.

And it would seem to me a very reasonable determination by the district court.

Mr. Nichols: It is our view, Justice Scalia, that that type of a rationale puts you on the slippery slope of essentially denying to mentally ill persons as a class the right of access to the court because any mentally ill person is going to be to some degree unable to state a claim that would not be subject to that type of criticism.

Unknown Speaker: It's not a denial of access to the courts.

It's a denial of the special privilege of being able to come to court without paying the money.

Right?

You can always still file it if you can pay the filing fee.

Mr. Nichols: But that privilege was granted here.

This is a second step after that privilege was granted by the district court.

Unknown Speaker: Does the district court have any discretion under 1915(a) if the affidavit is filed?

I don't read that section as requiring any determination of merit or likely merit by the district court.

Mr. Nichols: Well, there is an argument to be made, and I don't believe it is a proper argument, but there is an argument to be made that in section 1915(a) the use of the word may, the district court may authorize the filing without prepayment of fees, constitutes an empowerment to the district court to refuse to authorize such a filing even if the affidavit of poverty conclusively establishes poverty eligibility.

That is not the case that we are dealing with here, however, because the district court in this case did grant leave.

Unknown Speaker: May I ask you a question, Mr. Nichols?

I'm not sure that I understand your argument to be the same as the theory of the Ninth Circuit, and that's what I want to be sure I--

Mr. Nichols: It is not 100 percent the same, Justice Stevens.

Unknown Speaker: --Well, specifically in the case of an allegation that one would call fantastic or delusional scenarios, men from Mars, little green men doing things to someone.

They wouldn't require notice to dismiss that kind of a complaint, as I understand it.

Mr. Nichols: Well, where I perceive my difference from the Ninth Circuit, Justice Stevens, is that the Ninth Circuit relied on a judicial notice concept that the facts alleged were not subject to reasonable dispute.

Now that to me is an evidentiary test, and the test that I am arguing to this Court is a test that is measured at the stage of the fact-finder or the ultimate determiner of the action, not an evidentiary test.

And in that sense it is a test that is closer, I believe, to the summary judgment test that the Court has articulated in Matsushita and Celotex.

Unknown Speaker: I'm still a little... I'm not sure we're on the same wave length here, that's what's bothering me.

In order to affirm the Ninth Circuit one would not have to hold that in the category of fantastic or delusional scenarios, they treat those separately, that notice is required.

You may argue that notice is desirable in those cases, but the Ninth Circuit didn't hold that.

Mr. Nichols: That's correct, Your Honor.

Unknown Speaker: And what they said, that this is a case which seems highly improbable but there is enough corroboration... Justice O'Connor mentioned the affidavit and some of these things... that they alleged 28 rapes, well, maybe one occurred, who knows, that you can't, you don't put it in the fantastic or delusional category, but in the factual category.

Then they say there is notice required.

Mr. Nichols: They... I don't think the Ninth Circuit imposes a notice requirement in 1915 at all.

Unknown Speaker: Okay--

Mr. Nichols: What the Ninth Circuit does do is to require that all of the alleged facts be considered to be true unless judicial notice to the contrary can be taken.

Unknown Speaker: --And judicial notice, for example, would be if they were men from Mars, we would take judicial notice that that's fantastic and we can dismiss without looking any farther.

Mr. Nichols: Right.

Unknown Speaker: But if you've got something that on its face is not totally improbable you don't dismiss on its face--

Mr. Nichols: That's absolutely correct.

Unknown Speaker: --without requiring a response.

Mr. Nichols: That's absolutely correct, Justice Stevens.

Unknown Speaker: Mr. Nichols, your test is what?

It's an absolute... isn't it all relative?

The men from Mars?

I mean, Robin Hood is dead, I suppose, but men from Mars?

There may be men from Mars, you know.

Do we really know that there aren't?

Mr. Nichols: Well, I think that's--

Unknown Speaker: If somebody came in with a paid complaint alleging some cause of action that depended upon that, you know--

Mr. Nichols: --I think that's what judges sort out, Justice Scalia.

Unknown Speaker: --So it's not an absolute impossibility test.

It's just what seems to you to be likely or not, right?

Mr. Nichols: No.

Not what seems to the individual district judge.

What any rational fact-finder could determine.

I go back here and I rest very strongly on the test in the summary judgment cases, that the rational fact-finder is the test, and that's not--

Unknown Speaker: You are irrational if you allow the possibility that there exist creatures on Mars?

Mr. Nichols: --I'm sorry?

Unknown Speaker: You're irrational if you entertain that possibility?

Is that--

Mr. Nichols: In the present state of knowledge in this society I think that is true.

Unknown Speaker: --If you entertain the possibility?

Mr. Nichols: There is nothing that I am aware of--

Unknown Speaker: My goodness.

I'm glad you weren't on board with Columbus.

Mr. Nichols: --I'm sorry?

Unknown Speaker: I'm glad you were not on board with Columbus.

I mean, you know, they would have said the same thing about the round earth, I suppose.

Mr. Nichols: Well--

Unknown Speaker: Don't feel badly about this, Mr. Nichols.

You can stick with it if you like.

Mr. Nichols: --I suppose that Columbus was putting up some of his own money in connection with the ships that he sailed west on and not asking entirely for the crown's fisc on it.

Unknown Speaker: Spain didn't have a section 1915(d).

Mr. Nichols, it seems to me what you have come back to, though, is that you say this is the same as a summary judgment standard.

I'm not sure that I discern any difference.

Mr. Nichols: That... I think that is essentially right.

Where there is a difference is--

Unknown Speaker: But if you say that then don't you run contrary to what we said in Neitzke?

Mr. Nichols: --I am sorry, Justice Kennedy.

Unknown Speaker: If you say that isn't that contrary to our case in Neitzke where we said there is a difference?

Mr. Nichols: Neitzke dealt with the distinctions between 1915(d) and 12(b)(6), not distinctions between 1915(d) and summary judgement.

12(b)(6) you have to accept as true the facts that are alleged.

Summary judgment you can probe those facts to the degree that if you conclude that no rational fact-finder could support a conclusion you can grant summary judgment, even though there is a scintilla of evidence to the contrary.

And that is the, that is the test that I am proposing.

Unknown Speaker: What is the standard of review?

Do you have a position on that?

What--

Mr. Nichols: Yes, Justice Scalia.

The standard--

Unknown Speaker: --Is it de novo entirely or abuse of discretion?

What?

Mr. Nichols: --I would propose a de novo standard or review because what we are talking about here is judging the viability or nonviability of written documents.

It's not like a Rule 11 situation where you are inquiring into the reasonableness of an investigation under the circumstances.

Unknown Speaker: Even though it says if satisfied, the court may do it if satisfied that the action is frivolous?

Mr. Nichols: It seems to me that the if satisfied test of absolute standardless discretion would do precisely what Mr. Ching conceded to Justice O'Connor would happen, namely allow a district judge in Michigan to handle exactly the same allegations as a district judge in Texas in completely opposite ways.

And--

Unknown Speaker: That may be the case, but that's always the case when you apply an abuse of discretion standard.

If there is discretion it means things can be done differently in different districts.

Mr. Nichols: --Well--

Unknown Speaker: But you have no explanation for the words if satisfied that then.

It may as well have read, as far as your case is concerned, if the action is frivolous or malicious, which is not what it says.

Mr. Nichols: --That's correct, Your Honor.

I do not have an explanation.

Unknown Speaker: You don't defend the Ninth Circuit's standard, and I suppose we could, if we don't agree with it either I suppose we could just remand and say make up another one, or we could say here's what the right standard is.

And we could say and by the way, the respondent proposed a standard that we think isn't too bad, so we're going to remand and have you decide the case under that standard.

Mr. Nichols: It--

Unknown Speaker: Is that what we should do?

Mr. Nichols: --I'd take it a step further, Justice White.

Unknown Speaker: You wouldn't have us apply your standard up here?

Mr. Nichols: I would not have you apply my standard up here.

I would have you remand the case to the Ninth Circuit with directions to remand it to the district court to apply that standard.

Unknown Speaker: Or, if we don't agree with your standard, whatever standard we come up with should go back to the district court?

Mr. Nichols: Whatever standard you come up with ought to go back to the district court, and it ought to be a standard that is applied to each specific factual claim and not just simply to the complaints as a whole.

Unknown Speaker: The United States seems to think that the lower courts are at sea after Neitzke.

They don't, they're all over the lot.

Is that right?

Mr. Nichols: I don't know that I would argue with that.

Unknown Speaker: All right.

Thank you.

Thank you, Mr. Nichols.

Mr. Ching, do you have rebuttal?

You have 16 minutes remaining.

Rebuttal of James Ching

Mr. Ching: Your Honor, I would suggest that the Court was correct in stating that there has been an accretion of miscellaneous procedures, all of them unauthorized by law, such as the Spears and Martinez reports, such as holding these complaints in some file, such as requiring or in fact encouraging fact pleading rather than notice pleading in these instances.

These measures are inappropriate for this lowest tier of decisions to be made by the district court.

Neitzke pointed out there is a difference between summary judgment and 1915(d).

Similarly there is a difference between 1915(d) and summary... and a motion to dismiss.

1915(d) has a purpose.

It is presumptively supposed to do something.

It is supposed to screen frivolous cases out.

This is not a decision that requires a panoply of procedures, nor does it require adversaries be summoned to report on the true facts of the situation.

Unknown Speaker: May I ask you, Mr. Ching, what your understanding of the Ninth Circuit rule is?

Is it not true that they think there's a category of cases called fantastic or delusional that the district judge can just dismiss out of hand?

Mr. Ching: Yes.

But my interpretation of the words, in reading both opinions, is that fantastic and delusional must be established by judicial notice.

Unknown Speaker: Right.

If they, in other words if they take judicial notice of the fact that even though it's possible, as Justice Scalia points out, the probability that there are men from Mars in this particular prison is sufficiently remote that the judge can take judicial notice of the improbability and therefore go ahead and dismiss?

Mr. Ching: I believe I must disagree with that.

It is a rational attempt to make sense of what the Ninth Circuit says.

However, judicial notice is quite clear.

We have a rule that states what judicial notice can be taken of.

Unknown Speaker: What is it?

Mr. Ching: Well, it states that there is permissive and mandatory judicial notice available of such facts in a general group that are beyond question, statutes of the United States--

Unknown Speaker: Which negate the allegations of the complaint?

Is that it?

Mr. Ching: --Yes.

And so by extension I find it very difficult to think that a court could in good faith take judicial notice that there are no martians.

Therefore we're left--

Unknown Speaker: What do you suppose we meant when we referred... that comes out of Neitzke, I think, the fantastic or delusional scenarios.

Do you think, what do you think we meant by that?

Mr. Ching: --I think the Court did in fact mean Mars.

It meant--

Unknown Speaker: We didn't mean judicial notice though?

Mr. Ching: --You certainly did not, Your Honor.

You meant exactly the opposite.

You meant a subjective common sense determination, ab initio, without an accretion of procedures.

Unknown Speaker: But what is it, maybe I miss it in the Ninth Circuit, what is it in the Ninth Circuit opinion that tells us that even in the kind, the martian type delusional case they are not going to dismiss?

I don't understand the judicial notice argument in that particular context.

Mr. Ching: Well, I must say I find it very difficult to understand it as well.

Unknown Speaker: I thought what they said was that there are allegations here that have some factual support, and there is enough factual support that we'll send them back and have the district judge take a look at them.

Mr. Ching: Exactly.

Well, judicial notice is the wrong term.

This is--

Unknown Speaker: They don't use that term, do they?

Mr. Ching: --Yes, they do.

Unknown Speaker: Do they?

Mr. Ching: In both opinions.

They are quite firm and they refer to the rule itself.

This is the problem.

Unknown Speaker: You're right.

Mr. Ching: The problem is the term of art cannot be utilized in this context with any rational, legitimate administrative justification.

There is no judicial notice possible that there are no martians.

Hence Mr. Hernandez will prosecute a martian complaint.

Certainly if it's well pleaded it will go through 12(b)(5), 12(b)(6) rather.

If it's, if the people cannot produce evidence, the defendants, that there are no martians, it passes summary judgment.

We have to go to trial and ask the jury what essentially the judge should have done in the first place.

We will have to ask the jury whether it's rational to believe there are martians who are prosecuting, who are, with the aid of the Department of Corrections, persecuting--

Unknown Speaker: And if they put a martian on the stand the jury might believe them.

Mr. Ching: --Very well.

And imagine discovery, you know.

The problems are rife, and the problems arise because the trial court under the Ninth Circuit doctrine is not given sufficient leeway to make these rational decisions.

Unknown Speaker: And your point is if a martian is, can be determined delusional, it's not too much of a jump to say that these allegations of repeated rapes while he was asleep without his awaking are pretty close to the same category?

Mr. Ching: I would say within the context of these five, yes.

He supplied us his entire medical data.

We know he is a diagnosed psychotic.

We know he is taking drugs for this condition.

Unknown Speaker: Yeah, but what do you do about the affidavit of the eye witness?

Mr. Ching: I am prepared to admit there is a range of possibilities that he can create and he has created.

Any lawyer worth his salt can figure out which ones are going to have the best chance of succeeding.

Unknown Speaker: So do you say the complaint nevertheless should have been dismissed in its entirety?

Mr. Ching: Yes.

I believe that--

Unknown Speaker: I haven't, I don't understand that.

Mr. Ching: --There is a smaller context, and with great solicitude you can isolate any one of these pleadings and make sense of them.

But you're not required to interpret this in an isolated context.

When a complaint comes to the court it is to consider the whole complaint.

Unknown Speaker: But just because the fellow is psychotic doesn't mean he's not going to be raped.

Mr. Ching: Oh, certainly not.

My point here, though, is this particular psychosis is one that affects perception and the ability to deal and frame complaints which have some basis in reality.

Well, I am perfectly pleased to submit the matter at this point.

Chief Justice Rehnquist: Thank you, Mr. Ching.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

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Featured:

Murray v. Giarratano - Oral Argument

Sun, 06 Feb 2011 03:47:04 +0000

Case:

Murray v. Giarratano

Media File:

88-411_19890322-argument.mp3

Related Transcript:

88-411_19890322-argument.xml

Transcript:

ORAL ARGUMENT OF ROBERT Q. HARRIS, ESQ. ON BEHALF OF THE PETITIONERS

Chief Justice William H. Rehnquist: We will hear argument next in No. 85-411, Edward W. Murray versus Joseph M. Giarratano.

Mr. Harris, you may proceed whenever you are ready.

Mr. Harris: Thank you, Mr. Chief Justice, and may it please the Court, two years ago in the case of Pennsylvania versus Finley, this Court said that there is no Constitutional obligation on the States to provide counsel for State prisoners in State collateral attacks on State court judgments.

Since 1983, in Barefoot v. Estelle, this Court has repeatedly held that the rules for collateral review of presumptively valid final judgments do not change depending on the nature of the sentence.

The decision of the court below, the Fourth Circuit, is flatly inconsistent with these decisions of this Court.

The issue before this Court is whether to affirm the judgement of the Fourth Circuit and in the process undermine or overrule prior decisions of this Court.

I will briefly address some of the facts in this case, and then explain why we ask this Court to reverse the decision below.

The plaintiffs in this case are inmates under sentence of death.

They have been tried and convicted of capital crimes in the State courts.

Their convictions have been upheld on a mandatory appeal to the Virginia Supreme Court, a mandatory appeal that also includes a statutory requirement of sentence review.

They of course had counsel for trial, and on their mandatory appeal.

The focus here--

Unidentified Justice: You are not thereby suggesting that Virginia is particularly gracious toward prisoners of this kind?

It is one of the tougher States in the Union, don't you think?

Mr. Harris: --Your Honor, I am pointing out that Virginia meets the Constitutional requirements of counsel for the trials and direct appeals to the Virginia Supreme Court.

Unidentified Justice: That is your basic argument, that you are just within the Constitutional prerequisites?

Mr. Harris: No, sir, it is not that argument at all.

We think that we exceed many of the Constitutional requirements in the process of the trial and the direct appeal, particularly in the sense that in a Virginia direct appeal, the Supreme Court is obligated to conduct that separate inquiry on the proportionality of the sentence, and the excessiveness of the sentence, to decide whether that sentence is appropriate even on direct appeal.

Unidentified Justice: I am really suggesting that the Old Dominion is one of the tougher States in the Union.

Mr. Harris: We try to be in some respects, Your Honor.

Unidentified Justice: Mr. Harris, in that direct review, does the State Supreme Court review the entire record in every case?

Mr. Harris: The Virginia Supreme Court reviews the record on the errors of trial that are raised.

The Virginia Supreme Court conducts review of the entire record on the independent inquiry on the propriety of the sentence.

Unidentified Justice: But not on the merits of the original case?

Mr. Harris: It will review the errors that are raised by counsel.

Unidentified Justice: It does not necessarily review the entire record on the appeal on the merits of the conviction, does it?

Mr. Harris: That is correct, Your Honor.

But the focus in this case is not on the trial--

Unidentified Justice: And is that not rather unusual among the States of this country?

Mr. Harris: --As I understand it, practically every State has a rule isolating review to those claims that are raised by the parties.

Virginia has a rule that requires counsel to object at trial and to assign his errors on appeal, and those are the claims that the court will address on direct appeal.

Unidentified Justice: And of course, your rights of direct appeal are rather limited in the Old Dominion.

Mr. Harris: Not in a capital case, at all.

It is a mandatory, direct appeal as a matter of right.

Unidentified Justice: But generally, they are.

Mr. Harris: In other cases, there is an appeal to an intermediary court.

Unidentified Justice: Whom they recently installed, I might say.

Mr. Harris: Yes, Your Honor, within the last few years.

But again, the focus here is not on the direct appeals, and those procedures are not at issue in this case.

We are looking at post-conviction proceedings.

We are talking about proceedings that can only occur after a trial and after a complete appeal to the Virginia Supreme Court.

For those proceedings in Virginia, every one of Virginia's Death Row inmates has in fact had counsel to prepare, file, and present his petition to the State courts.

No Virginia inmate has filed a pro se petition for writ of habeas corpus in the State courts.

Now, Virginia does not automatically grant them a right to counsel for their State habeas corpus actions.

The State courts have the discretion to appoint counsel upon request for these inmates who wish to pursue collateral remedies.

Virginia provides, by State law, a petition for writ of habeas corpus to raise claims of Constitutional deprivation associated with the trial.

We do not require the automatic appointment of counsel from the beginning, but in any habeas case in Virginia where a petition is presented that raises a non-frivolous claim with a factual issue, Virginia law is that the court must at that point appoint counsel to represent that inmate in a habeas corpus proceeding.

Unidentified Justice: Are you talking just about capital cases, or about all collateral review?

Mr. Harris: In all habeas cases.

If you raise a non-frivolous claim that would require hearing, the Virginia Supreme Court has required for over 20 years that the trial court must appoint counsel at that point.

But the trial courts always have the discretion to appoint counsel at any stage of the habeas proceeding.

Unidentified Justice: And who determines whether it is or is not frivolous?

Mr. Harris: The trial court, and it is very similar to the summary judgement inquiry in the Federal courts.

We are talking about a claim that would say the legal claim for relief, and looking at whether or not the facts in support of that claim are in dispute.

Again, the record in this case will show that that discretion of Virginia's trial courts has been exercised on behalf of Death Row inmates.

Death Row inmates have, by some means, communicated to a trial court their desire to file a petition for a writ of habeas corpus.

And Virginia trial courts have agreed to appoint counsel and in fact have issued orders appointing counsel to prepare and present a petition for writ of habeas corpus in Virginia.

Few inmates, very few inmates, have asked.

The inmates in Virginia have relied on a privately set up system of volunteer attorneys.

Since 1983, there has been an organization that has been set up to recruit volunteer attorneys to represent these inmates in their habeas corpus actions.

They have been successful, but they became fearful that that system was in danger of collapsing, and as a result, they turned to the District court to compel Virginia to perpetuate their preferred system of getting legal assistance.

The District court ordered Virginia to do this, and premised this right to counsel on the right of access to the courts.

Our position is the right of access to the court in post-conviction proceedings does not include a right to counsel.

It is an entirely separate matter, and we know that from this Court's prior decisions.

This Court has never suggested--

Unidentified Justice: May I interrupt just a second, Mr. Harris?

You rely... you mention the background.

There is this independent volunteer organization that has, in fact, provided counsel, and that trial judges have in fact gone out of the way to get lawyers for the inmates in these death cases.

But your legal position would be exactly the same if none of that had happened, as I understand your brief.

If there were no private organization, if trial judge says well, it is just too bad, we are not going to appoint counsel... that would be Constitutional, I think, under your view.

Mr. Harris: --I am sorry, I do not think that I understand the question.

Unidentified Justice: Well, you have just described two ways in which prisoners in death cases have in fact gotten representation in collateral proceedings, one by the volunteer organization, and two by the judges on occasion appointing counsel.

And I am suggesting that under your view of the Constitution, that was not at all necessary.

The judge, if there were no volunteer organization, and if the judges never appointed counsel, you would say, that is just too bad.

I think that is your position.

Mr. Harris: I would say that it would not make any difference for this issue.

Unidentified Justice: Right.

Mr. Harris: Because we say there is no Constitutional right to counsel.

Unidentified Justice: And it would be perfectly consistent with the Constitution to have all collateral proceedings by prisoners in Virginia handled by the prisoner himself.

Mr. Harris: Consistent with the requirements that the Constitution does impose, of giving them some means of legal assistance to present their claims.

Unidentified Justice: And anything beyond that is simply a matter of grace, in your view?

Mr. Harris: Yes, Your Honor.

Unidentified Justice: Yes.

Mr. Harris: And in the matter of what this Court has required as some form of legal assistance, that comes under the right of access to the courts.

This Court has said that the States are obligated to provide some form of legal assistance to inmates so that they can have an opportunity to present their claims, to get into court with their claims, and to get their claims before a court.

In Virginia, if it is a colorable claim, a claim of some substance, they will have counsel to present it.

There is no possibility of an inmate litigating a claim himself in Virginia.

It will not happen.

As far as having legal assistance to get his claims together, to put them in that package and present it to the appropriate court, Virginia provides a wide variety of resources.

Bounds talks in terms of a law library or a form of legal assistance to get into court.

Virginia gives these inmates law libraries at the institutions.

Virginia gives these inmates a system of legal assistance in the institutions.

Lawyer assistance... lawyers are appointed for each of the institutions where these inmates could possibly be, to counsel and assist, to help them under the instructions that they have had now since--

Unidentified Justice: But do you think those lawyers are Constitutionally required, or is this again just something that Virginia does as a matter of generosity?

Mr. Harris: --Virginia has chosen to give these inmates more than what the law requires.

Unidentified Justice: My question is, do you think Virginia could have chosen otherwise?

Mr. Harris: If Bounds means what Bounds says, yes.

We have chosen to go beyond.

We have chosen to give them law libraries, we have chosen to give them legal assistance.

There is a method to have court-appointed counsel for individual representation for each one of these inmates.

Often--

Unidentified Justice: Because you have to do something.

Mr. Harris: --Yes, Your Honor.

Unidentified Justice: You have to have either a law library or some kind of legal assistance.

Mr. Harris: That is correct.

And we give them both.

We give them beyond that a real opportunity to have independent counsel appointed to represent them.

Now, nothing in Bounds, nothing in the cases before Bounds, Johnson v. Avery, Ross v. Moffitt, ever suggests that there was a right to counsel and a right of access.

Two years ago, in the Pennsylvania v. Finley case, this Court made it perfectly clear that the Constitution does not require States in their own proceedings, collateral proceedings to their criminal cases, to provide counsel for the inmates in those proceedings.

The distinction here--

Unidentified Justice: That was not a capital case.

Mr. Harris: --It was not, Your Honor.

The distinction here is not the sentence, the distinction here is the nature of the proceedings.

They are collateral.

Unidentified Justice: Do you really believe that?

Hasn't this Court said many times that death is different?

Mr. Harris: This Court has refused to create special rules in post-conviction proceedings.

I think I agree, this Court has on many occasions said death is different, and each time, this Court was looking at the trial, and the sentencing process at the time of trial.

As far as--

Unidentified Justice: Why do you think that a majority of the States with capital punishment have, by statute, created a right to have counsel in matters of this kind?

Mr. Harris: --I do not think that is correct.

I will point out that in the--

Unidentified Justice: I think there are 19.

Mr. Harris: --In the plaintiffs' briefs submitted to this Court, it is indicated that, I believe, 18 States have a method of providing automatic appointment of counsel in all habeas cases.

We are not talking about capital cases, but in all habeas cases.

In many of those, at least six of those, it is after something has been filed that counsel is automatically appointed.

Unidentified Justice: The point was just that they do not always provide counsel to help people prepare a habeas petition.

Mr. Harris: That is correct.

Several of them require the prior filing of a petition, and then there will be automatic appointment of counsel.

In many respects, that is what we have already available in Virginia.

With the legal assistance available to the inmate at the institution, he can file a petition raising some colorable claim.

He is never locked into that petition.

Virginia has a policy of liberal amendment of its petitions to allow inmates, if they have the initial petition with a colorable claim, if the court appoints counsel to represent them... they can do further inquiry and at that time develop their claims further.

They are not frozen in time to that initial document that they present to the State courts.

The courts below attempted to distinguish Finley because it was a death case.

It was not a death case.

But I think the issue is closed, that the Constitution does not... this Court has made it clear... the Constitution does not require a separate set of procedural standards or procedural review for capital cases.

This choice has made the decision to focus on the trial, to focus on the sentencing.

That is where the determination is made that these inmates are going to be convicted.

That is where the decisions are made of guilt and innocence.

That is where the decision of sentence is made.

This Court has focused on that forum.

That is the forum our legal system has created for deciding these issues.

This Court has not decided to require additional proceedings to constantly review these matters.

The courts below ignored the rulings of this Court, and created a new Constitutional right.

The procedures that are in place in Virginia are severely underutilized.

They have never been used by these inmates.

They have instead preferred to rely on an alternative way of getting counsel.

The District court has created a new right to counsel to solve a problem that has not been shown to exist.

These inmates have all had counsel.

No inmate has filed a pro se petition.

But there is a problem if a Constitutional right is created.

The difficulty that we see with a Constitutional right in habeas corpus proceedings is that we are inviting another complete round of litigation challenging final judgments, presumptively final judgments, presumptively valid final judgments, of the State courts.

We are inviting inquiries into the competence of habeas counsel.

We are inviting another separate proceeding on an issue that is wholly collateral to the sentence itself.

Rather than discard this prior Court's decisions, and rather than seek to create a new right to counsel, we would ask this Court to reaffirm its prior decisions.

We would ask this Court to reaffirm the principles of comity, of recognizing the interests of the States in its own proceedings, and the interest of finality in recognizing that presumptively valid judgments are entitled to that respect.

And we would ask this Court to reaffirm those prior principles and reverse the decision of the court below.

Unidentified Justice: May I ask just one other question on this notion of finality?

No matter what you do, it seems in these death cases that sooner or later somebody does file a collateral proceeding, and even... it has happened in almost every death case that I am familiar with, anyway.

It is very rare that you do not have these proceedings.

I am just wondering if you did have a procedure whereby you automatically appointed counsel promptly.

Don't you think that might tend to accelerate the disposition of these proceedings, rather than waiting until the inmate can put together the kind of papers that they generally institute these proceedings with?

Mr. Harris: There may be some incidental shortening of the time at that very initial stage if the inmate were to make a request for counsel.

The problem is, the inmate has no incentive, other than the fact that we might set an execution date if he does not file.

Unidentified Justice: Well, that is quite an incentive.

Mr. Harris: It is quite an incentive, and it is one that we prefer not to do hastily.

In the past, when a volunteer attorney has been contacted, or when we talk to any attorney who has indicated that he was representing these attorneys, all we have done is to find out, do you intend to file promptly?

And if he says he does, we do not rush out and set an execution date.

If he files promptly, it will be handled in the usual--

Unidentified Justice: Well, I was thinking a little bit ahead.

The papers suggest that the volunteer system is on the verge of breaking down.

I do not know.

I understand there are quite a few Virginia lawyers who work very hard in some of these cases, and there is not an inexhaustible supply of counsel who will take the cases without being paid.

I was just thinking, if this system does break down, you may actually find yourselves creating a system that might have more delay built into it than if you had prompt and automatic appointment.

Mr. Harris: --Well, again, we think we may in fact have a system that allows for prompt and automatic appointment, if the inmate simply asks the circuit court to appoint counsel.

The circuit court has the discretion.

We have represented in the record in this case, we are willing... the Office of the Attorney General is willing... to join in such requests.

Unidentified Justice: That is not going to help much.

The real problem is having help to get the petition filed in the first place.

Mr. Harris: All I am talking about is filing a motion for appointment of counsel, a one-page document that says, "Get me a lawyer".

Unidentified Justice: How do you file a motion... you mean, even before anything else is filed?

Mr. Harris: We have said, the trial court has the discretion to do that very thing.

And we have lawyers in the institutions who are certainly capable of drafting a motion for appointment of counsel to get these inmates into court.

Unidentified Justice: But the trial court has discretion to grant or deny such a petition, I take it?

Mr. Harris: There is no guarantee that the trial court will do it in every instance.

I would suggest that it is--

Unidentified Justice: If we ruled in your favor, would it be acceptable or recommended that we relax the requirements of for cause showing on Federal habeas, so that if it is a pro se litigant we are less strict about procedural bar in Federal proceedings?

Mr. Harris: --I don't know the Court needs to look at that issue for one particular reason.

The evidence in the record in this case was that the plaintiff's expert was unaware of any inmate who had ever litigated a habeas corpus petition pro se in a death case.

There is not this nationwide crisis of pro se inmates litigating death sentences.

The expert testimony in this case was that everyone had had a lawyer, and we note from the record in this case that everyone in Virginia--

Unidentified Justice: Well, but you are asking us to adopt a rule that you do not require a lawyer.

That is what you are asking us to do.

Mr. Harris: --That is correct, Your Honor.

The existing rule is that there is no right to counsel, so I would ask that that rule be retained.

Unidentified Justice: Mr. Harris, I do not understand what you have been telling us about all you have to do is file a paper with the District Judge in Virginia, saying I want counsel.

And then it is within his discretion to grant counsel or not?

Mr. Harris: That is one of the means of obtaining it.

Unidentified Justice: When that paper is filed, he does not know anything?

Mr. Harris: That is correct.

Unidentified Justice: On what basis does he exercise his discretion?

I like the fellow's name, I do not like the fellow's name?

What does your office do when it goes in to urge that the motion for counsel be granted or not granted?

All he knows is the person's name, and that he is on Death Row, I suppose.

Mr. Harris: The motion would be filed, in all instances, with the judge who is the presiding judge at trial.

We are talking about a judge who has heard of this inmate before, in other words.

Unidentified Justice: I see, the judge who conducted the trial.

Mr. Harris: It would be the very same judge who tried the case.

What we have said is that if that inmate makes it known to the trial court that he is interested in pursuing habeas corpus relief, and that he would like to have the appointment of counsel to represent him and to help him file his petition for writ of habeas corpus, that we have, for our own reasons, as you have indicated, expediting this matter in some way, we will join in that motion, and get the matter going.

Unidentified Justice: To have counsel appointed?

Mr. Harris: Yes, Your Honor.

Unidentified Justice: So long as he files?

Mr. Harris: It is more convenient for us to deal with a lawyer representing an inmate in a death case than it is a pro se inmate.

And it is certainly going to be more convenient for the court considering the case.

And it is for those reasons we expect that the trial courts will in fact grant these motions.

I agree, it is discretionary.

We cannot guarantee the courts could do it in every case.

But we can guarantee that that inmate will have available to him, at the institution, assistance to get into court and ask.

And we can also guarantee that if that Court should, for whatever reason, decline to grant him that discretionary appointment of counsel, that he still has available to him back at that institution legal assistance in excess of what Bounds requires to file a petition raising claims.

Presumably, if he has a valid claim... we cannot guarantee he is going to have a valid Constitutional claim... our system is geared to make certain that he doesn't.

But if he has a valid claim, it will be heard.

If he has a claim that would require any kind of hearing, he will have counsel.

Unidentified Justice: May I ask you, on these appointments by the trial judges, pursuant to this discretionary authority, are counsel compensated in the same way as they are in the original trial itself?

Mr. Harris: There is no cap on their compensation.

They are compensated in the amount deemed reasonable by the trial court.

Unidentified Justice: But it is the same procedure, basically, as it is for the trial itself?

Mr. Harris: That is my understanding.

From the testimony in this case, ordinarily vouchers would be submitted indicating the time that they spent, and then the Court would allow a fee for that time.

Unidentified Justice: But the fact of the matter is that most of the inmates have instead used the volunteer organization, have they not?

Mr. Harris: We only have evidence in this record of three instances where inmates have ever even sought appointment of counsel before a petition was filed.

In two of those instances, the trial courts appointed counsel.

Unidentified Justice: And what happened in the third?

Mr. Harris: In the third, the trial court did not.

Unidentified Justice: I see.

Mr. Harris: The record in this case contains the order from the trial court in that case.

We had defended in the lower courts on the basis that he had counsel at the time that motion was made.

There are some questions to be concerned about that case, but still, there is nothing in the record to indicate that that inmate ever made any use of the resources available to him at the institution.

Unidentified Justice: Is this group of lawyers different from the group that tried the cases?

Mr. Harris: Yes, Your Honor, in every case.

It is not the same as the trial attorney.

Unidentified Justice: I was wondering about that.

They say the lawyer was inefficient because I was convicted.

You do not have that problem?

Mr. Harris: Inmates often do raise that very claim, yes, Your Honor.

Unidentified Justice: But it is... it is still this rumor or possibility of a shortage that does not exist as of now.

As of now, everybody gets a lawyer who wants one?

Mr. Harris: As of now, every inmate has had a lawyer.

Unidentified Justice: Right.

Mr. Harris: As of now, we think there are systems in place that will make certain that any inmate who makes a request will get a lawyer.

It is not guaranteed.

It is possible that he may have to rely on the resources available to him at the institution.

But we would say, that institution is much more than is necessary for him to get his claims in front of the Court.

In any case in Virginia, whether it is a death case or any other case, if the inmate makes some colorable showing of a claim, counsel will be appointed.

Unidentified Justice: Mr. Harris, you may save the rest of your time for rebuttal.

Mr. Zerkin?

Mr. Harris: Thank you.

ORAL ARGUMENT OF GERALD T. ZERKIN, ESQ. ON BEHALF OF THE RESPONDENTS

Mr. Zerkin: Mr. Chief Justice, and may it please the Court, in their effort to conjure up the specter of additional rounds of litigation in death penalty cases, the Petitioners have misrepresented the nature of the Constitutional right recognized by the District court, and exaggerated the scope of the relief granted by it.

In fact, the courts below did not rely upon or create a right to counsel.

Rather, the courts simply applied the rule in Bounds and its progeny to the particular circumstances of Virginia's Death Row and of capital post-conviction litigation, and ordered only a small--

Unidentified Justice: Which gave each of them a right to counsel?

Mr. Zerkin: --Which gave each of them attorneys to assist in the preparation and investigation of their claim and the preparation of their petitions.

Unidentified Justice: What is the difference between that and a right to counsel?

Mr. Zerkin: Well, it is different in terms of right to counsel being a term of art that has certain implications under the Constitution.

That is what they have attempted to do in this case.

This Court recognized--

Unidentified Justice: What is the difference between saying that you do not have a right to counsel, or in saying that you do not have a right to the kind of attorney that is to be appointed for you in this case?

What is the difference?

Mr. Zerkin: --The difference has to do with the fact that we do not have the Court creating a right which is somehow enforceable in a collateral proceeding on a new habeas corpus, which is the specter which the State is attempting to create here.

Unidentified Justice: How do you know it is not enforceable in the new habeas proceeding?

Mr. Zerkin: Well, theoretically... I mean, it is not as a conceptual matter.

The performance of the habeas attorney, even assuming that he does a poor job, does not go to the validity of the original sentence and conviction.

Therefore, it is not even a subject of a new habeas corpus action, because you are... when you are challenging the effectiveness of habeas counsel, you are not challenging the validity of the original sentence and conviction.

So, you cannot bring a new habeas action.

Indeed, the Fourth Circuit specifically dealt with this issue in the Whitley case.

Mr. Whitley raised... brought a second challenge in which he claimed the ineffectiveness of his habeas counsel.

In that second Whitley case... it was a successor petition... the Fourth Circuit said you cannot do that, and Mr. Whitley was in fact executed on schedule.

So, the Fourth Circuit jousted with this and resolved it already.

Now, what is different here is--

Unidentified Justice: So, in your view, the right which you are claiming, or the relief that you are claiming, would be satisfied by the courts appointing incompetent counsel?

Mr. Zerkin: --No, sir, we do not say that.

The Court... we believe that the level of assistance that can be provided, that is being provided in any Bounds case can go so low that meaningful access is not being provided.

If I might give an example, in the McCall cases to which this Court ordered an inquiry, a response by the State as to the right to counsel in preparing a habeas petition, the institutional attorney at Mecklenburg, who was in fact partly the subject of this litigation, filed a habeas petition that included a non-Federal claim.

Now, I would suggest to the Court that that is not meaningful and effective assistance of counsel.

So--

Unidentified Justice: So part of the relief you are requesting is a Constitutional rule that capable, competent counsel be appointed to give rights of access to the court.

Mr. Zerkin: --Yes, In death penalty cases on Virginia's Death Row.

That is correct.

Unidentified Justice: If some other district court in North Carolina were to reach different conclusions, Death Row inmates in North Carolina would not have any right to counsel.

Mr. Zerkin: The question is whether or not--

Unidentified Justice: Well, can you answer my question?

Mr. Zerkin: --The result would... it depends on the facts of the case.

We have a two day trial here.

Unidentified Justice: Well, look.

I asked you a question that I think is capable of being answered by yes or no.

Please try to answer it that way.

Mr. Zerkin: I will try.

Unidentified Justice: If a district court hearing evidence in North Carolina had reached a different conclusion than the district court in the Eastern District of Virginia, and said no, there is not any right to counsel of the sort that Judge Merhige found, then the rule in North Carolina would be different than the rule in Virginia.

Mr. Zerkin: No, sir, my answer to that is no.

The reason is because the issue first of all was an issue of access, and if a system existed in North Carolina, which in fact it does, as a result of the Bounds litigation itself and the Fourth Circuit's most recent affirmance of the district court's action in Bounds which provided attorneys, then in fact if that access is being provided, then the violation of the right would never occur in the first place.

Unidentified Justice: Well, supposing the district court in North Carolina said we think it is enough that there are law libraries like Bounds required at the institutions... even in the case of death penalty inmates... so we do not think there is any necessity for having appointed counsel.

Mr. Zerkin: If that decision was supported by the factual record in the case, then it could reach that conclusion.

The problem here is--

Unidentified Justice: So you would have a right to counsel in Virginia, but not in North Carolina?

Mr. Zerkin: --I disagree with the premise that we are dealing with a right to counsel.

That is my difficulty in asking the question directly.

We are dealing with access, and the question would be whether or not the fact... the district court's findings in North Carolina... that there was access, and therefore no violation of the right to access under Bounds was supported by the evidentiary record in that case.

That is the very confusion that they create, and that is created by defining this as a separate right, that is, the right to counsel.

What has happened here is that the court looked at Bounds, looked at the specific circumstances, determined that there was a violation of Bounds under the facts, and then using its discretion as a court of equity, fashioned a remedy.

In fact, what the district court did was, it did not even order the nature of the system that the State had to give.

All it said was, the only adjustment we want you to make is, appoint counsel pre-petition.

How you go about arranging that system is up to you.

It did not dictate any of that to the State.

The State in fact, did not respond except by providing a memo to circuit court judges that said,

"If you get a request, appoint counsel. "

Now, the petitioners... one of the problems here, and we see it so far in the argument, is that they have attempted to ignore the factual record in the case.

The Petitioners have insisted throughout this litigation that institutional attorneys are available to prepare and file habeas petitions, and thus they were meeting their affirmative obligations under Bounds to provide meaningful access.

In fact, at the penitentiary where death-sentenced inmates are housed entirely separated from the rest of the prison population during at least the last 15 days... the critical last 15 days before their execution... the institutional attorneys at the penitentiary did not even appear at that--

Unidentified Justice: Excuse me, why are the last 15 days critical?

I mean, I would assume that if there has been a mistake in your conviction, you want to get that before the courts as soon as possible.

Mr. Zerkin: --Yes, I would agree, Your Honor.

The reason that it is critical--

Unidentified Justice: I mean, I am sure that every day is more important as it gets closer and closer, but I do not see why, legally, it is more critical.

Mr. Zerkin: --Well, the reason that I just said it is from what Your Honor just suggested, which is that if a petition has not been filed, then obviously that last period of time is the most critical, because time is running out.

Unidentified Justice: But it should have been filed.

I mean, the critical time is the time before that 15 days.

Mr. Zerkin: I agree, and unfortunately the access is not being provided at the earlier stage to ensure that, either.

Unidentified Justice: Just because then are housed in a separate part of the facility during the 15 days before the date of execution?

Mr. Zerkin: No, sir, that does not... in itself--

Unidentified Justice: What is the average space between the date of conviction and the date of execution?

Do you have any idea what the average is?

Mr. Zerkin: --No, but typically what happens is--

Unidentified Justice: Six months?

Mr. Zerkin: --No, less.

Less.

Typically what happens is that by statute it has to... the date must be 30 days after the date is imposed.

You have to give 30 day leeway.

Typically what happens is that after affirmance on direct appeal, sometimes prior to denial of cert by this Court, if cert has been requested, sometimes after the inmate is brought back before the circuit court judge, and a date is set.

I would suggest that it is more like 90 days than it is to 180.

But the difficulty is that the access is not being provided at Mecklenburg on Death Row itself before that time.

And the facts in the case amply demonstrate that.

The--

Unidentified Justice: Mr. Zerkin, before I lose the thread of your thought, you never did tell us what happens in this last 15 days.

Mr. Zerkin: --What happens in the last 15 days is, he is in the death house, isolated from the rest of the population at the penitentiary.

There are... there was a period of three months where the institutional attorneys assigned to that facility did not even appear at the institution.

He has no access to a law library at all.

So, at that point, no access is being provided in any fashion.

In addition, at Mecklenburg, prior to that... and what the Petitioners in this case ignore is the fact that the institutional attorneys had informed the inmates that they did not do death cases.

In fact, the record shows that Mr. Giarratano filed a grievance concerning the lack of assistance for Mr. Boggs and for Mr. Watkins, and that that grievance was ignored.

In fact, neither of those inmates even had a complete trial transcript, and the institutional attorney did not even attempt to obtain Mr. Boggs' transcript during the pendency of this action.

Equally important, the district court found as a factual matter that even assuming that institutional attorneys are available, given the nature of death penalty litigation, these inmates need more than the sporadic assistance of talking law books to ensure meaningful access.

Unidentified Justice: Well, if Virginia is not living up to its duty under Bounds to provide access to these Death Row people, I would suppose that it is also falling its duty under Bounds to non-capital inmates.

Certainly I would say a fortiori that they are not.

Mr. Zerkin: Not necessarily, Justice White, and the reason is that... and they may be.

They have something like eight attorneys for 2,000 inmates.

But the reason that it does not necessarily apply is because the institutional attorneys, as to Death Row, have told the inmates that they do not handle capital cases.

They have not told that to the population at large, but the evidence establishes that they did tell that to the Death Row inmates.

We also know that as to Death Row, Mr. Giarratano filed a grievance about the lack of held from institutional attorneys, and that that request was denied.

Unidentified Justice: Well, what about the library?

Mr. Zerkin: The... at Mecklenburg, the problem with the library is that the access is limited to two and a half hours twice a week.

Now, in a normal... and this is what is critically different about death penalty litigation... in a normal case where an inmate has a term of years to prepare his habeas petition, two and a half hours twice a week may give him enough time to prepare a petition over the course of a year.

This inmate is going to be dead in 90 days.

He does not have... he cannot take that two and a half hours twice a week and stretch it out for however long it takes for him to prepare a petition.

If we are dealing with a population in particular which has a lower intelligence level than the general population to begin with, what we end up with... and even without that, but particularly with that... it is absurd to think that that inmate, given the complexity of capital litigation, can possibly prepare a meaningful habeas petition during that 90 day period when on top of everything else, he has the threat of execution hanging over his head.

It is difficult enough for us to sit down in a law library that is nice and quiet and figure out capital litigation.

You are asking this man with the clock ticking, who has no education, to prepare a habeas petition within 90 days.

Unidentified Justice: Counsel, do we have a situation where a Death Row prisoner has asked the institutional attorney for help and been refused?

Mr. Zerkin: Yes, Justice O'Connor, we do.

In fact, we have--

Unidentified Justice: Is that this case?

Mr. Zerkin: --Yes, we do.

In fact, we have more than that in this case.

And Mr. Washington's case is perhaps the best example.

Mr. Washington, in fact, did everything that they suggest and he came up empty.

He not only... he did not write to the court, he appeared in court, in front of the sentencing judge on the date his execution was being set, and he said, through his attorney, who stated to the judge that he was not going to represent him on habeas... in fact, he was not going to represent him on habeas because the Assistant Attorney General had told him he could not, because he had been trial counsel.

He made the motion at that time for appointment of counsel, and the circuit court judge denied the motion on the very specific grounds that it is not available.

The appointment of counsel for habeas is not available in Virginia until an evidentiary hearing is granted.

So, in fact, when counsel suggests that this does not happen, in fact it has happened.

Mr. Washington's situation is actually even worse than that, because his situation was... Mr. Giarratano filed this case pro se, this case, prior to the Washington situation reaching that crisis.

Mr. Giarratano wrote to the district court judge about Mr. Washington's situations, and that was treated as an amendment to the pleadings.

The AG's office at that point was served with it.

They knew that Mr. Washington wanted counsel, that he had been denied counsel, and that he was receiving no assistance... and yet no assistance was provided.

In fact, Mr. Washington was then transferred, and here we get to the critical 15 days, because time... he still did not have access.

He goes to the penitentiary, and he continues to tell the Attorney General's office, who is supervising the death house, that he wants counsel... he wants to proceed.

Unidentified Justice: Of course, we have never said that he had to be given counsel, have we?

We said that he had to be given access.

Mr. Zerkin: But he has no... he does not even have the assistance at that point of an institutional attorney to assist him in preparing.

Remember this... part of their position is that the system, what system exists, they say all you have to do is--

Unidentified Justice: We will resume there at one o'clock.

0 [Recess.]

Mr. Zerkin, you say resume.

Mr. Zerkin: --Thank you, Chief Justice Rehnquist.

I believe I was attempting to respond to Justice O'Connor's inquiry concerning the facts of a request for assistance from the institutional attorneys, and what has come of all of that.

As part of that, I wanted to point out, and again in the record, and emphasize that this was tried on the facts, and there is an ample factual record in this case.

Of course, we have been through Mr. Washington's requests for counsel when he appeared in front of the trial judge, and it should also be noted that Mr. Washington has an I.Q. of 69.

In addition, it should be noted that contrary to counsel's suggestions this morning, the Attorney General did not join in the motion in front of the circuit court judge when Mr. Washington made the request for counsel.

In fact, the attorney who was present was silent through that, and sat silently while Mr. Washington was denied that appointment.

Although in the original trial record we were dependent upon the order that is part of the Appendix, just the other day the State lodged with this court the actual trial transcript of the hearing in which Mr. Washington was denied counsel.

And the Court will see that in fact our scenario of what happened there is very accurate.

In addition, however, Mr. Giarratano had talked to the institutional attorney specifically about helping Mr. Washington.

The institutional attorney did nothing to assist him.

Subsequently, of course, Mr. Washington was transferred to the State penitentiary, and the general rule for the institutional attorneys at the State penitentiary is that these, the assistance they are to provide, is not intended to be very complex.

Indeed, the general rule is that they are only supposed to devote one hour to an inmate.

In fact, while Mr. Washington was there, the institutional attorneys did not visit the institution and did not know... did not know... that Mr. Washington was present, despite the fact that he continued to indicate, and the Attorney General knew, that Mr. Washington wanted to proceed with habeas corpus.

In addition, Mr. Kulp, the senior Attorney General in charge of capital litigation, testified at trial that they would indeed have executed Mr. Washington even though no papers were filed on his behalf, and even though no volunteer attorney was forthcoming, and clearly even though no institutional attorney was brought down to assist him, and even though clearly he had no access to a law library.

Mr. Giarratano also filed a grievance concerning Mr. Watkins and Mr. Boggs, the intervenor plaintiffs in this case.

And Mr. Boggs and Mr. Watkins remained without any assistance from the institutional attorney for a year, even during the pendency of this lawsuit... so even while they knew that this was at issue, for a year they remained without any assistance, and indeed the institutional attorney visited them at their cell, obtained part of the record, and did nothing more.

As I indicated before, in the case of one of them, he did not even attempt to get the completed transcript.

At trial, Judge Merhige asked him about that, and he said, well, at some point I am going to have to do that.

Now, the only reason that this dragged on for this year was because this case was pending at the trial level, and so no one proceeded to set execution dates for Mr. Boggs and Mr. Watkins while they were receiving none of this assistance, because of the pendency of this case.

However, it is clear from prior practice, and it is clear from the experience of Mr. Washington that had this case not been pending, and even though they were receiving no assistance, that the State would have proceeded to set execution dates and would have proceeded in fact to execute them.

In addition, we have the instance of Mr. Evans, Wilbur Evans, who proceeded Mr. Washington on Death Row.

Mr. Evans got as far as three days before being executed.

He, too, was in the Death House of the penitentiary, and a volunteer lawyer appeared and filed papers on Mr. Evans' behalf.

What is significant about that is that subsequently, as part of Mr. Evans' habeas petition, the State confessed error.

His sentence was reversed not merely because he won through litigation.

The State actually confessed error in Mr. Evans' case, and yet they were prepared to execute him at that point, even though he had no assistance.

Mr. Giarratano, in addition, while he was in isolation asked for the assistance of the institutional attorney, and also asked for access to the law library.

He was refused as to both of those.

He received neither the assistance of the institutional attorney, nor was he allowed access to the library.

Unidentified Justice: What was the error that was confessed?

That was Evans' case?

Mr. Zerkin: Yes, Your Honor.

The error--

Unidentified Justice: The merits error, or what?

Mr. Zerkin: --As to... they had relied upon convictions from the State of North Carolina that were invalid.

Unidentified Justice: Oh, so it went to the sentencing?

Mr. Zerkin: Yes, sir, and he received new sentencing.

That is correct.

There is another particular factor that supports the district court's decision that makes death penalty litigation completely different from other litigation, and that is the procedural need to obtain stays in order to litigate your claim.

I mean, you cannot have meaningful access if you do not obtain a stay in the meantime.

And Justice Scalia has questioned the relevance of this last 15 day period when he was at Mecklenburg before that.

I would suggest two responses to that.

Which... the first one is, of course, that they were not receiving access while they were at Mecklenburg.

But the other is that it may well be that once... even if he has received some assistance prior that it is necessary to obtain a stay, and it may very well be within that last 15 days.

Now, something critical happens here.

The attorney who is providing the advice at Mecklenburg, and is allegedly helping to prepare these papers, even though in fact we know they do not... he gives up jurisdiction over this inmate when this inmate is transferred to the penitentiary.

So even assuming that he is beginning to work on this case, he throws up his hands as soon as the inmate leaves and is sent to the penitentiary, and now, 15 days prior, an institutional attorney who is supposed to devote one hour to a case, who has no prior knowledge of this inmate, now must pick up the ball, presumably, somehow, even though there is no explanation for this, get the work product of the institutional attorney at Mecklenburg, if there is any, and proceed to obtain this stay and get this habeas petition filed if it has not been filed already.

It is also significant to this kind--

Unidentified Justice: Let me ask you... I meant to ask you earlier, when somebody on the other side made the objection that you will have a challenge to whether the counsel you had was adequate.

What is your response to that... to an endless series of yes, you gave me access, but with counsel that was not really good enough counsel, and therefore I did not have access, and therefore I am entitled to do it all over again?

Mr. Zerkin: --Well, as I indicated to Chief Justice Rehnquist, that does not result in a new habeas petition, because theoretically that is not a basis for habeas corpus.

What--

Unidentified Justice: What does it result in, then?

Mr. Zerkin: --What it could result in would be what would exist even at the present time, which would be a claim that he had been denied access under Bounds.

It could be done in the context of 1983.

Now, what is interesting about that is--

Unidentified Justice: Yes, except that the basis for that Bounds claim would then be the inadequacy of his counsel, right?

Mr. Zerkin: --No, I disagree with that.

I think that the basis of that would be within... under the standard of meaningful access, which I think is very different from a standard of effective assistance of counsel... that could be raised.

But even--

Unidentified Justice: Well, I do not understand that.

Wait a minute.

You--

Mr. Zerkin: --The standard--

Unidentified Justice: --Could you give him ineffective counsel, and you think that would be adequate?

Mr. Zerkin: --I think that the Constitutional standard of ineffective assistance of counsel, and the standard for providing meaningful access, are not necessarily the same.

I think, in fact, that they are different.

I think that there is a lower standard as to the performance of providing access.

Unidentified Justice: Maybe you do not need counsel at all, then.

Mr. Zerkin: Well, we think clearly that you do need counsel, and there are a number of reasons for that.

Unidentified Justice: But not necessarily competent counsel?

Mr. Zerkin: Well, we would like to have competent counsel.

Unidentified Justice: But it is enough if he is incompetent?

Mr. Zerkin: No, we would not say he is incompetent.

Unidentified Justice: But incompetent counsel does not have to be counsel.

You can have competent non-counsel who is incompetent counsel.

Mr. Zerkin: Your Honor is drawing a line distinction that says attorneys are either one or the other, and I suggest to the court that within the concept of meaningful access, there are certain things which that attorney must do in order to provide meaningful access in a capital case.

He must review the record.

He must examine the briefs.

He must interview the inmate.

He must talk to the trial counsel, so that he can develop claims of ineffective assistance.

That is particularly important in Virginia, where the Virginia Supreme Court does not review the entire record for error.

Therefore, as this Court noted in Kimmeiman, it is only an attorney who is likely to be able to see claims of ineffective assistance of the trial counsel.

We believe that the system that should be set up... and again, Virginia has not--

Unidentified Justice: But nonetheless, after the habeas proceeding is completed--

Mr. Zerkin: --Yes.

Unidentified Justice: --With counsel that has been provided somehow, there would still be a claim remaining that that proceeding was itself inadequate because you would not call it ineffectiveness of counsel, you would call it--

Mr. Zerkin: Lack of access.

Unidentified Justice: --Lack of access.

Mr. Zerkin: Yes, there would.

And what is interesting then is how that--

Unidentified Justice: But you would not need counsel for that last proceeding?

That would really be the last one.

Or would you need counsel for that one, too?

Mr. Zerkin: --No, sir.

What is interesting about that is that that would then fall within the class action order that is part of this case, and so the issue of whether or not that inmate had received access would be defined in terms of whether or not the Petitioners in this case were complying with the order of the district court that required them to provide access.

So, actually, the advantage of it is that rather than simply having any inmate who even now has the ability to bring a 1983 action claiming that he has been denied access... that in fact, the results of that, that all of those on Death Row would be consolidated within the scope of this action, and it would... the question would be whether or not the order of this district court was being violated.

So, in that sense, I think that in fact it consolidates them, rather than creating additional problems.

Unidentified Justice: If you found that the order was being violated, then I suppose all capital sentences would be stayed?

Mr. Zerkin: No, Your Honor, only as to... only as to an inmate who was immediately facing execution, and as to--

Unidentified Justice: How would you define "immediately facing execution"?

Mr. Zerkin: --Well, I think within the standard definitions of what one is allowed to... the basis of a temporary restraining order or a preliminary injunction.

If we determined that as to a particular inmate, he was not receiving access, then indeed it would be our obligation as class counsel to file an appropriate motion with the district court to indicate that this inmate was not receiving that counsel.

Nothing can prevent anyone from filing a claim.

I think the legitimate concern... the legitimate concern is whether or not the ability of the inmate to make a claim that he is not receiving access will result in additional proceedings and a delay of the execution.

That is what this court has repeatedly indicated it has a problem with.

The question is not whether he can file it.

The question is whether or not he can stave off the execution by doing it.

We know, in fact, from Mr. Whitley's case that he failed.

He was executed on schedule.

That would seem to be the concern.

Now, the problem here is that what is being raised are problems which the State has within its power to prevent... that is, rather than simply doing what they did, which was in response to the judge's order, which was issuing this memorandum to State circuit court judges and then throwing up their hands as to any further responsibility... if they set up a system which indeed assured that these institutional attorneys would assist, that had some monitoring aspect of it, then indeed they could avoid the very problems that the Court is concerned with.

The reason that those problems potentially exist is that Virginia has been totally non-responsive to the district court's order.

In fact, what is interesting in this case from the papers filed that are part of the Appendix, that were filed in the Fourth Circuit in connection with the motion to stay the mandate is that even in response to the district court's order, what it required was that I had to repeatedly write letters to the circuit court judges reminding them of Judge Merhige's order, and asking them to appoint counsel.

They did absolutely nothing to effectuate the order of the district court.

So, these theoretical problems are within the power of the State to prevent.

The mention... one of the problems that we have here is that death penalty litigation does not necessarily proceed on the orderly course on which other litigation proceeds, and this Court is well aware of that.

One of the problems is that if a stay is denied by a State circuit court judge, it is necessary to proceed at a higher level State court, or in Federal court, in order to obtain a stay in order to litigate those claims.

If you do not have an attorney monitoring that, bringing the motion for a stay to the attention of the judge... indeed, in Virginia, circuit court judges still circuit-ride.

We have under the code circuits that have 10 separate counties and two judges.

There is no automatic provision for any of these filings to be brought to the attention of the circuit court judge.

Indeed, if the order is entered, the inmate has no way to even know that it has been entered.

He has no basis for knowing at what point it is necessary for him to prepare and file papers either in the Virginia Supreme Court or in the United States District Court.

None of this can be done without an attorney, and it is applicable only to death penalty cases.

Now--

Unidentified Justice: Well, did the district court order cover help, legal help, in filing Federal post-conviction writs?

Mr. Zerkin: --No, Your Honor.

That problem has been solved by virtue of the passage of the anti-drug bill, in which the Federal Courts now, under that statute, will appoint counsel in Federal habeas upon request in any death case, State or Federal.

So, the district court denied that.

The district court envisioned that that State habeas attorney would in fact file the petition in Federal court and the Federal court would then appoint and the Federal Government would pay for that.

But that problem has been taken care of now.

Unidentified Justice: I suppose then that the inmates in Virginia could go right into Federal habeas if they do not get any help?

Mr. Zerkin: Well, it creates an interesting dilemma, and it is somewhat responsive to what Justice Kennedy asked before.

That is, imagine the chaos of this, that not having any access into State court.

The inmate writes a letter to the district court and says appoint me counsel so I can proceed on Federal habeas.

They appoint counsel.

This attorney, who has now been appointed under the Federal statute for Federal court now has this host of unexhausted claims.

Is that attorney now supposed to proceed either under payment by the Federal Government or pro bono, or is he supposed to simply say,

"That is too bad. "

"You have these legitimate claims, but you have not exhausted them, and therefore I cannot help you in Federal Court. "

Unidentified Justice: Thank you, Mr. Zerkin.

Mr. Harris, you have seven minutes remaining.

REBUTTAL ARGUMENT OF ROBERT Q. HARRIS, ESQ. ON BEHALF OF THE PETITIONERS

Mr. Harris: Thank you, Mr. Chief Justice.

The first point that I would like to correct is the suggestion that was made here this morning that there was somewhere in the line of 90 to 180 days between the time of sentencing and the time of execution.

The average time in Virgin between the imposition of sentence and execution is roughly seven years.

The average time for getting a conviction affirmed in the Virgin Supreme Court is eight months.

This is not a rush to judgement in these cases.

On the matter of Mr. Washington's motion for appointment of counsel in the circuit court, the record does show that seven weeks after this court denied cert on his direct appeal, he appeared in the circuit court for purposes of setting an execution date.

He appeared with counsel.

His attorney asked the court to appoint counsel to represent him, telling the court that he knew his client was not entitled to it.

He also represented to the court that a volunteer group, the ACLU, was looking to find an attorney to represent Mr. Washington, and he represented to the court that there was going to be an attorney out there... a volunteer attorney out there... to file a subsequent habeas corpus action.

The trial court denied the motion at that time, and indicated that he was leaving the matter open, because he anticipated there was going to be future activity to request a stay, or some other matters.

This is not a matter of the trial court saying there is no availability of counsel.

This is simply a matter of the trial court denying a motion on the understanding that was given to him that volunteer counsel was going to appear.

Unidentified Justice: Mr. Harris, can I ask you, this problem of delay troubles everyone interested in this area.

You say that the average time in Virginia is eight months for a direct review to be completed, and then there is apparently another additional six years that takes place between the completion of direct review and the actual execution?

Mr. Harris: That is a rough average, and--

Unidentified Justice: What, in your judgment, causes that delay?

Do those two or three years go by before the first State collateral proceeding starts?

Mr. Harris: --No, usually the first State habeas corpus petition would be filed rather promptly after the denial of cert.--

I think that the longest time there has ever been between a certiorari denial and filing would be maybe six months at the longest.

Unidentified Justice: So then it is about seven or so years between the filing of the first State collateral proceeding and the conclusion of both that proceeding and whatever Federal proceedings there are?

Mr. Harris: I cannot explain any one item.

Unidentified Justice: Is one part of the proceeding more slow, more difficult to conclude than another, do you know?

Mr. Harris: I do not see any one area as being particularly difficult.

There are some--

Unidentified Justice: In some States, it is the direct review that is very slow.

In some States you could wait several years before the conviction is confirmed.

But in Virginia, it is just eight months.

That is very interesting.

Mr. Harris: --It is an expedited process in Virginia.

It is given priority on the Virginia Supreme Court's docket.

It is set for immediate briefing, and it is set at the earliest argument date.

And the Virginia Supreme Court has a practice of deciding cases heard in one term by the next time they sit.

That is the practice of the Court.

Unidentified Justice: They start the first proceeding promptly, and it still takes six years?

Mr. Harris: Well, I will give you an example... Mr. Giarratano's case in this.

He is the named plaintiff in this action.

He was convicted in 1979.

He filed his State habeas proceedings, I believe, in 1980.

They were completed by 1983, which includes both a hearing in the State circuit court on allegations of ineffective assistance of counsel and a review on the denial of habeas corpus relief to the Virginia Supreme Court.

I believe in March of 1983, he filed his habeas corpus action in the Federal district court.

That was dismissed last December, finally, and it is now pending in the Fourth Circuit.

Unidentified Justice: It pended in the district court for five years?

Mr. Harris: That habeas action pended, was interrupted on several occasions... the last occasion that it was interrupted was, Mr. Giarratano added another claim which made a mixed petition, and he was allowed to go back to State court to file a second State petition while the district court kept the Federal action open.

These cases take time.

They do not need to.

They certainly do not need to take this long.

We certainly, though, do not want to add another layer of litigation.

I do not agree with Mr. Zerkin's statement that there is not going to be any additional delay in these matters.

There may not be a habeas corpus petition challenging the conviction, because of ineffective assistance of habeas counsel, but there will certainly be a habeas petition challenging the habeas action.

It is a cost to the State from this new right to counsel that we have to relitigate every State habeas corpus action, because each time the petitioner insists another right to counsel to litigate the next State habeas corpus action.

We will be doing this on and on and on, and I do not think this Court should be sending the message out there that these prisoners have a right to litigate indefinitely, particularly in these matters.

And we are talking about litigation that has nothing to do with the trial, nothing to do with the determination of guilt.

Unidentified Justice: I suppose we have to look at the experience in other States... a lot of States do provide counsel in this proceeding... and see if they have in fact been slowed up by the process you described.

Mr. Harris: Well, again, we are talking about a system in Virgin where the delay is not caused by an absence of counsel.

They have all had counsel, and there is still delay.

That is not the cause of the delay.

But if we add counsel, we are guaranteeing more delay.

Unidentified Justice: I do not understand that.

You say that they have had counsel... but why will you get more delay if you just have different counsel?

That is really all you are talking about.

Mr. Harris: If we are creating a new Constitutional right to counsel, presumably there will be some right to seek redress in some court if you have a claim against that counsel, even under--

Unidentified Justice: Well, all I am saying is that is true in a lot of other States right now.

It is maybe not Constitutionally compelled, but these other States, like Florida, and some of the others, do provide counsel for collateral review.

And you are suggesting that those States are... statistics will show that those States are a lot slower than Virginia, because they have this extra right?

Mr. Harris: --No, I am talking about an extra right to an additional collateral review of collateral counsel.

Unidentified Justice: Well, they have that... why do they not have that in Florida?

Mr. Harris: Florida has made that decision.

They have created this right to counsel for their prisoners under State law.

They are not--

Unidentified Justice: But I am just saying, under your argument, it must be true that Florida has a lot more delay than Virginia does, because they have this extra right.

It is a State-created right.

Mr. Harris: --But they have not given them that State-created remedy of attacking collateral counsel.

Unidentified Justice: I do not know why it is not a State-created remedy there, any more than it would be here.

I do not understand your argument, I guess.

I gather that you are saying that Florida gives you a right to counsel, but if you do not get that right, you cannot complain about it?

Mr. Harris: Florida gives them a representative for their actions, but it has specifically said, we did not mean to create another layer of litigation by doing that.

Unidentified Justice: Yes.

Chief Justice William H. Rehnquist: Thank you, Mr. Harris.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Mallard v. United States District Court - Oral Argument

Sun, 06 Feb 2011 03:45:32 +0000

Case:

Mallard v. United States District Court

Media File:

87-1490_19890228-argument.mp3

Related Transcript:

87-1490_19890228-argument.xml

Transcript:

ORAL ARGUMENT OF GEORGE E. MALLARD ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument next in No. 87-1490, John Mallard versus the United States District Court.

Mr. Mallard.

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

The question presented in this case is whether a federal court is empowered by 28 U.S.C. Section 1915(d) to require an unwilling attorney to undertake a representation.

The Court of Appeals for the Eighth Circuit has effectively held that such a power exists.

This interpretation conflicts and splits with the decisions of the Fifth, Sixth, Seventh, and Ninth Circuits.

In Nelson v. Redfield, the Eighth Circuit directed the United States District Court for the Southern District of Iowa, the Respondent herein, to prepare a list of attorneys practicing in the district who would be available for pro bono appointments under Section 1915(d).

The Petitioner herein, John Mallard, was selected from this list for an appointment.

Since I am--

Unidentified Justice: That's you.

Is that right?

That's you.

Mr. Mallard: --Yes--

Unidentified Justice: Yes.

Mr. Mallard: --your Honor.

Since I am the Petitioner herein, for ease of communication, I will hereafter use the first person in my presentation of this case.

I was admitted to the California Bar in 1981 and the Iowa Bar in 1984.

Since June of 1984 I have been employed by the law firm of Marcus & Mallard in Fairfield, Iowa where I have practiced primarily in the area of corporate and securities law.

In the fall of 1986 our firm, which consisted of three lawyers at the time, decided to take on a fourth lawyer who had substantial experience in litigation and could develop a litigation practice within the firm.

Because this lawyer was not yet in a position to seek admission to the Southern District, I obtained admission so that our firm could appear as counsel in two cases in the Southern District.

I had no intention to undertake the responsibility of litigating those cases.

Because I appeared before the Southern District, my name was added to a list of attorneys available for pro bono service.

In June 1987 I was informed by the Volunteer Lawyer's Project that I had been appointed to represent the plaintiffs in the case of Traman v. Parkin.

This case involved complaints by three prison inmates against eight prison guards and administrators alleging physical mistreatment, that the role of the inmates as informants had been exposed to other inmates and that the plaintiffs in that case, their lives had been endangered.

The plaintiffs in that case were seeking both damages and injunctive relief.

In June 1987, several weeks after I had reviewed that file, I filed a motion to withdraw on the grounds that adequate representation of the plaintiffs in that case would require substantial discovery and extensive examination and cross examination of multiple parties and other witnesses.

In my estimation, I was not competent to provide the services that would be required for effective representation of those parties.

Unidentified Justice: I thought that--

--Mr. Mallard, your argument that the statute... or, rule doesn't vest the authority... I suppose however competent you were it still wouldn't vest the authority when it says appoint... to conscript you against your will.

Mr. Mallard: Yes, your Honor, that is correct.

Unidentified Justice: And, in any event, the District Court found you were competent?

Mr. Mallard: Yes.

Both... the motion that I made was originally submitted to the magistrate who found that I was competent.

And then--

Unidentified Justice: So, don't we take it as though you are in fact competent to do this work?

Mr. Mallard: --Yes, your Honor.

Unidentified Justice: Yes.

Mr. Mallard: As an objective matter, the District Court has so found.

I think that, you know, I had been applying perhaps a different standard, a higher standard based on the services that I would like to see provided and that I believe that I commonly provide to my other clients in a business setting.

I offered, in my motion, to provide alternative pro bono service, but that offer was not considered by the District Court as being sufficient.

In connection with my appeal of the ruling on competence, I also brought a motion to the District Court on the ground that 1915(d) did not empower the District Court to require an unwilling attorney to undertake a representation.

Unidentified Justice: Does the court have authority to appoint someone to represent this indigent litigant?

Mr. Mallard: Your honor, the way I read 1915(d) the answer is... is yes, that the court has authority to request an attorney to become involved in the case.

And I believe that--

Unidentified Justice: Well, what if everyone in the district says no?

They're all like you and they say,

"We just don't want to do it? "

Mr. Mallard: --Your honor, I believe that that is actually... probably the only point that I am aware of that is a possible grounds of merit on the Respondent's side.

I think there are at least three answers or responses to that question.

And if I might address them in turn.

I think the Respondent bears a heavy burden to show that it could not obtain counsel by making a request.

Just because the first lawyer who is requested to undertake a representation declines, I do not believe that that is evidence that other lawyers who felt more comfortable with the task would not step forward upon request.

I believe that attorneys have been very giving of their time and that as a practical matter when a litigator has developed a relationship with a certain judge and receives a call from that judge and a request, that it would be very unlikely that that person would decline the judge's request.

Unidentified Justice: Well, yeah, I think in my day it would have been unthinkable to tell the judge you wouldn't do it.

It must be a new era out there.

Mr. Mallard: Well, your Honor, I believe it's not quite that new, although I think my circumstances are more unusual in that I had a lot of discomfort with undertaking those responsibilities.

I don't think that requests are always declined.

I think... as an example in this case, the Respondent's counsel, the Attorney General for the State of Iowa, is appearing on behalf of the Southern District based upon a request made by that court.

Unidentified Justice: Well, you really haven't answered Justice O'Connor's question completely.

She asked if it was your position that the judge under this particular section lacks the authority to appoint an unwilling lawyer.

Mr. Mallard: Your Honor, I regret if there is any ambiguity in my response, but I think it's based upon the usage of the word appoint.

I think certainly that the court possesses authority to appoint an attorney who... who accepts a request.

And to bestow him with the power and title and authority to go forward and represent, you know, indigent--

Unidentified Justice: But how about the authority to appoint someone like you who declined the request?

And to in effect say you must do it even though you refuse?

Mr. Mallard: --Your Honor, I do not believe that that authority exists or was granted by Congress under 1915(d).

Unidentified Justice: And this is a civil action, right?

Mr. Mallard: Yes, your Honor.

Unidentified Justice: What if it were a criminal action?

Mr. Mallard: If it were a criminal action, I believe the court does possess the authority.

I think that Congress has generally distinguished between the nature of the legal rights and interests which are involved, and even the Constitution, in terms of--

Unidentified Justice: On the criminal side does it rest on the inherent power of the court?

Something to do with the Sixth Amendment or what?

Mr. Mallard: --Well, partially, your Honor.

I think yes.

I think there is really... if it's considered as a continuum, certainly on one side with the Sixth Amendment, a right to counsel, rights where the potential for heavy penalties, severe penalties, are so great that counsel must be provided.

And I know Congress has enacted several statutes aimed at that effect.

And certainly in the middle of the continuum other statutes where Congress has addressed rights that they believe to be of such importance.

For example, being represented in a contempt proceeding or in certain child custody proceedings that Congress has spoken and said counsel should be appointed or assigned.

And in those other statutes used those words, appoint or assign.

At the final end of the continuum where we find Section 1915(d), there is no... it's all other civil rights and cases.

There... there is no specification of rights.

And consequently because Congress could not know how serious the case might be and how essential the need for counsel would be, I would submit that it left it under 1915(d) to the discretion of the court to determine whether to request an attorney to be involved, and to the attorney's discretion also--

Unidentified Justice: Mr. Mallard,--

Mr. Mallard: --in accepting.

Unidentified Justice: --may I just be sure I understood something you said earlier.

You do... did I understand correctly?

You concede that if this were a criminal case, you could be compelled against your will to serve?

Mr. Mallard: Thank you, your Honor.

I concede, yes, except perhaps in certain limited circumstances--

Unidentified Justice: Well--

Mr. Mallard: --to the extent there would be a constitutional right involved possibly--

Unidentified Justice: --Well, the--

Mr. Mallard: --under the First Amendment.

Unidentified Justice: --defendant has a constitutional right.

But what's that got to do with your right to say no, if you think you have such a right?

I don't understand.

Your brief certainly didn't suggest you... in fact, I think if you concede that you must be giving up all your constitutional objections.

Mr. Mallard: Well, I raise my constitutional objections only for the purpose that to the extent this Court found the plain meaning of 1915(d) to be unclear or ambiguous and upon looking--

Unidentified Justice: You're merely arguing we should avoid the constitutional question by construing the statute in your favor?

That you're not really--

Mr. Mallard: --Yes.

Unidentified Justice: --and you really don't think you have a constitutional claim on its own bottom?

Mr. Mallard: I think that there would be serious constitutional claims if the statute were construed in the manner that the Respondent suggests, that the word "request" should mean require.

But, you're correct, your Honor, in that I did not submit the constitutional arguments as the reasons for overturning the statute.

I present them on the grounds that this Court should construe the statute narrowly in order to avoid serious constitutional objection.

In July 1987, after my motion had been refused and denied by the District Court, I appealed the decision and sought appellate review to the Eighth Circuit by applying for a writ of mandamus.

The Eighth Circuit denied my application without issuing an opinion.

The Eighth Circuit did, however, stay the proceedings in the Traman case, the underlying litigation, so that I could seek appellate review to this Court.

The holding of the Eighth Circuit should be reversed.

1915(d) provides, in relevant part, that the Court may request an attorney to represent a person who is unable to employ counsel.

The plain meaning of the words "may request" implies that an attorney may decline a requested representation.

The Respondent argues that the use of the word 1915(d) is ambiguous, and, consequently, that the legislative history must be examined for the purpose of determining the intent of Congress.

But the Respondent bears a heavy burden to show that this language has ambiguity.

There are many cases which use the words 1915(d).

But, other than the Eighth Circuit, all of the circuit courts which have considered the meaning of a request made to an unwilling attorney have concluded that the statutory--

Unidentified Justice: Counsel--

Mr. Mallard: --language may request--

Unidentified Justice: --Counsel, did... does the judge need a statute to request somebody to do something?

Mr. Mallard: --No, your Honor.

Unidentified Justice: Well, the statute means more than just request, doesn't it?

Mr. Mallard: In this instance I believe the answer is no.

Unidentified Justice: Well, then he didn't need the statute.

It was just a wasted statute.

Mr. Mallard: No, your Honor.

I believe if you examine the historical context the enactment of 1915(d) goes all the way back to 1892.

And at that time... and the main purpose of that statute was to open the courts so that the poor would have access.

And that was the principal purpose that Congress had in mind in passing the Act, and it's my belief that since courts were not commonly confronted with the question at the time of how did the poor have counsel, because the poor were not even allowed through--

Unidentified Justice: Well--

Mr. Mallard: --the door--

Unidentified Justice: --the judge doesn't need the statute to request anything, does he?

Mr. Mallard: --No, your Honor.

Unidentified Justice: Well, this is wasted material.

Mr. Mallard: It's--

Unidentified Justice: Don't you have to admit that?

Mr. Mallard: --Well--

Unidentified Justice: You could admit it.

He can request it.

But is requesting it the same as requesting it appropriately?

I can request anybody to do all sorts of things, but many of those requests would be inappropriate, wouldn't they?

But when a statute says it, doesn't it mean more than that?

Mr. Mallard: --Your Honor, I believe the answer is no.

I--

Unidentified Justice: It doesn't mean any more than that he can request, just like he can request the janitor to clean out spittoons.

Mr. Mallard: --In my opinion, that is correct.

Unidentified Justice: That it couldn't mean anything more, then could it?

Mr. Mallard: No, I don't believe Congress intended--

Unidentified Justice: I just don't see where you get your rights under that statute.

Mr. Mallard: --I would submit from the plain meaning.

But perhaps if we look to the legislative history and examined certain of the points which are instructive on the point of legislative intent, it will provide further meaning to this Court.

Because I believe that if this Court believes the words "may request" are ambiguous on their face, that the intent can be inferred for four reasons.

First, the legislative history reveals, as I mentioned, that the main purpose was to open access to the courts for poor persons.

This purpose must be distinguished from providing counsel.

The difference in the treatment of these two objectives by Congress is apparent from the distinction in the language which is employed in Sections 1915(c) and 1915(d).

Subsection (c) deals with officers of the court such as persons serving process, which was distinguished from attorneys, and provides that these persons shall issue and serve process.

While subsection (d) provides only that the court may request an attorney to represent a person unable to employ counsel.

Congress knew how to use language which suggests an element of compulsion.

It chose to do it in subsection (c) and it chose not to do it in subsection (d) relating to attorneys.

As a second point on Congressional intent, it is instructive to consider the manner in which the language was most likely chosen.

Legislative history shows that 1915(d) was inspired by certain state statutes in existence at that time.

In fact, there were 11 such state statutes and all of them describe the power of the court to obtain counsel by using the words "appoint" or "assign".

However, while Congress must have been aware of these state statutes and likely referred to them as a model for 1915(d), it chose the words "may request" in substitution for the words "appoint" or "assign".

Unidentified Justice: Mr. Mallard, you say the legislative history shows this.

Are you referring to a committee report or a conference report?

Mr. Mallard: Yes, your Honor.

I believe it is in the Joint Appendix and... it's in a committee report by the Committee of the Judiciary, and it's near the end of the Joint Appendix where the Committee states or the member of the Committee who was filing the report, that the statute is inspired by the humane, enlightened laws of several states.

An historical study shows that there were 11 statutes, in effect and, again, as I mentioned, they all used the word "appoint" or "assign".

The charge in that language in 1915(d) was presumably made with the intent to change the meaning of the federal provision and the degree of power conferred upon the federal courts.

The third argument supporting the proposition that Congress intended 1915(d) to give the courts authority to request rather than require an attorney to take a case is that Congress did not provide for any compensation under the statute.

In contrast to this, federal statutes that expressly empower a court to appoint or assign an attorney typically provide for compensation.

The fact that Congress did not do so under 1915(d) is further evidence that Congress expected attorneys to appear as volunteers only.

As a fourth and final point on Congressional intent, I would refer to the response made to Justice O'Connor earlier with respect to the different types of legal interests involved which the Constitution or Congress would have a desire to protect, and the other end of the spectrum where it's not possible to know of the importance of those rights in leaving it to the discretion of the courts.

Unidentified Justice: Mr. Mallard, can I ask you, since you've raised this matter of the compensation and the like, what is the practice in the Southern District of Iowa in a case of this kind if you had to take depositions?

Say you'd accepted the appointment and had to take depositions.

Would you have to advance the costs out of your own pocket or is there some provision for financing?

Mr. Mallard: Your Honor, it's my understanding that an attorney who is representing a person under that statute who wants to take depositions has to make a motion or request to the district court identifying the need, and that then if the court approves it, that it has some funds that are available to reimburse that particular cost.

Unidentified Justice: I see.

So the appointment does not contemplate your advancing your own funds for that sort of thing?

Mr. Mallard: No, your Honor.

Unidentified Justice: I see.

Does the District Court sit in Fairfield?

Mr. Mallard: No, your Honor.

It sits in Des Moines, which is approximately a two hour drive from Fairfield.

Unidentified Justice: So, in order to represent this party you would have had to go from Fairfield to Des Moines then?

Mr. Mallard: Yes, your Honor.

And, in addition, I would have to travel approximately an hour and a half further south, to Fort.

Madison, Iowa, to represent the plaintiffs because that's where--

Unidentified Justice: Is Fort.

Madison--

Mr. Mallard: --the Iowa State Penitentiary is.

Unidentified Justice: --on the river?

Mr. Mallard: Yes, your Honor.

In short, an analysis of legislative history and intent supports my reading of 1915(d).

The final consideration for this Court to hold in my favor involves the fundamental principle that a statute should be construed narrowly so as to avoid serious constitutional questions.

The Respondent argues that the word "request" should be read broadly to mean "require".

But such a broad reading could render 1915(d) unconstitutional under the First and Fifth Amendments in accordance with the arguments set forth in my brief.

Consequently, this Court should resolve any doubts it has regarding the meaning of 1915(d) by construing the statue narrowly in accordance with its commonly-understood meaning.

In connection with the argument that's made by the Respondent that the statute would be rendered null or that the District Court's power would be helplessly ineffective if this Court were to rule in my favor, again, I submit that the system of making requests does work and, secondly, that, as discussed earlier, the legislative history suggests that Congress was not ultimately concerned with providing counsel in these cases, but had as its main purpose the opening of the courts to the poor by waiving certain court fees.

Last, even if Congress intended to provide an assurance of representation under 1915(d) and found that the statute when construed in the manner I advocate was ineffective in doing so, Congress might correct this problem by enacting a new statute which either clearly used language of compulsion or, more likely, provided for compensation so that the availability of counsel was not entirely dependent upon volunteerism.

In conclusion, this Court should rule in my favor because the word 1915(d) is plain and clear.

Even if this Court were to find some ambiguity, the legislative history and intent of Congress supports a ruling in my favor also.

Unidentified Justice: Mr. Mallard, as a matter of curiosity, what has happened to these indigents?

Has someone else been appointed and carrying on for them?

Mr. Mallard: No, your honor.

It's my understanding, though, the District Court has taken certain steps and I believe asked the Attorney General for the State of Iowa to undertake an investigation and report regarding their safety.

But their case has been stayed.

Unidentified Justice: This is Chief Judge Vietor?

Mr. Mallard: Yes, your Honor.

Finally, request does not mean require.

The Eighth Circuit should be reversed.

And unless there are further questions, I would like to save the balance of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Mallard.

Mr. Allen, We'll hear now from you.

I take it you're not representing the District Court because of your official position as the Deputy Attorney General of Iowa.

Is that correct?

ORAL ARGUMENT OF GORDON E. ALLEN ON BEHALF OF RESPONDENTS

Mr. Allen: That's correct, your honor.

As the footnote in the original response to the petition for certiorari indicates, our office was charged with representing the defendants in the underlying action filed by Mr. Traman and others.

We did not participate at either the District Court level in responding to his original request to withdraw, nor did we respond to the mandamus action filed in the Eighth Circuit.

When the petition for certiorari was filed with this Court, Chief Judge Vietor contacted my office and asked me... actually, he requested me--

[Laughter]

--and I said,

"Certainly, Judge, I'd be very glad to do that. "

And it is for that reason that I appear on his behalf today.

Unidentified Justice: Do you think you had a choice?

Mr. Allen: Did I think I had a choice?

Unidentified Justice: Uh-huh.

Mr. Allen: Well, I think in discussing the word "request"... and it's dealt with extensively in the briefs... I think you have to look at it contextually.

One can get a request from a stranger on the street which, as an Iowan, I come to Washington, D.C. and I see a lot of those.

And I get a certain feeling about what that request means.

If I get a request from a friend, I get a somewhat different feeling about that.

If I get a request from my spouse, I have somewhat different request... it's a somewhat higher... in most cases it's still negotiable but it's nevertheless there.

If I receive a request from a general in the Army or in from a judge, that request in its context to me means I am to do it unless I have extraordinary reasons for not.

And in answer to your question, I think the plan which is imposed by the District Court provides that accommodation to Mr. Mallard, both on the front end during the application and appointment process where it gives leeway for geographical needs, it gives leeway for time schedules, it gives leeway for prior pro bono work.

In effect it makes a decision as to whether Mr. Mallard in this particular case can conduct the litigation.

Unidentified Justice: I may well do something if a general asked me to do it and I happened to be a lieutenant and it's just put to me as a request.

But it's another question whether I can be court-martialled if I don't do it.

I may never get a promotion.

Mr. Allen: And I agree.

Unidentified Justice: And I may get pretty bad assignments if I don't comply with the request.

Mr. Allen: And I agree.

Unidentified Justice: But to use request as synonymous with command is just... I mean, words have no meaning if one starts talking like that.

Mr. Allen: Well, I think if you'll... I have two answers to that.

If you'll look at the definition of the usage of the word 1892 when it was used by Congress, I think most of the dictionaries that we have cited indicate that the word "request" came from the same root word as "require" and in some instances meant demand.

Congress' use of that word--

Unidentified Justice: Can you give me an example where it was used that way?

Not a dictionary definition of the noun, but of a verb... the verb "request" used in any... any literary example you like where it's used to mean command or require.

Mr. Allen: --We did not cite the literary examples.

We cited the dictionary usage.

And--

Unidentified Justice: Of the noun.

Mr. Allen: --they were verbs.

Unidentified Justice: Of the noun.

Mr. Allen: Of the verb also, sir.

Unidentified Justice: Well, what was that?

Mr. Allen: Well, not cited in the brief... there is Anderson cited.

But not cited, your Honor, is Abbott's Law Dictionary of 1879 which specifically says... quote... in law a request is substantially equivalent to a demand... close quote.

Unidentified Justice: What does that mean?

In law a request is--

Mr. Allen: In law?

Unidentified Justice: --That could be with a promissory note or something.

Mr. Allen: Correct.

Correct.

I think... the word, I think... and this all goes to Mr. Mallard's specific request, specific statement here that this statute is not ambiguous.

I think it is ambiguous.

The use of the word 1892, the use of the word "request" in the context of current usage I think is ambiguous.

I think the split in the circuits and the very split within the circuits of the decisions that they have handled indicates to those courts and to this court that the usage of the word Mr. Mallard would suggest that it is.

Unidentified Justice: Well, it would have been awfully easy for Congress to use the terms Mr. Mallard says were in existence in the other state statutes on which Congress based Section 1915.

The fact it didn't suggests very arguably a conscious desire on the part of Congress to do something different than those state statute did.

Mr. Allen: That's Mr. Mallard's argument.

And if you look at it very carefully, it is exactly the opposite.

For instance, if we look at the legislative history and it's silent upon what they meant by the word "request" or why they chose request, we come up with three options.

Either Congress believed that they had the power to order and therefore the word "request" did not need any comment, it just meant we're going to order it.

Or that attorneys historically and traditionally had responded to the judge's request and therefore we need not explain it.

Or the third option is that we did not have the power, Congress did not have the power.

So, the usage of the word "request" has no meaning, we need not comment on it in legislative history.

Unidentified Justice: Or the fourth is they had the power but didn't want to exercise the power.

Mr. Allen: But that is inconsistent with the legislative history.

For four hundred years the Henry VII statute had provided that paupers in England could by the signing of an affidavit of poverty and an affidavit of merit by two attorneys then the pauper could go to the court and request an attorney.

Eleven states had followed that history and had used the word "appoint".

Congress, in my view, looked at the word 400 years of history where in the pauper had to go to the court and make the request, and said, no, we're going to order in the first three sections of 1915(d)... we're going to order the court officers to serve without pay.

In the fourth section, subsection (d), we're going to turn that request around.

We are, first of all, going to eliminate the affidavit necessary to be filed by two counsel of the bar that this case has merit.

We're going to eliminate that.

We're going to eliminate the request from the pauper to the court and we're going to turn it around and we're going to give the court the power to request of the pauper a request of the attorney for service to that case.

In other words, the use of the word "request" was directed to the court.

And, in fact, a subsection of the statute specifically goes to the court may request.

In answer to the question by Justice Marshall, the statutory construction requires that we give some meaning to--

Unidentified Justice: Let me follow that argument.

Mr. Allen: --Fine.

Unidentified Justice: You mean request used to be used for something that was made from the other direction.

Mr. Allen: Correct.

Unidentified Justice: And your explanation of why request is used in this statute is we're doing it the other way and therefore we're going to use the same word.

Is that it?

The request used to go from the pauper to the court.

Mr. Allen: Correct.

Unidentified Justice: And Congress used request here... why?

Because they thought--

Mr. Allen: Because we're changing the request flowing from the pauper to the court and we're flowing from the court to the attorney.

Unidentified Justice: --Oh-huh.

Mr. Allen: We're placing the onus of responsibility on the--

Unidentified Justice: Was it an order from the pauper to the court?

When the pauper made the request to the court, did the court have to snap to and do it or--

Mr. Allen: --No.

Unidentified Justice: --could the court... the court could do it or not do it?

Mr. Allen: Of course.

Unidentified Justice: So it was a request?

Mr. Allen: Of course.

Neitzke v. Williams - Oral Argument

Sun, 06 Feb 2011 03:45:53 +0000

Case:

Neitzke v. Williams

Media File:

87-1882_19890222-argument.mp3

Related Transcript:

87-1882_19890222-argument.xml

Transcript:

ORAL ARGUMENT OF ROBERT S. SPEAR ON BEHALF OF PETITIONERS

Chief Justice William H. Rehnquist: We'll near argument next in No. 87-1882, Dean Neitzke or Neitzke v. Harry Lawrence Williams.

You may proceed whenever you're ready, Mr. Spear.

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

This case was initiated by Mr. Williams, a prisoner at the Indiana State Reformatory, a maximum security institution, tendering the complaint for filing to the United States District Court for the Southern District of Indiana.

This complaint was tendered pro se and pursuant to 28 U.S. Code, Section 1915 as a pauper's petition.

It was a 42 U.S. Code, Section 1983 action.

There were five defendants.

The complaint alleged violations of the Eighth Amendment and also due process violations.

The district court dismissed the entire case as frivolous, pursuant to Section 1915(d).

Thereafter, the district court allowed on amendment and again dismissed the case.

The Seventh Circuit affirmed this dismissal as to three of the defendants under both theories, and also as to the remaining two defendants under the due process theory, but revived the action as to the Eighth Amendment against Mr. Neitzke, the hospital administrator, and Dr. Chol, the medical director.

In establishing this case, the Seventh Circuit set forth the following standard:

"A frivolous complaint is one in which the petitioner can make no rational argument in law or facts to support his or her claim for relief. "

And in making this holding, the court relied on the D.C. Circuit case of Brandon v. District of Columbia Board of Parole.

The Seventh Circuit, therefore, clearly held that 28 U.S. Code, Section 1915 (d) is not synonymous with the test under 12(b)(6).

The court specifically agreed with the district court that the Eighth Amendment allegations in this case failed to demonstrate the level of indifference necessary to survive the 12(b) motion under Estelle v. Gamble but nevertheless held that the case should be filed.

It is the Petitioners' contention in this case that a complaint which fails to state a claim upon which relief can be granted is frivolous within the meaning of 28 U.S. Code, Section 1915(d).

Section 1915 allows access to the federal courts for the poor, as set forth in decision of this Court in Adkins v. DuPont.

There is an already established standard for 12(b)(6) for pro se complaints which is, when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

This Court set forth this standard in Conley, reaffirmed it in Halnes, and indeed in Estelle v. Gamble.

It's Petitioners' contention that this standard is low enough.

The issues in this case deal with how the district courts should handle the congressional mandate of Section 1915(d) not to permit frivolous or malicious complaints under pauper's petitions.

We are not addressing here the variety of methodology by which various circuit courts have tried to handle this problem.

We are talking about the lowest permissible standard as opposed to another standard that may be established in a different circuit.

It is Petitioners' contention that a complaint which does not meet the pro se test for a 12(b)(6) motion is a minimum beneath which no complaint should be allowed to be filed.

Unidentified Justice: When you say it doesn't meet the pro se test, Mr. Spear, you're talking about the rule that pro se complaints are liberally construed in favor of the plaintiff?

Mr. Spear: Yes, Your Honor.

The Petitioners in this case would submit that instead a test should be establishing using 12(b)(6) as the standard beneath which the legal sufficiency of the complaint should not be allowed to go for purposes of Section 1915(b).

Unidentified Justice: Mr. Spear, at least on, on the face of the language there appear to be differences between the two provisions, and it isn't really clear to me that they would necessarily be the same.

Do you think that Rule 11, which is designed, according to the notes, to help eliminate frivolous claims, is implicated every time a complaint is dismissed under Rule 12(b)(6)?

Mr. Spear: No, Your Honor, it is not.

But it is a showing under Rule 11 that you must show, in order to avoid this sanction as a plaintiff, that you have a basis in fact and in law.

If you do not have a basis in law, Rule 11 sanctions would apply in a situation where the standard was not closed, but not... would only apply... would not apply in those rare cases where it is not clear-cut whether or not the complaint fails to state a claim.

In short, although many cases, perhaps most that reach this Court, there is a serious question of the sufficiency of the legality.

At the district court level, the vast majority of complaints are fairly readily apparent whether they meet the 12(b)(6) standard.

Unidentified Justice: Well, do you think that the frivolous and malicious standard under the statute applies to factual as well as legal aspects of the complaint?

Mr. Spear: Yes, Your Honor.

Unidentified Justice: You do?

Mr. Spear: We'd submit, however--

Unidentified Justice: Does the district court have the power on its own sua sponte to inquire behind the fact of the complaint under 1915?

Mr. Spear: --Apparently it does, Your Honor.

We note in our brief that several circuits, specifically in at least one instance in the Second, and the Eleventh and the Fifth and the Fourth, rather frequently do this.

Now, we are not suggesting--

Unidentified Justice: Could they refer it to a magistrate to find out some facts on whether to dismiss under 1915?

Mr. Spear: --Yes, Your Honor, we believe they have that power... in fact, do so right now.

That is not, however, the case that is in front of the Court today and we'd also point out, Your Honor, that probably when it talks about frivolous--

Unidentified Justice: Well, do you think under Rule 12(b) that one does that, or does one look just to the face of the complaint?

Mr. Spear: --The face of the complaint, Your Honor.

And we are only dealing with with the legal sufficiency here under a frivolous test.

Normally one would suspect that since the language of the statute isn't disjunctive of frivolous or malicious... malicious may very well tend to be factual.

For instance, if a party were to bring a hundred lawsuits within a period of a few weeks or multiple lawsuits against the same person for the same facts, that would tend to fall under the malicious side of the test.

That's not what we have here.

This is on the frivolous side of the test, and in front of us we have a pure legal test.

We would submit further that the Rule 11 standard, which has been proposed by the Respondent in this case, is particularly inappropriate for use in this context.

Rule 11 is used by the district courts as a sanction and a deterrent to paying plaintiffs and to their lawyers for filing complaints which are either not based correctly in the law or not based correctly factually.

They have to meet both tests.

It is not appropriate to use such a standard for plaintiffs who on their face cannot be deterred or, or punished in any fashion for bringing a frivolous complaint when they have, on their face, tendered a proper pauper's petition and literally have no assets upon which to levy.

The test that we are attempting to have this Court establish, although it has not reached this Court yet, has already been established in our opinion in eight of the circuits, and only the Seventh Circuit and the D.C. Circuit have found that a complaint can go lower than a 12(b)(6) motion standard and still survive in some viable fashion.

The test, in fact, is broader in both the Eleventh Circuit and, at least in one case, in the Second.

We are not contending that here today because it has not simply reached this basis in this case.

The standard method in the Southern District of Indiana and the Northern District is that a complaint is referred to a magistrate.

The magistrate makes findings that, in fact, it states a claim.

He has the power to order a file and then process is served.

Unidentified Justice: Well, Mr. Spear, you say that in the Southern District of Indiana the complaint is referred to a magistrate and the magistrate makes findings as to whether it states a claim?

Mr. Spear: Your Honor, the magistrate examines the complaint and if it, in his opinion, states a claim, he has the power to order a file and process it, sir.

If in fact in his opinion it does not state a claim, or is frivolous under the 1915(d) standard, he makes a recommendation and sends it to a district judge.

And the district judge makes the determination of whether or not the complaint is filed or not filed.

Unidentified Justice: So, the magistrate in either of those situations doesn't make what are... what would normally be called factual findings?

Mr. Spear: No, Your Honor.

They're not factual findings.

These are legal findings.

And, in fact, in the Seventh Circuit the only test... there is no factual test prior to filing... the only test is the legal test.

Unidentified Justice: I thought you responded to me that it was perfectly proper under 1915 to make a factual inquiry?

Mr. Spear: Yes, it is, Your Honor.

But that is not the test the Seventh Circuit uses.

The test that is used in other circuits makes those factual inquiries.

In... in an adversarial proceeding in front of a magistrate sometimes... with lawyers on both sides.

We're not suggesting that procedure here today.

We... We have not reached that question.

We have a single issue on the legal sufficiency at the single complaint under the current standards used by the Seventh Circuit.

And we would submit that they have dropped below the permissible standard for 1915(d) in... contrary to what eight other circuits have held.

So, there are multiple ways to deal with 1915(d).

We're not suggesting there are not.

Unidentified Justice: Mr.--

Mr. Spear: We're suggesting this is below--

Unidentified Justice: --Mr. Spear, can I just a... get a little bit more about the procedure you actually follow in the, in the Southern District of Indiana.

You say the pro se complaint is filed.

It's automatically referred by the clerk to a magistrate.

Or does it go through the judge's office first?

Mr. Spear: --It is tendered in the clerk's office, and from the clerk's office it goes to the magistrate.

Unidentified Justice: All right.

And then the magistrate screens it and he decided whether it states a cause of action or not.

And does he... does he--

Mr. Spear: And also pauper's petition about whether those--

Unidentified Justice: --Whether the financial requirements.

Mr. Spear: --Yes, sir.

Yes, sir.

Unidentified Justice: And that no service is made on the defendant while this is being done?

Mr. Spear: That's correct, Your Honor.

Unidentified Justice: And what is... is there a rule that prescribes how promptly he must do this?

Mr. Spear: No, Your Honor, although it is my understanding that it is done very promptly because from the time of tendering by, by a prisoner case, for instance--

Unidentified Justice: Is it stamped--

Mr. Spear: --'til it's filed is within days.

Unidentified Justice: --Is it stamped when it's delivered to the clerk's office and then... is there a docket entry made and a case file opened on the case?

Mr. Spear: Your Honor, it is not... it is not filed at that time and I--

Unidentified Justice: It's not filed.

So I take it there's no time stamp on when it comes in or--

Mr. Spear: --No, Your Honor, there's not.

Unidentified Justice: --And then if the... then when the... when the magistrate gets through with it and he says,

"I don't think this is worth filing. "

what do they do?

Mail it back to him or do they keep a copy in the file?

Mr. Spear: Your Honor, he... he lacks the authority to be able to make that decision himself.

He--

Unidentified Justice: But he sends it to the judge.

Mr. Spear: --Sends it to the judge.

Unidentified Justice: The judge says, "I agree with you".

And I imagine routinely the judge would probably agree with the magistrate because there's no point in saying the magistrate... if the judge is going to do all the same work all over again.

Mr. Spear: Yes, sir.

Unidentified Justice: I mean, just knowing how judges work.

So, the judge gets with the magistrate's recommendation.

And what does the judge do?

Mr. Spear: The judge looks... looks at it, and assuming the judge agrees with the magistrate--

Unidentified Justice: Right.

Mr. Spear: --issues effectively legal findings... not factual findings, but legal findings... with effect of a two or three page written opinion if it is not going to be filed, and sends... that is filed with cause number with the complaint.

And--

Unidentified Justice: It's then given a cause number?

It's given a number after the judge says it should not be filed?

Mr. Spear: --Yes, Your Honor.

Unidentified Justice: And then--

Mr. Spear: It's given a number and sent back to the pro se petitioner, a copy of the judge's opinion.

Unidentified Justice: --And when does... when does the time for the pro se petitioner to appeal from that action start to run out?

Mr. Spear: Thirty days, as it would be in any other appeal.

Unidentified Justice: From the time it's mailed back to him or... 'cause I gather there's no... is there an order entered by the district judge then?

Mr. Spear: Yes, Your Honor.

There is an order entered showing that it is dismissed under 1915(d).

Unidentified Justice: I see.

Mr. Spear: So that at that point the case is actually docketed.

From there it goes to the Seventh Circuit.

Courtesy copies in the case of state defendants in 1983 actions are ordinarily sent to the Indiana Attorney General's Office, and the Seventh Circuit routinely in such a case, when it is docketed there, sends us notice... or, actually, the Attorney General's Office, notice that such a case is now pending on appeal.

So, strangely enough, it is briefed on appeal as if the parties had already filed the complaint; 1915(d) allows the dismissal of the complaint either before or after filing.

But if--

Unidentified Justice: But if it automatically goes to the state.

Attorney General's Office, what is saved by not sending it to your office in the first instance?

Mr. Spear: --Your Honor, the... that is a courtesy copy.

Only about two-thirds of these cases deal with, with the State of Indiana.

A 1983 action may very well deal with a small county official--

Unidentified Justice: Oh, I see.

Mr. Spear: --and it also may deal with a state employee who does not wish to be represented by the Attorney General.

That's totally optional.

Now, they normally do because it's free, frankly, Your Honor.

But they can have their own counsel.

And they are unaware... they are unaware that the complaint has ever been tendered.

The rule in this case that we are contending for is simply a de minimus rule, not a rule that would change what we believe the standard to be before the Seventh Circuit entered the, the instant opinion.

And we are again arguing that Spears v. McCotter, Harris v. Menendez, and Martin-Trigona v. Stewart rules of the circuits should be adopted by this Court.

And, again, we've listed many other cases in our brief, as the standard beneath which a pro se tendered complaint cannot proceed under Section 1915.

That's the only issue in front of the Court.

It's the issue that we believe the Seventh Circuit has violated.

In conclusion, Your Honors, it is the position of the Petitioners in this case to established a familiar and identifiable standard under Section 1915(d) to determine when a pauper's petition should be dismissed as frivolous, and we would submit that that standard should be equivalent to the 12(b)(6) standard.

Unidentified Justice: May I just ask one other question.

It's kind of a... maybe it's kind of a silly in a way.

But the procedure that you follow deprives the defendant of knowledge that he or she has been sued.

Mr. Spear: Yes, Your Honor.

Unidentified Justice: Or has been attempted to be sued.

Mr. Spear: Yes, Your Honor.

Unidentified Justice: Maybe that's good and maybe it's bad.

Mr. Spear: Yes, it does, Your Honor.

But it also gives them the advantage of Section 1915(d), that they are not... they're not harassed or, or subject to the--

Unidentified Justice: They don't have to hire a lawyer or come into court or anything.

Mr. Spear: --Yes, Your Honor.

That's exactly right.

And for most defendants it's probably a privilege to be deprived of the right to be sued.

Unidentified Justice: Yeah.

Mr. Spear: They probably don't want to have that right.

Unidentified Justice: Yeah.

Mr. Spear: Thank you, Your Honor.

Unidentified Justice: Thank you, Mr. Spear.

Mr. Rutherglen.

ORAL ARGUMENT OF GEORGE A. RUTHERGLEN ON BEHALF OF RESPONDENT

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

This case concerns the question of whether the standard for dismissal of frivolous actions under Section 1915(d) is the same as the standard for dismissal for failure to state a claim under Rule 12(b)(6).

Respondent submits that it is not, for two reasons.

First, Federal Rules of Civil Procedure, and other principles of our adversary system, sharply distinguish between frivolous actions to warrant the imposition of sanctions in a complaint that simply fails to state a claim.

In particular, a motion to dismiss for a failure to state a claim raises a pure question of law.

This question of law may not be frivolous.

Petitioners propose that the district courts should always routinely resolve these questions of law, even when they present major questions of constitutional law, without the benefit of an adversary presentation by either party.

Second, the literal terms of Section 1915(d), its legislative history, and the prior decisions of this Court, require the same standards of frivolousness to apply in actions by litigants as... in actions by indigents as in actions by ordinary litigants.

When Congress used the phrase 1915(d), it did not mean failure to state a claim.

Unidentified Justice: Mr.... Mr. Rutherglen, when was... 1915 was... it's a pretty old statute.

It's older than the Civil Rules by a good deal, isn't it?

Mr. Rutherglen: Yes, Your Honor.

It was enacted in 19... in 1892.

Unidentified Justice: So, you know, what... what Congress had in mind concerning frivolousness for purposes of dealing with the federal rules doesn't really... there's no reason to think it had anything to do with what Congress had in mind in the 19th century when it decided who would have the privilege of proceeding in litigation without paying ordinary court costs.

Mr. Rutherglen: Yes, Justice Scalia.

The legislative history does not speak to the content of the phrase frivolous.

The single most common use of the word frivolous in the opinions of this Court before 1892 concerns the procedure for dismissing an appeal for failure to present a substantial federal question.

And, indeed, the rules of this Court in their 1878 version, Supreme Court Rule 6, specifically allowed a motion to affirm on the ground that the question on which jurisdiction depends is so frivolous as not to need further argument.

If Congress was aware of any standard usage of the word frivolous, it was aware of its equivalence with failure to state a substantial federal question.

Moreover, that's exactly what this Court held much later in Coppedge against United States.

This Court held that a pauper's appeal could be dismissed only when a paying litigant's appeal could be dismissed, only when it failed to state a substantial federal question.

Respondent submits that failure to state a substantial federal question is virtually identical to the standard adopted by the court of appeals in this case.

Is there a rational basis in fact and in law for the complaint that the plaintiff has submitted?

Unidentified Justice: Just as a matter of English usage, Mr. Rutherglen, failure to state a substantial federal question does not sound a great different to me than failure to state a claim on which relief can be granted.

Mr. Rutherglen: Your Honor, there are numerous decisions of this Court, for instance, the famous decision in Bell against Hood which established precisely this distinction.

This Court held in Bell against Hood that the question whether there was a claim directly under Fourth Amendment presented a substantial federal question, even though the district court might on an adversary presentation dismiss because the complaint failed to state a claim after the district court held that there was no such cause of action.

Unidentified Justice: Do you think that kind of hair-splitting that we have in Bell against Hood is a good model to pattern a system that's going to process an awful lot of indigent complaints?

Mr. Rutherglen: I do, Your Honor, so long as the procedures and the burdens that are put upon the federal district courts and that are put upon the defendants in these cases are clearly set forth.

All we are seeking today is the basic minimal procedures which any paying litigant gets in federal court.

Just notice of the supposed defects in the complaint and an opportunity to respond to those defects before the complaint is dismissed.

Moreover, Your Honor, we only defend the judgment of the court of appeals in this case.

The court of appeals said that it was perfectly appropriate for a dismissal under Section 1915(d) to be done sua sponte if there was no rational basis in law or fact for the plaintiffs' claims.

And, indeed, in this very case the court of appeals affirmed the dismissal of almost all of the plaintiffs' claims.

Only two claims were sent back down to the district court.

Unidentified Justice: Do you think courts can sua sponte dismiss under Rule 12(b)(6)?

Mr. Rutherglen: Your Honor, courts can sua sponte dismiss under Rule 121(b)(6).

My understanding of standard federal practice, as reflected in the federal rules, is that ordinarily they don't.

Unidentified Justice: But some circuits do, do they not?

Mr. Rutherglen: Courts in some circuits do?

I believe it is the exceptional practice, Your Honor.

Bear in mind that Petitioners' claim is not to do this in exceptional cases.

Petitioners' claim is that as an ordinary practice in indigent litigation a complaint will be dismissed without giving any notice to anybody.

Now, of course, Respondent in this case cannot complain about the absence of notice to the Defendants.

But Respondent himself got no notice until judgment was entered against him.

We submit that this practice is both contrary to the ordinary procedures under the Federal Rules, deprives the plaintiff of notice and opportunity to be heard on the sufficiency of his complaint and works to the detriment of the efficient administration of justice in the federal system.

We believe that the federal courts will do a better job in handling these cases, and we admit they pose problems for the federal districts courts if it asks the defendants simply to submit a motion to dismiss for failure to state a claim under the Federal Rules.

Unidentified Justice: Well, then you have to grant the motion to proceed in favor of paupers, the case has to be docketed, and you go through that whole procedure.

Mr. Rutherglen: Yes, Your Honor.

Those are fairly minor administrative expenses.

But, bear in mind, under the court of appeals' decision, it is only when there is a close case, only when there is some rational basis in law and fact, that we even go through that minimal procedure?

Unidentified Justice: Well, I... yeah, but your submission is that any time that it isn't frivolous you go through that procedure.

Mr. Rutherglen: Well, Your Honor, I think that the statute virtually requires--

Unidentified Justice: No.

Mr. Rutherglen: --that conclusion.

Unidentified Justice: That's... your position is that unless it's frivolous you go through that procedure.

Mr. Rutherglen: Yes.

I think the statute requires the federal district courts to--

Unidentified Justice: Well, Mr.... Mr.... the statute says, "may authorize the filing".

It doesn't say "shall".

Mr. Rutherglen: --That's right, Your Honor.

The--

Unidentified Justice: That would appear to give discretion to the district court.

Mr. Rutherglen: --Yes, Your Honor.

It would appear to give discretion to the district courts.

However, I know of no decision in the lower federal courts that leaves this issue entirely to the unfettered discretion of the district judges.

Unidentified Justice: Well, you answered... you agreed with Justice O'Connor.

I thought that that some districts do.

Some... in some circuits they do have sua sponte dismissals for a failure to state a cause of action.

Mr. Rutherglen: In cases involving paying litigants.

I thought that was the gist of her question.

But if I misinterpreted it, I apologize.

Unidentified Justice: Well, what's the difference?

A paying litigant, he's in court and the judge just says,

"I don't think you stated a cause of action. "

and he dismisses it sua sponte.

Mr. Rutherglen: Yes.

Our position on those circuits, Your Honor, is that their standard is the incorrect standard and should not be adopted by this Court.

Instead, we advocate that the... our courts of appeals--

Unidentified Justice: The paying client ought to have notice that he's about to be dismissed.

Mr. Rutherglen: --Except in clear cases.

Except in clear cases, we think that--

Unidentified Justice: What are those?

Mr. Rutherglen: --Well, Your Honor--

Unidentified Justice: Frivolous ones?

Mr. Rutherglen: --Yes, those are frivolous ones.

We submit that the definition of a frivolous case, both for indigent litigants and for paying litigants, is that the complaint is clearly insufficient.

Unidentified Justice: What's the difference between a complaint that is clearly insufficient and one that fails to state a claim?

Why set up a brand new standard?

Mr. Rutherglen: Well, Your Honor, the standard under Rule 12(b)(6) serves a quite different purpose than the standard that is appropriate under Section 1915(d) or under the standards for imposing sanctions against paying litigants.

The purpose of a motion to dismiss for a failure to state a claim under Rule 12(b)(6) is to isolate a dispositive issue of law at the beginning of the lawsuit before there has been factual investigation and factual findings by the district court and terminate the proceedings if those factual investigations are no longer necessary.

If... even though all the allegations that the plaintiff puts in his complaint are true, the law denies the plaintiff relief.

Now, that's one purpose served by Rule 12(b)(6).

Unidentified Justice: And that applies even if the law is pretty hard to figure out?

Mr. Rutherglen: That's right, Your Honor.

Unidentified Justice: You can still figure it out without getting into any further factual inquiry?

Mr. Rutherglen: That's right, Your Honor.

And there are any number of cases... we cite them in our brief... in which this Court has decided major questions of federal law in cases that came up on a motion to dismiss for a failure to state a claim.

We believe that that standard, which perfectly well suits that purpose, cannot be transplanted to do double duty under Section 1915(d).

In particular, if there is some doubt, and only when there is some doubt about the sufficiency of the complaint, we believe that the minimal procedures required by the court of appeals, service of process upon the defendants and an adversary presentation on the sufficiency of the complaint, will, first, protect the rights of indigent litigants, and, secondly, lead to the efficient administration of justice.

This case, we believe, illustrates exactly how these hasty procedures in the district court translate into wasteful procedures overall in the federal judicial system.

There were no adversary procedures whatsoever in this case in the district court.

We believe that it is better to have the adversary procedures in the district court before the case gets to the court of appeals.

In this case, because the district court did not serve process upon the Defendant, there was no adversary presentation on the sufficiency of the complaint.

It was only in court of appeals that three federal judges had to take the time to figure out whether this complaint stated a claim.

Unidentified Justice: Mr. Rutherglen, do you have any guess as to what percentage... I'm trying to think of, of how many cases in the circuits that adopt the, the rule you're arguing against would be affected by the, by the rule that you would have us adopt.

How many of these pro se complaints that are dismissed without further proceedings would have to go through further proceedings.

Mr. Rutherglen: Your Honor, I don't have those statistics at my--

Unidentified Justice: Well, I understand.

Mr. Rutherglen: --my fingertips.

But my--

Unidentified Justice: Are you--

Mr. Rutherglen: --I suspect--

Unidentified Justice: --How many would be clear in, in your estimation?

Eighty percent or closer to 20 percent?

Mr. Rutherglen: --My experience with prison litigation leads me to believe that this case is typical.

Most or all of the claims are clearly insufficient in most complaints drafted by prisoners by themselves.

But I cannot give you any numerical indication.

I think the best evidence of the burden that the procedure in the court of appeals... the procedure adopted by the court of appeals would put on the district court is revealed in this case, a simple need to serve process upon the defendant and then a filing of a motion to dismiss for failure to state a claim.

Unidentified Justice: Well, then, there's an argument on the motion to dismiss?

Mr. Rutherglen: There would be no need for argument.

The rules, Federal Rule 12(d), provides that a hearing must be held on any motion filed under Rule 12.

But my understanding is that hearings are rarely held in the district courts and that these motions are often decided on the paper record.

Unidentified Justice: So then what you want is the, the... in addition to the plaintiff's complaint, the defendant would presumably file a motion to dismiss, and the district court, which apparently would have felt beforehand that the complaint failed to state a claim for relief, is now given additional ammunition to reach that conclusion, and really nothing from the plaintiff.

Mr. Rutherglen: Well, the plaintiff is then given an opportunity to file a brief in support of the sufficiency of the complaint.

Unidentified Justice: But the plaintiff is pro se, presumably.

I gather that brief may not be a whole lot of help to the court.

Mr. Rutherglen: It is true, Your Honor, that the brief may not be a whole lot of help to the court, but with pro se litigants the courts, the federal courts, just must take them as they find them.

There is no question in this case about appointing counsel to represent these indigent litigants.

Our position is that given the disabilities, the practical disabilities that pro se litigants typically labor under, the procedures should be enforced against them so that they at least have an opportunity to respond to the alleged defects in the complaint before the judge has already made up his or her mind and entered judgment against the plaintiff.

That's what happened in--

Unidentified Justice: Well, why isn't--

Mr. Rutherglen: --this case.

Unidentified Justice: --Haines against Kerner enough for you?

Mr. Rutherglen: Haines against Kerner is not enough, Your Honor, because it is a standard that is designed to implement motions to dismiss for failure to state a claim.

Haines against Turner asks the court in very traditional fashion simply to assume that all the allegations stated in the complaint are true.

Unidentified Justice: Well, also to liberally construe the complaint, doesn't it?

Mr. Rutherglen: But it's... Your Honor, it nevertheless just says... I believe the exact words are that a court can grant a motion to dismiss for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts at trial that would entitle him to relief.

Haines against Kerner, like any standard for dismissal for failure to state a claim, doesn't give the plaintiff the benefit of the doubt on the law.

That is precisely what the court of appeals said was appropriate in these cases in which there was some question about the sufficiency of the complaint.

Moreover, I believe that as a matter of judicial administration it would only confuse the lower federal courts if the standard, which is perfectly suitable for one purpose under 12(b)(6), is suddenly transplanted to be used to determine what constitutes frivolous actions under Section 1915(d).

This Court would never take that step with a paying litigant, risking the confusion that might arise from confusing Rule 12 with Rule 11.

Nor would this Court take this step with respect to assessing attorney's fees against civil rights plaintiffs.

This Court has clearly said in Christianburg Garment, case decided under Title 7 but now applied under the Civil Rights Attorney's Fees Statute, generally, that attorney's fees can be assessed against a civil rights plaintiff only if the plaintiff's action was frivolous, unreasonable, or without foundation.

Moreover, in a prior decision, this Court has squarely held in Hughes against Rowe that a prisoner's complaint could fail to state a claim, yet would not justify the imposition of sanctions under Section 1988.

Your Honor, the Petitioners rely quite heavily upon the statement in the court of appeals opinion that the complaint failed to demonstrate the level of deliberate indifference necessary to survive a motion to dismiss under Rule 12(b)(6).

We contend that this statement is simply a dictum, that what the court meant was that there was some doubt about the sufficiency of the complaint, as it went on to state explicitly in the very next sentence in its opinion.

Moreover, the overall order of the court of appeals is consistent with this interpretation of its statement.

The court of appeals sent the case back down to the district court for further adversary proceedings on this issue.

To the extent that Petitioners rely upon this statement, we contend, for reasons elaborated in Part IV in our brief, that the complaint specifically alleges, often with supporting evidence in exhibits attached to the complaint, that Respondent suffered a deliberate indifference to serious medical needs.

In any event, this dictum is just another example of the procedural complications that ensue from sua sponte dismissal of a complaint for failure to state a claim.

In its opinion, the court of appeals plainly meant to establish an orderly procedure for disposition of actions brought by indigent litigants, to have the district court first consider sua sponte whether a complaint has any rational basis in law or fact.

If it does, then to have process served upon the defendant and entertain a motion to dismiss.

If the court then granted the motion to dismiss, the case would come to the court of appeals, as it does in ordinary appellant practice, with the benefit of the district court's considered judgment after a presentation of the issues on the sufficiency of the complaint by both sides.

It is that procedure, not the effect of an unconsidered dictum of the court of appeals, that constitutes the only question of general significance before this Court today.

We believe that the court of appeals decided it correctly.

If the Court has no further questions, Respondent respectfully requests that the judgment of the court of appeals be affirmed.

Unidentified Justice: Thank you, Mr. Rutherglen.

Mr. Spear, do you have anything more?

Mr. Spear: Yes, Your Honor.

Very briefly.

The Petitioners in this case still contend that the pro se 12(b)(6) rules set out in Estelle v. Gamble and in Haines v. Kerner is in fact the appropriate standard and is a low enough standard to protect the rights of--

REBUTTAL ARGUMENT OF ROBERT S. SPEAR

Unidentified Justice: Mr. Spear, can I ask you this question on the... referring especial... specifically to Estelle against Gamble and the complaint against the medical people in that case--

Mr. Spear: --Yes, Your Honor.

Unidentified Justice: --which the district court had dismissed the complaint and under your view it should have found it frivolous because ultimately the dismissal was upheld, even though the court of appeals thought there was merit to the, to the claim.

So that, in your view, the standard of being frivolous means that no matter serious and close the argument may be, if the ultimate determination is that it doesn't state a claim, it's still frivolous?

Mr. Spear: Yes, Your Honor, although I would submit that in close cases, as we learned from Conley, Haines and Estelle, in pro se litigation in close cases they are decided in favor of the plaintiffs.

So, realistically that issue simply was--

Unidentified Justice: Well, it wasn't in Estelle.

It wasn't in the district court or in this Court.

Mr. Spear: --Your Honor, I would--

Unidentified Justice: And that was a close case.

I think everyone would agree to that.

Mr. Spear: --I think it was, Your Honor, but I would submit that that is an unusual situation.

Unidentified Justice: Well, if you think that's the case, then what... what harm is there to adopt... t adopt the rule that Mr. Rutherforn... Rutherglen suggests?

Mr. Spear: Because, Your Honor--

Unidentified Justice: If you think it's only in a rare case anyway that anything other than a clear complaint is going to be dismissed this way, you're really not losing anything.

Mr. Spear: --Your Honor, we would submit that there the Seventh Circuit has adopted a much lower standard and an unenforceable standard when it differed from the other circuits.

You had earlier asked the question about when the statute was originally adopted.

It was, in fact, originally adopted in 1892 and recodified in 1948 after the rules, of course, had been adopted.

But in 1892 Congress was locking at a system where the courts refused to cemure a system, and even learned lawyers had difficulty stating a cause of action.

Cases would go back, would be repled two or three times.

The different situation we have today with the modern rules and with the standard established under Haines and under Conley, that, that we would submit that in fact the current standard of 12(b)(6) is in fact, as interpreted by this Court for pro se plaintiffs, the equivalent of a frivolous standard as it would have existed in 1892.

There is a practical aspect to this case.

As the record shows, the court had already gone through this procedure, and had to go through this procedure under the Seventh Circuit no matter what the outcome was below.

That is to say, the district court had already examined the complaint and weeded out three of the defendants and half the claims against the remaining two defendants.

And it would have to do that under 1915(d) even if it had filed the complaint as the Seventh Circuit ordered it to do.

It's still going to go through the same test.

The magistrate is going to examine it.

The district court is going to examine it at that level.

What the test that's argued for by the respondent in this case, however, would do was cause the same process to happen twice because, assuming the complaint is then filed, the defendants are brought into court and they are penalized in effect... they are sued... they must defend themselves.

At that point, the pro se petitioner files his response and the district court goes through the same analysis to determine whether or not the case states a claim.

The identical analysis that it underwent before it allowed the case to be filed.

We would submit that that does not cause a judicial economy and it makes no rational sense to have that kind of a test when you have to do exactly the... the courts do exactly the same thing twice.

Plus, it burdens the defendants, plus it burdens the other potential plaintiffs in the whole system, which is now clogged, to say the least.

That kind of a standard does not assist the district court in following what Congress has told it it must do, and that is winnow out these cases, and, in fact, the Seventh Circuit has said they must do.

We would continue to submit, Your Honors, that a system that causes the same complaint to be examined for the same standard twice by the district court is not the system that should be adopted by this Court.

Rather, this Court should adopt the familiar and identifiable standard of 12(b)(6) as instructions for the district courts and the circuit courts, to allow them to implement the congressional policy of Section 1915(d) in a way that they can define and get a handle on.

The questions of this Court to learned counsel here show that in a specific case it was very difficult for him to define a rule that shows well, yes, it's below 12(b)(6), but how far below is it before it still must be dismissed because there's no... any question of any of the parties in this case or the courts that at some point 1915(d) does kick in and there is a dismissal.

The question is not whether there is any standard prior to filing.

The question is what is that standard.

And we would submit that the way to handle that in a method that's enforceable by the courts is to use 12(b)(6) because it is a standard that the lawyers, the courts, the judges are familiar with.

Thank you, Your Honors.

Chief Justice William H. Rehnquist: Thank you, Mr. Spear.

The case is submitted.

Unidentified Justice: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Penson v. Ohio - Oral Argument

Sun, 06 Feb 2011 03:46:17 +0000

Case:

Penson v. Ohio

Media File:

87-6116_19881012-argument.mp3

Related Transcript:

87-6116_19881012-argument.xml

Transcript:

ORAL ARGUMENT OF GREGORY L. AYERS ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument now in No. 87-6116, Steven Penson v. Ohio.

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

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

The issue in this case is whether Steven Penson was denied his right to counsel on his direct appeal in the Ohio Court of Appeals.

We would submit the facts of this case clearly demonstrate that Mr. Penson's lawyer deserted him with the permission of the Court in a case that presented arguable issues.

I'd first like to give the Court some of the factual background of the case, and then get into our legal contentions.

Mr. Penson was tried, along with two co-defendants, for a number of criminal charges.

After he was convicted, all three, because they were indigent, were appointed counsel.

The two co-defendants' appellate lawyers filed briefs on their behalf.

Mr. Penson's lawyer did not file a brief.

Instead, Mr. Penson's lawyer filed a one statement certificate with the Court stating that there were no errors requiring reversal, modification, or vacation of his sentence.

He further indicated that he would not file a meritless appeal, and he moved to withdraw as counsel.

A week later, the Ohio Court of Appeals granted his motion without reviewing the record or without requiring a brief from him.

The Court subsequently refused to appoint counsel for Mr. Penson upon his request, and then, several months later, proceeded to decide the appeal.

The Court, in its decision, expressly disagreed with counsel as to whether there were reversible errors in the case.

In fact, the Court found one reversible error, and reversed one of the counts on the indictment.

The Court further found that there were several arguable errors as presented in the briefs of the co-defendants.

But instead of appointing counsel, as we submit the Court was required to do, the Court determined that its own error in not appointing counsel was not prejudicial to Mr. Penson, because it had examined the record and the errors submitted by the co-defendants in their briefs.

Unidentified Justice: Of course, the mere fact that the Court found an error that counsel did not find doesn't show that he was effectively deprived of the assistance of counsel.

I mean, that could have happened if counsel had filed a brief--

Mr. Ayers: Well--

Unidentified Justice: --That raised nine issues all of which the Court rejected but found, the Court might have found on its own a tenth issue, and you wouldn't--

Mr. Ayers: --Well--

Unidentified Justice: --You wouldn't be able to argue in that case that he was denied effective assistance.

Mr. Ayers: --Well, I agree with you, Justice Scalia.

The Court did give the, the defendant, Mr. Penson, the benefit of one of the issues raised by one of the co-defendants, and that was the count that was reversed.

Where the Court denied Mr. Penson his appellate right to counsel in this situation was where the Court found arguable issues that this Court has held in... repeatedly, in a number of cases, that the Court in that situation must appoint counsel.

Unidentified Justice: What useful relief can we give Mr. Penson in this case, assuming that everything you say is, have said so far is correct?

Does he go back and have a lawyer argue his case again to the Ohio Court of Appeals?

Is there any real chance they would change their mind?

Mr. Ayers: Well, that is precisely the relief that we are asking.

Mr. Penson has never had a lawyer to argue the appeals in his case.

We have pointed out in the reply brief a number of issues that were not raised by co-defendants' counsel.

Mr. Penson has not had a lawyer to review the case from the perspective of his position in the case.

The co-defendants' lawyers were reviewing the case from the perspective of the co-defendants.

They were review... he was... they were reviewing issues relating to the co-defendants.

They were not advocating on behalf of Mr. Penson, and it's a different kind of a representation.

Unidentified Justice: Do you make any argument here as to the fact that this error was not harmless, or do you say no harmless error standard can be applied?

Mr. Ayers: We submit that where counsel was denied, this Court has never applied a harmless error standard.

Unidentified Justice: Well... Mr. Penson had counsel.

The counsel didn't perform as he should have.

Mr. Ayers: Well, counsel was effectively absent, your Honor.

I think the precedents of this Court indicate that when nominal counsel is not sufficient to satisfy the Constitution, the counsel must engage the adversary process.

He must provide some assistance.

Counsel was effectively absent in this case.

He did not assist in any way.

He did not file a brief, he didn't do anything.

Unidentified Justice: You don't know that.

Mr. Ayers: This is a... this is now--

Unidentified Justice: He certainly purported to do something, Counsel, didn't he?

I mean--

Mr. Ayers: --The only--

Unidentified Justice: --He represented to the Ohio Supreme Court that he had studied the case, and in his judgment, there were no issues that would justify reversal.

Now, his judgment turned out to be wrong.

But it could have turned out to be wrong if he had filed a brief as well.

You can't really say that counsel didn't work on the case.

Mr. Ayers: --Well--

Unidentified Justice: All you know is that counsel, having worked on it, decided, incorrectly, that there was nothing in the case worth arguing.

Right?

Mr. Ayers: --Counsel did state that he carefully reviewed the record, and that he found no reversible errors in the case.

He did not say the case was frivolous.

He did not file a brief, as this Court has--

Unidentified Justice: Wasn't the same type of letter in the Anders case?

Mr. Ayers: --It was exactly... it was exactly a no merit letter.

It was a one-sentence statement saying there was no merit to the appeal.

Unidentified Justice: Like the Anders letter case?

Mr. Ayers: Exactly.

He did not present anything to the Court to convince the Court that it was a frivolous appeal, and that is the bright line test that this Court has drawn between providing counsel or requiring counsel and not requiring counsel.

This Court said in Anders that counsel must be provided in a non-frivolous appeal where there are arguable issues.

In a frivolous appeal, counsel can withdraw.

But that is a very narrow exception, and that is only allowed where counsel demonstrates to the Court that it's a non, that it's a frivolous case.

But counsel in order to do that must present a brief to the Court and must raise issues that might arguably support the appeal.

And then the Court has to review the brief and to make that determination as to whether counsel is correct.

Neither of those obligations were met by counsel in this case.

In fact, that Court expressly disagreed with counsel and found arguable issues.

This Court's decisions in Anders and subsequently, this past term, in McCoy indicate that counsel must be appointed in that situation.

Unidentified Justice: Well, counsel was appointed here.

Mr. Ayers: Counsel was appointed.

Unidentified Justice: But he... he didn't serve the way he ought to have under the Anders rule.

But that's not a failure to appoint counsel, that's counsel's mistakes.

Mr. Ayers: Well, of course in the McCoy case, the Court said that count... once the Court determines that there are arguable issues, counsel must be appointed and must be required to file an Anders brief.

Otherwise, the right to counsel becomes illusory.

And you can have a defendant with arguable issues not getting his issues presented to the Court.

I think the bright line test of Anders is a narrow exception to the Douglas v. California right to counsel, and it has to be a narrow exception, and it has to be strictly applied or the right to counsel becomes very illusory.

And--

Unidentified Justice: Anders doesn't assure that the arguable issues will be presented to the Court either.

It doesn't... an Anders brief would not give 100 percent assurance that the good arguable issues would be presented to the Court.

You could have counsel who files an Anders brief that is simply a bad brief.

He misses the real issues and decides to address non-issues.

Mr. Ayers: --That's... it's... that's possible.

Unidentified Justice: That's possible.

Mr. Ayers: That's possible.

But the Court is still required to look at the brief, and once it reviews the record, it can make that determination as to whether counsel has made an adequate review.

If it finds arguable issues, and finds that counsel's conclusion that these errors are frivolous is incorrect, then counsel... the Court at that point is required to appoint counsel to protect the right to counsel and have those issues presented.

That is what Anders requires, and I think that the Court made that clear this past term in McCoy, that once an attorney claims that an appeal is frivolous, that two Constitutional concerns must be met.

One is that the attorney make a diligent review of the record, and the Court is satisfied that he's made a diligent review of the record for arguable claims; and secondly, that his conclusion is correct.

Neither of those concerns were met in this case.

In fact, the lower court found that there were arguable issues.

Under Anders and McCoy, the Court was required to appoint counsel.

It in effect resulted in Mr. Penson being denied counsel.

He did not have an advocate on appeal.

And I think Douglas makes that very clear, that that is not only a denial of due process, it's a denial of equal protection.

In a situation where you have arguable issues, a monied defendant can go out and hire a lawyer and obtain the benefit of advocacy in a brief, and have these issues presented to an appellate court.

Unidentified Justice: We wouldn't say that Anders was not satisfied if this same attorney... let's assume this same attorney, instead of filing a letter with the Court saying

"I don't see any arguable issues. "

suppose he said,

"Well, I'll write down nine issues that don't seem to me arguable at all. "

He writes down those nine issues that he thought in this case were not worth making... but he writes them out, and he says, "I'll make them anyway"... missing three good issues.

All right?

What would be the result?

Would Anders have been satisfied?

Mr. Ayers: I think not, your Honor, because once the Court gets his brief, then the Court is further required to review the record and make sure that his conclusion is correct.

Once they identify those issues, then the Court is required to appoint counsel at that point.

Unidentified Justice: Oh, I see.

What you're arguing in this case is, it's not just the total absence of filing a brief, but rather, whenever a Court finds an arguable issue that is not raised in an Anders brief, it has to appoint new counsel to argue that arguable issue.

Mr. Ayers: If the Court disagrees--

Unidentified Justice: I didn't realize--

Mr. Ayers: --with counsel--

Unidentified Justice: --I see.

Mr. Ayers: --if the Court disagrees... I think in most Anders situations, the Court ends up relying upon counsel and accepting counsel's representation.

Unidentified Justice: We've never held that, have we, that you have to... if the Court disagrees with a no merit presentation in Anders, the Court then has to appoint another counsel?

Mr. Ayers: Yes, I think the Court has expressly held that in Anders and McCoy.

The Court said in McCoy, to repeat myself, that if the Court determines that there are arguable issues then the Constitution requires that a lawyer be appointed to argue those issues.

Otherwise, the right to counsel can be denied in a situation where you've got non-frivolous issues, and Anders draws the line in terms of the right to counsel between frivolous and non-frivolous procedures.

Unidentified Justice: Well, did either of those cases involve a situation in which a Court had found... had found that the no merit statement was wrong, and that there were arguable issues?

Mr. Ayers: In either the Anders or McCoy situation?

Unidentified Justice: Yes.

Mr. Ayers: In the--

Unidentified Justice: I mean, I was asking about a holding, not about language in cases.

Mr. Ayers: --Yeah.

In the Anders situation, the no merit letter was filed, and the Court agreed that there was no merit to the appeal.

This Court reversed, finding that the no merit letter was not adequate to protect the defendant's right to due process and the--

Unidentified Justice: Yeah.

Mr. Ayers: --equality with--

Unidentified Justice: But what I was asking about was a situation where Anders is complied with and the Court disagrees with the presentation.

You say there is a case from this Court holding that there counsel... a new counsel must be appointed.

Mr. Ayers: --I... I think Anders expressly says that.

Unidentified Justice: Do... did it hold that?

Mr. Ayers: Yes, I believe it did hold it.

Unidentified Justice: Do you understand what a holding is?

Mr. Ayers: Yes.

Unidentified Justice: And you say it held that?

Mr. Ayers: The Court did find--

Unidentified Justice: Well, but find... holding means that a particular question is presented for decision, the case turns on that, and the Court adopts one view or another of--

Mr. Ayers: --Well, I--

Unidentified Justice: --that particular question.

Mr. Ayers: --I understand what the Chief Justice is driving at now.

That particular procedure was dicta in Anders.

The Court--

Unidentified Justice: It wasn't in McCoy?

Mr. Ayers: --The... the issue in McCoy wasn't precisely that.

Right, the issue in McCoy was whether or not counsel could be required to show why the issue was frivolous or explain to the Court why.

Unidentified Justice: But if Anders covers you, why do you want to extend it?

Mr. Ayers: Anders... our position is that Anders does cover our situation.

Unidentified Justice: Well, why do you want to extend it?

Mr. Ayers: I'm not asking--

Unidentified Justice: Why don't you just rely on that?

Mr. Ayers: --I'm not asking the Court to extend it.

Unidentified Justice: I think you are trying to extend it, and for no good reason.

Mr. Ayers: Our position is that the Ohio Court of Appeals did not comply with the Anders exception.

It found expressly that there were arguable issues, and under the Anders decision, the Court was required to appoint counsel.

Unidentified Justice: Was that, this, a harmless error?

Mr. Ayers: That's expressly our position, and I don't want the Court to misunderstand that.

Unidentified Justice: Does the harmless error test apply there, or do you say that there can be no harmless error analysis?

Mr. Ayers: Well, this Court did not apply a harmless error test in Anders or in Douglas where the Court had reviewed the record and made that conclusion.

We would submit that where there is denial of counsel, this Court has never held that in a harmless error test is applicable.

This Court is automatically reversed because the right to counsel is so fundamental to not only the trial process but the appellate process also.

If counsel was not present and participating in the appellate process as an advocate, then the process really hasn't occurred.

Unidentified Justice: Well, but you know, at the trial stage, when you don't have counsel, you... it's really possible to say, it's hard to say that error is harmless because you don't know what the record would have read like, had you had counsel.

You don't know what facts would have been in there.

It's very hard to say that the error could be harmless.

At the appellate level, though, the facts are there.

The record is already there, and you could say that on the basis of this record... I don't care what appellate counsel you get... on the basis of this record which was made with counsel, there's no way that a jury could have found anything except that this person was guilty.

Mr. Ayers: Well, I think that--

Unidentified Justice: Isn't that a basic difference between the two levels?

Mr. Ayers: --I think the problem with that, your Honor, is that it overly burdens the appellate Court to engage in speculation as to what appellate counsel has done.

You've got two different rights here... the right to effective assistance at trial and a right on appeal.

You don't know what counsel would have done on appeal.

You can review the record to determine if counsel's performance at trial was adequate, but you have to speculate as to what counsel would have done with that record.

Appellate Courts are not in good positions to be advocates for defendants.

Independent review of the record does not satisfy the advocacy of a lawyer in an appellate Court, because the appellate Court has to speculate as to what would have been raised, the arguments that would have been made, and how the issue would have been decided.

It really makes... it really shifts the burden from the lawyer to the Court to decide the case--

Unidentified Justice: Wasn't that the--

Mr. Ayers: --and the advocacy process really hasn't worked.

Unidentified Justice: --Wasn't that settled in the Douglas case?

Mr. Ayers: Yes, precisely.

Unidentified Justice: I don't see what--

Mr. Ayers: We rely upon Douglas as well as Anders.

Unidentified Justice: --The Court could have gone on its own.

Mr. Ayers: Excuse me?

Unidentified Justice: The Court could have gone on without the lawyer in Douglas, but this Court said that you couldn't do that.

You had to give him a lawyer.

Mr. Ayers: Exactly, that a defendant on appeal benefits substantially from a lawyer's presentation in a brief of his examination of the record, research of the law, and marshalling of the arguments on his behalf, and that to deny that benefit to an indigent violates the Equal Protection clause, and that's the fundamental denial in this case.

This defendant, because he was indigent, was not able to go out and hire a lawyer to present these arguable issues, which the Court of Appeals found, to the Court.

He was stuck with the appellate lawyer, who effectively abandoned him before the Court.

He had no advocacy.

He had no brief.

In effect, he had no assistance.

This Court has said on a number of occasions that when counsel fails to perform, when he fails to engage the adversary process, that counsel is effectively absent.

That was the holding of this Court in Evitts v. Lucey.

And that's exactly what we have here: we have no counsel.

Unidentified Justice: In Evitts v. Lucey, no appeal was ever taken, was there?

Mr. Ayers: The appeal was filed, and the appeal was dismissed because counsel didn't comply with filing a statement on appeal.

Unidentified Justice: So nothing was done.

Here, I think, as Justice Scalia points out, the lawyer did something.

You say it was wrong, and grossly inadequate, but I don't think that's the same thing as just saying that he never... he wasn't even there.

Mr. Ayers: Well, the Court recognized, Mr. Chief Justice, in Evitts v. Lucey that the defendant must have more than nominal counsel.

Counsel must be effective.

He must engage in a performance which activates the adversary process.

Unidentified Justice: But now you--

Mr. Ayers: The attorney here did nothing, other than getting the appellate record to the appellate Court.

That's all he did in this case.

Unidentified Justice: --But you're suggesting that counsel must be effective, as I take it, the word you just used... in order for there to have been assistance of counsel furnished.

Mr. Ayers: No, absolutely--

Unidentified Justice: Now, we have, our Strickland case says exactly the opposite of that.

Mr. Ayers: --Absolutely... absolutely not.

Counsel is required.

Then he is to be appointed, then he is required to engage in a performance.

If he's not appointed, that's a Constitutional violation.

If he fails to engage in a Constitutional performance, that's a Constitutional violation.

Unidentified Justice: But is... but then how do you, how do you interpret Strickland?

Strickland says if it's claimed as ineffective assistance of counsel, you don't just automatically do the whole thing over.

You look at was there any prejudice.

Mr. Ayers: Well, Strickland, first of all, applies the prejudice test where you have a performance.

Strickland also says that where counsel is denied or is absent or fails to participate in the adversary process, then prejudice must be presumed, because counsel's presence and participation in the adversary process is essential to a reliable result.

Here we had no participation by counsel in the adversary process.

Strickland says that when counsel is absent or doesn't engage that process, then prejudice has to be presumed.

So I think in... we meet, clearly, a Strickland test, if the Court would choose to apply a Strickland test.

But I think as Justice Marshall has pointed out, that this is clearly an Anders and Douglas violation.

The Court does not have to apply an effective assistance test to this case.

We would submit that the prejudice test applied by the Court of Appeals in this case does not protect the right to counsel.

This Court held in Pennsylvania v. Finley that the Anders procedures were designed specifically to protect the right to counsel, and that necessarily... it necessarily follows if those procedures are not followed... if counsel may be allowed to withdraw from non-frivolous cases, then the right to counsel becomes illusory, and indigent defendants are not afforded equality with non-indigents on appeal.

That's the fundamental due process violation in this case.

It further invites attorneys to abandon appeals.

If Courts, or if defense lawyers know that they can be relieved without being required to file an Anders brief and demonstrate to the Court that an appeal is frivolous, then I think it would invite wholesale abandonment of clients and shifting of the burden to the appellate Court to engage in that decision making process without the briefing and the oral argument... the cornerstones of effective appellant decision making.

There must be an adversary process here, and counsel did not engage that process.

That's why it cannot be relied upon as producing a just result in this case.

We submit that presuming prejudice, if the Court looks at a Strickland test, if it applies to Douglas and Anders decisions, consistently with this case, demonstrates that the violation is easy to identify.

And it accords fundamental respect for the right to counsel.

This Court said in Ross v. Moffitt that an indigent must be afforded an adequate opportunity to present his claims to an appellate Court.

Mr. Penson was not afforded that opportunity.

He did not have his claims presented by a lawyer to the Ohio Court of Appeals.

Mr. Penson has simply not had his day in court.

We submit that that is a fundamental due process violation.

We've also pointed out issues, in our reply brief, that Mr. Penson would have raised that was raised by neither of the co-defendants.

That points out specific prejudice to Mr. Penson.

He has not had an opportunity to have those issues briefed and argued in the Ohio Court of Appeals.

That shows specific prejudice, if the Court is looking for prejudice.

If the Court does not have any further questions, I'll reserve the rest of my time for rebuttal.

Unidentified Justice: Thank you, Mr. Ayers.

Mr. Robinette, we'll hear from you.

ORAL ARGUMENT OF MARK B. ROBINETTE ON BEHALF OF THE RESPONDENT

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

I think initially I'd like to point out that there's a critical factual distinguishing feature between this case and the Anders case, and that's that in this case, the Court of Appeals found that although the record did contain arguable issues, it also found that those arguable issues had already been raised and decided in the appeals of the co-defendants.

And I would cite to page 41 in the joint appendix the language of the Court of Appeals, where it said

"our full consideration of each may be examined in the decisions rendered in the companion defendants' appeals. "

So I think that's a critical distinguishing factor from the Anders case.

Another point in Anders was that part of the reason for the reversal was that the appellate Court at the State level made no finding of frivolity.

It did not find whether or not there were frivolous issues in the case.

I think basically what we're faced with here is a case of ineffective assistance of counsel and not a case of denial of counsel.

I think the case is also distinguishable from the Douglas case because in Douglas the defendant had to make a preliminary showing of merit in order to have counsel appointed in the first place, whereas in this case, counsel was appointed at the outset.

As soon as the notice of appeal was filed, counsel was appointed on appeal.

There was no outside interference, there was no State interference with Counsel's ability to handle the appeal.

He had plenty of time.

He received at least two or three extensions of time to file his brief in the case.

There was no argument that there's... that counsel was laboring under any sort of conflict of interest that would have caused him any problem in his prosecution of the appeal.

I think what the issue boils down to is whether or not an indigent defendant in a criminal appeal has an absolute right to have a brief filed on his behalf, regardless of the merits of the case.

And it's the position of the State of Ohio that he has no such right.

Unidentified Justice: Well, does he have the right--

--What does that leave of the Anders rule?

Is it... if we rule for you, doesn't that simply undercut the Anders rule in any case where counsel doesn't want to file a brief?

We'll be right back to where we were before Anders.

Mr. Robinette: Well, I would point out that there's been a lot of criticism of the Anders briefing requirement--

Unidentified Justice: Well, then we should overrule Anders.

But it seems to me that what you're saying, in effect, almost does that.

Mr. Robinette: --I don't think it exactly overrules Anders, because I think a key feature of the Anders decision is the independent review requirement.

The Court is required to make an independent review of the record in order to determine whether or not any prejudicial error existed in the record.

I think that's a key here.

Unidentified Justice: Well, but we're talking about the duties of counsel, and Anders does have the administrative convenience of requiring attorneys, at least in the first instance, to identify the arguably salient issues in the case.

And it seems to me that that aspect of Anders is completely gone if we rule for you in this case, because counsel just files a letter that he's withdrawn.

Mr. Robinette: I think counsel is still required to be appointed, and he's still required to review the record.

I think what's needed is more flexibility on behalf of the State appellate Court.

The Court has a number of options.

The Court doesn't have to take counsel at his word.

It can review the record.

If it's not satisfied with his review of the-record, the Court can say,

"Go back and do it again. "

"We're not satisfied with the job you did. "

The Court can refuse to pay counsel if it doesn't think he did an adequate job.

The Court can appoint new counsel to go back and do a brief, or it can order the original attorney to file a brief.

I think the State appellate Court has a number of options here.

Unidentified Justice: Well, you sure, if you've got those options.

But is there any duty to do anything?

That's the question.

Here it did find arguable issues, and then having found that there were arguable issues, did it have any duty to appoint counsel to argue them?

Mr. Robinette: I don't believe so in this case, because the arguable issues had already been raised and decided.

I think if it found new arguable issues--

Unidentified Justice: But they'd been decided in a manner that did not let this litigant have a lawyer argue his view of those issues.

Mr. Robinette: --Well, he did not have a lawyer argue those issues in the Court of Appeals, I would agree with that.

But he did have a lawyer--

Unidentified Justice: The question is whether he was entitled to have that done for him.

Mr. Robinette: --I don't believe so, under the circumstances of this case.

Unidentified Justice: And what is the circumstance that justifies that result?

The fact that somebody else argued them for some other client?

Mr. Robinette: I believe if the Court finds arguable issues in the record, and those issues have not been raised and have not been litigated, then I think the Court has the option... perhaps the duty... to appoint counsel under Anders.

It would have--

Unidentified Justice: Well, if you say "duty", then why didn't it... then it violated that duty.

Mr. Robinette: --I don't believe so in this case, because those issues had already been decided.

I think it would be a--

Unidentified Justice: But they had been decided in a case to which this litigant was not a party, in which he didn't have a lawyer arguing his view of those issues.

Mr. Robinette: --But it is the same record, though.

They're all... there were three defendants jointly tried at trial.

They were all bound by the same record on appeal.

Unidentified Justice: Well, could you then say that in a joint trial like this, you don't need to appoint lawyers for all three of them, because they're basically the same?

Or just appoint one for one of the three?

Mr. Robinette: Well, I disagree with that.

I think that--

Unidentified Justice: Well, what's wrong with it?

Mr. Robinette: --I think--

Unidentified Justice: Why wouldn't that rule apply to that situation?

Mr. Robinette: --I think because... you might have some equal protection problems if you did not appoint counsel in the first instance.

Unidentified Justice: Well, then why don't you have an equal protection problem here?

Mr. Robinette: Because I don't believe, according to--

Unidentified Justice: Two of them got lawyers, and one did not, and they're similarly situated.

Mr. Robinette: --Well, as the Court said, as the Chief Justice said in Ross v. Moffitt, the Fourteenth Amendment does not require absolute equality nor precisely equal advantages.

Unidentified Justice: You can argue here but if you have absolute inequality, of three people, exactly the same position, you give a lawyer to two and not to the third, and there's no inequality there?

Mr. Robinette: I think there may be an inequality of representation rendered.

There's no inequality in the appointment of counsel in this case.

That's the key distinction, I believe.

Each, each defendant was appointed separate counsel to prosecute the appeal.

Two of them filed briefs, one moved to withdraw.

I don't think that creates an equal protection violation on the part of the Court.

Unidentified Justice: Do you think at the time the Court ruled on the motion to withdraw, it had considered the briefs filed by... on behalf of the other two defendants?

Mr. Robinette: Yes, it had.

It clearly... well, not at the time they ruled on the motion to withdraw.

Unidentified Justice: All right.

So at the time they ruled on the motion to withdraw, that... you admit that was error?

Mr. Robinette: I don't think that's the preferred practice.

I think they should have--

Unidentified Justice: Well, preferred?

Wasn't it rather clear that it was error?

I mean, you can admit a few things, I think.

Mr. Robinette: --Okay, I'll admit that was error.

Unidentified Justice: All right.

Mr. Robinette: But certainly if that's error--

Unidentified Justice: And so now, then they find out later on that there are arguable issues in a case in which the person has never... the defendant has never had an argument made for him.

Do they at that point have a duty to appoint counsel?

Mr. Robinette: --Not if they're not issues yet to be raised that have not already been decided.

Unidentified Justice: Because they've been raised by somebody else representing other clients?

Mr. Robinette: In the same case, based on the same record.

Unidentified Justice: Well, on that basis, you would never... there would be no obligation to appoint a lawyer in the first place.

Mr. Robinette: No, I think that--

Unidentified Justice: Suppose there's a request to appoint a counsel, and the Court says,

"Well, we'll rule on that at our leisure. "

and they look over the record, and the only issues they can see... possibly see... in the case are issues that have been decided in another case, on the same record.

And they say,

"Well, you're just not entitled to counsel, and your case is just not any good. "

Mr. Robinette: --I think you would have a problem with Douglas in that situation, your Honor, because counsel--

Unidentified Justice: Well, what's the difference between that one and this one?

Mr. Robinette: --I think the right to counsel guarantees the opportunity to have the assistance of counsel.

It doesn't necessarily dictate what counsel is going to do.

I think what counsel does--

Unidentified Justice: Well, this appellant didn't have the opportunity to have counsel.

The counsel walked out on him, on arguable issues.

Mr. Robinette: --Then I think that puts it precisely in the frame of a claim of ineffective assistance of appellate counsel.

I think basically what the claim is is appellate counsel did a sloppy job of reviewing the record.

Unidentified Justice: Well, I know, but he had no... after that he had no representation in the appellate Court on deciding the issues, did he?

Mr. Robinette: That's true.

Unidentified Justice: And you're... what the argument really boils down to is that, is that... well, you can't really tell whether a lawyer done him any good, because you never can tell whether a lawyer would do anything... any good... in which event, why ever appoint a lawyer?

Mr. Robinette: I think that you can certainly tell better in the framework of the appellate process.

You can measure prejudice much easier in the appellate--

Unidentified Justice: Well, why have any obligation to appoint counsel on appeal at all?

Mr. Robinette: --Well, Douglas requires it.

Unidentified Justice: Well, maybe we ought to overrule Douglas.

Mr. Robinette: Well, I wasn't prepared to address that, but that could be initiated and addressed.

[Laughter]

Unidentified Justice: Well, you have been, it seems to me.

Mr. Robinette: Okay.

I think the guarantee of equal protection means substantial equality, but doesn't mean precise and absolute equality, so I think counsel has to be appointed in the first instance.

Unidentified Justice: But on the question of [inaudible], have in your own practice, have you ever won a case you didn't expect to win?

Mr. Robinette: That can happen sometimes.

Unidentified Justice: Sure, it's possible, isn't it?

Mr. Robinette: I think, though, there's a key distinction, too, between the trial process and the appellate process, because as Justice Stevens noted in the McCoy case, there's never a duty to withdraw at trial.

Unidentified Justice: Well, on a case on appeal that you didn't expect to win?

Mr. Robinette: Probably so.

I think that's another part of the problem.

Unidentified Justice: Mr. Robinette, why can't you, why can't you answer the question by saying what equal protection requires is that you have a lawyer who exerts his best efforts to find something in your case that will justify reversal on appeal?

And you can't say... there's no way of saying that the defendant here didn't get that.

Mr. Robinette: Well, I agree with that.

Unidentified Justice: We know that the lawyer didn't find issues that could have been found, but that may have been that lawyer's best effort.

And if all that we have held that equal protection requires is that, that you have a lawyer pay attention to the case, and do his best to raise issues on appeal, if that's all that equal protection requires, that was given here.

And there was no error.

Mr. Robinette: I agree, Justice Scalia.

I couldn't have put it better myself.

I think equal protection--

Unidentified Justice: What you're saying is now there was no error.

Mr. Robinette: --What I'm saying is, I think we don't have an equal protection--

Unidentified Justice: That's what Justice Scalia says.

You're saying to affirm, you know.

Mr. Robinette: --Yes.

I think if we have error... I mean, certainly the Anders issue is a very close issue in the case, and it's close because of the factual distinguishing features between this case and the Anders case, the co-defendants and the fact that they did review the arguable issues in the case.

And they had already decided the arguable issues.

But even if there's an Anders violation, I don't believe that precludes this Court from applying a harmless error analysis to an Anders violation, especially in light of some of the other cases--

Unidentified Justice: On your harmless error argument, are you arguing that we should search the record for harmless error?

Mr. Robinette: --I think in the ordinary sense, the Court would review the record to see if any error--

Unidentified Justice: That's your argument, that we should make the harmless error, because the Court of Appeals didn't do that?

Mr. Robinette: --I... I... no, I'm not saying that at all, because I think the Court of Appeals in effect made a finding that there was--

Unidentified Justice: They said there was no prejudice, but they didn't say that they could find beyond a reasonable doubt that there was... that the error was harmless.

Mr. Robinette: --I think initially this Court has to decide whether or not harmless error analysis is appropriate.

Unidentified Justice: If they... if we should decide that, then what do we do?

Mr. Robinette: I would like to see the Court decide the case.

I don't believe remand is necessary, although the Court may feel that the Court of Appeals did not precisely apply a harmless error test, and you may remand for that purpose.

That's a closed question there.

I think in effect they made a finding there was no prejudice, and the error that he may have sustained in the case was harmless.

And I would like to address briefly some of the issues that were raised at the eleventh hour--

Unidentified Justice: Well, just before you do that, what's, what's at stake here for your State?

Suppose we do what you say.

Isn't that really administratively more burdensome from the Courts?

Why not just have them file an Anders brief?

Mr. Robinette: --Well, there's a lot of arguments made that Anders briefs are much more burdensome than requiring a Court appointed counsel just to file a frivolous brief on the merits--

Unidentified Justice: Burdensome to whom?

Mr. Robinette: --Burdensome to the Courts, burdensome to counsel... there are four States now that are refusing to follow the Anders briefing procedure.

And they follow the so-called Idaho rule, which is discussed in some of the articles mentioned in the amicus brief of the Ohio--

Unidentified Justice: How does that work?

Mr. Robinette: --Defense Lawyers Association.

The Idaho rule merely says, straightforward, that counsel, appointed counsel may not withdraw from an appeal on the ground that it's meritless or frivolous.

So, in effect, what those States hold is he must file a frivolous brief.

Unidentified Justice: Well, that's Anders plus.

But you're talking about Anders minus, and there's a difference.

Mr. Robinette: That's true.

I... I think McCoy is--

Unidentified Justice: So I think the Idaho procedure is a more, more stringent than Anders, and you're talking about something that is less.

Mr. Robinette: --Well, the Idaho rule is also unethical, because it requires--

Unidentified Justice: Well, then, why are we talking about the Idaho rule?

It doesn't apply.

Mr. Robinette: --That's true, it doesn't apply here.

But I think there's some policy considerations to be considered.

I think the Anders case... that's part of the problem with the Anders case.

Unidentified Justice: Well, you're telling me some States have a more strict rule than Anders, and therefore it follows that others should be able to have a less strict rule.

That doesn't seem to me to follow.

Mr. Robinette: Well, I think it goes to what Justice Stewart said in his dissenting opinion in Anders.

Part of the problem is, there may not be one right answer to cover every situation in the 50 States dealing with court appointed counsel on appeal.

And I think the McCoy case has recognized that, because in McCoy, this Court upheld a Court rule in Wisconsin that went beyond Anders.

I think that's a recognition that maybe there's not just one right answer in the situation... that there may be other ways of handling the situation.

Unidentified Justice: Do you think Anders was an equal protection case, or does it rest on the right to counsel, if there was one?

Mr. Robinette: I think it was primarily... I think there's some overlap there, as the Chief Justice has noted in some opinions, between due process and equal protection.

I think it was primarily an equal protection case, because they felt like it was not substantial equality in the case, and you had to have substantial equality, although you don't have to have absolute equality.

But in this case, I think you've got--

Unidentified Justice: Well, the real issue then could never be harmless error, in this case, could it?

It should be, just as Justice Scalia suggested, it just don't... no error at all, no denial of equal protection.

Mr. Robinette: --I don't believe there was error.

I agree with Justice Scalia.

I don't think there was error.

Unidentified Justice: Well, then it's an equal protection case.

Mr. Robinette: This case, I think, is primarily ineffective assistance of counsel, because there was no equal protection violation.

Unidentified Justice: Well, that's not an equal protection case.

Mr. Robinette: Pardon?

Unidentified Justice: That's not an equal protection inquiry, is it?

Mr. Robinette: No, it's not.

And effective assistance is due process.

But my argument here is, there was no equal protection violation.

He received substantial equality because he had counsel appointed in the first instance, and counsel had the opportunity to review the record.

That basically the claim is, he just didn't do an adequate job reviewing the record, did not file a brief, and I believe the claim is they think he should have filed a brief.

And I believe the amicus brief filed by the ACLU basically advocates a position that they would rather have a brief filed in every case.

But I don't think that's required by the Constitution.

And I think the procedure that was employed in this case satisfied both due process and equal protection.

And if there's a claim--

Unidentified Justice: Isn't it a very efficient way, however, of making sure that counsel is doing his best, even if his best is no good?

At least you make him file a brief.

Mr. Robinette: --You're referring to the Anders procedure?

Unidentified Justice: Right.

Mr. Robinette: It's a way of assuring that.

I'm not so sure how efficient it is, because a lot of counsels don't understand exactly what they have to do to comply with the true Anders brief.

Unidentified Justice: Well, what alternative do you have?

I mean, suppose, suppose we really want to make sure that this requirement we've imposed in Anders is, is not just symbolism... that we're really not just naming counsel but getting counsel to work on the case?

What, what better way would there be except to make them require either an Anders brief or an un-Anders brief, a McCoy brief?

Mr. Robinette: Um-hum.

Unidentified Justice: Wouldn't that be a--

Mr. Robinette: I agree.

I think part of the problem is, however, a lot of attorneys don't like the Anders briefing procedure, because they feel like it forces them to brief the case against their client.

It puts a counsel into a very difficult situation, because on the one hand, he's moving the Court to withdraw on the grounds that the appeal has no merit, and on the other hand, he's pointing, raising issues in the brief, so-called arguable issues, but he's saying these issues are frivolous.

So, therefore, he withdraws from the case on that basis, and that puts counsel in a very difficult situation.

A lot of attorneys, quite frankly, would just rather file a frivolous brief on the merits and be done with it.

That's the easiest thing to do.

Maybe it's what I would do, if I was in that situation.

I don't know, but it's--

Unidentified Justice: --All right.

We'll accept that, too.

I mean, you either file an Anders brief, a McCoy brief, or a frivolous brief on the merits.

Why shouldn't we have some kind of rule like that, to make sure that counsel are really putting in their effort in the case?

Mr. Robinette: --Well, I think again, the problem with requiring that brief on the merits to be filed is it would be unethical in some cases.

I think the independent review requirement where the Court of Appeals independently reviews the record is a way to provide a safeguard--

Unidentified Justice: It's no safeguard at all.

You wouldn't need counsel.

I mean, you know, the whole reason you need counsel is because you don't trust an independent review by the Court of Appeals.

Isn't that why you have counsel?

Mr. Robinette: --I think you have counsel so he can act on client's behalf and raise the issues that he thinks ought to be raised in the case.

Unidentified Justice: And if you had full confidence that the Court of Appeals would find it on its own, you wouldn't require counsel.

Mr. Robinette: I think you at least have to require counsel to examine the record, and obviously this court in Anders didn't feel like that was enough.

They felt like the Anders brief was required to ensure that factor, but in any event, even with the Anders requirement in place... and it doesn't appear this Court is ready to do away with the Anders briefing requirement... based on my reading of the McCoy decision, I think there still was no Anders violation in this case by the Court of Appeals.

It still boils down, in my view, to a situation where it's claimed that council just did a sloppy job and did not brief the case, and should have briefed the case.

But I think that ought to be judged on a deficient performance standard, not on presumption of prejudice standard.

It makes no sense to presume prejudice in a case like this when the Court doesn't presume prejudice in many cases of right to counsel violations at trial.

Recently in the Satterwhite case, Satterwhite v. Texas, the Court held that harmless error analysis applied to a counsel, right to counsel deprivation in a capital sentencing proceeding.

And certainly the difficulty of measuring prejudice in a case like that is much greater than the difficulty of measuring prejudice on an appeal situation like Anders, where regardless of who the attorney is, he's bound by the same record.

It doesn't matter who you appoint... you could appoint 15 different attorneys.

They've all got to examine the same record.

They can't go outside the record.

They can't introduce new evidence.

They've got to pull their issues out of that record.

And I think that's... makes prejudice much easier to measure, and I think certainly if the Court does not want to adopt a Strickland type test in a situation like this, certainly harmless error analysis is appropriate in any event.

There's no good reason why harmless error analysis would not apply in a case like this.

Briefly, as far as some of the issues that were raised in the reply brief... and I'll refer to pages 9 through 11 of Petitioner's reply brief... he raised some issues that he says prejudiced Mr. Penson, because they were not raised, and they could have been raised.

I would note, also, that Mr. Penson had the same attorney that he has now... the same office represented him on his discretionary appeal to the Ohio Supreme Court, and basically they were complaining about the job that the Court appointed appellate counsel did in that Court, that they made no effort to raise any of these issues before the Ohio Supreme Court, nor did they make any effort to raise any of these issues at any time until the reply brief was filed in this case.

The first thing they refer to is that the trial court erred in convicting and sentencing Penson for both having the weapon under a disability in Count 29 of the indictment and the firearms specification that accompanied that indictment.

And they claim that that's a violation of Ohio's multiple-count statute, and also a violation of double jeopardy provisions.

Unidentified Justice: What page is that?

Mr. Robinette: That's on page 9.

The issues they raise go from page 9 through page 11.

Unidentified Justice: It's difficult to see how we could evaluate some question of Ohio law.

Mr. Robinette: That's true.

That may be one reason why the Court would want a remand on a consideration of those issues.

However, I think that those issues are clearly without merit, and that's why they were not raised until such a late time in this proceeding.

There's Ohio case law that holds that those statutes are not one and the same statute, and they do not violate the multiple count statute.

Unidentified Justice: Well, were these issues decided in a State Court?

Mr. Robinette: No, because they were never raised in the State Court.

Unidentified Justice: Well, do we have any jurisdiction to consider those questions?

This is from a State Court, isn't it?

Mr. Robinette: Yes.

And I think Petitioner's argument is that he was deprived of the opportunity to have those issues decided.

But my position is, those issues could have been raised under the guise of an ineffective assistance of counsel claim to the Ohio Supreme Court, that's often done.

That's a way that's often used to get around the ordinary rule that the Ohio Supreme Court will not rule on an issue that wasn't raised in the lower court.

It's done all the time under the guise of ineffective assistance.

But yet they were not raised at that point.

The Court may not want to--

Unidentified Justice: Well, how could they have been raised before the Ohio appellate Court, though?

Mr. Robinette: --They were not raised there, it's true.

Unidentified Justice: And the reason they weren't, I suppose, is he didn't have a lawyer.

Mr. Robinette: Well, I suppose you could make the argument.

You could come up with any number of issues that could have been raised in hindsight.

Unidentified Justice: Well, that's not your answer.

Your answer is, it's not because he didn't have a lawyer, but because he did have a lawyer who knew Ohio law, and knew that since they hadn't been raised in the trial court, they couldn't be raised on appeal.

Mr. Robinette: Some of these issues could have been raised on appeal, I think, because--

Unidentified Justice: Oh, some could?

Mr. Robinette: --It's a judgment call whether or not the lawyer thinks they have any merit.

Some of these issues had already been decided by the same appellate Court adversely to the position that Petitioner now takes.

I mean, is the lawyer obligated to raise an issue that's already been decided by the appellate Court in his district?

I don't think so.

Unidentified Justice: I don't see how we can decide that, when there was no lawyer there.

Mr. Robinette: Again, we get back to the situation where a lawyer was appointed in the first instance, and he made a judgment call not to raise certain issues.

Unidentified Justice: Douglas case, that's where we get.

He's... you haven't touched it.

Mr. Robinette: He may not have done a lot, that's for sure.

But he was appointed.

I don't think you can blame the appellate Court for the lawyer's, perhaps poor, performance in the case.

I think it's a situation where you have to judge the lawyer's performance, because I don't think the appellate Court has violated Mr. Penson's rights.

Unidentified Justice: Well, what should an appellate Court do, if midway through an appeal, it's perfectly obvious that the counsel they appointed is a, is a, if he isn't a nitwit, he's pretty close to it, and there's just not going to be any effective assistance?

Mr. Robinette: If the Court comes to that conclusion midway through the appeal, they always have the option to dismiss this attorney from the case and appoint another attorney.

There's no problem with that.

Unidentified Justice: Well, didn't they here come to the conclusion that the lawyer really didn't, didn't do what he was supposed to?

Mr. Robinette: I don't think they were particularly pleased with the job that he did.

But I think the viewpoint of the Court was there was no prejudice from what he did, based upon the issues raised in the other cases and its own review of the record, and to appoint another attorney at that point in time to review the same record would have been a fruitless exercise.

I think that's basically the Court's position.

That's basically a no prejudice, harmless error type decision on their part.

And I think they're correct in that determination.

I think what, basically, Petitioner would have this Court do is give him a windfall, give him a second bite at the apple all the way up the appellate ladder, and for what?

When he suffered no prejudice in the first place, I really don't see what it would accomplish, other than to go put the State through another enormous expense.

Unidentified Justice: Is counsel paid in Ohio for representing people on appeal?

Mr. Robinette: Yes, yes.

I'm not sure what the pay schedule is, but they are appointed by the Court and they are paid by the State.

Now, in this case, maybe he should not have been paid, but as it's been pointed out, it's hard to judge from what appears in the record exactly how much time he put in.

They are required to file a statement of their hours in the case.

And I haven't seen that... I don't know how many hours he claimed to have put in, but the transcript was approximately 900 pages.

If he just read the transcript, he would have had to put in a number of hours just doing that.

But again, you know, a lot of this is a judgment call, and you're basically judging the attorney's performance.

And by judging the attorney's performance, I think it ought to be judged under a prejudice standard as whether or not the client actually suffered any prejudice.

If there are no further questions, that would conclude my argument.

Unidentified Justice: Thank you, Mr. Robinette.

Mr. Ayres, you have seven minutes remaining.

REBUTTAL ARGUMENT OF GREGORY L. AYRES

Mr. Ayers: I'm shocked that counsel for the State of Ohio describes this Court's decision in Douglas v. California as a windfall.

I think the right to counsel on appeal, like the right to counsel at trial, is much more fundamental than that.

This Court indicated in Evitts v. Lucey that counsel's presence is essential to adequate and effective review.

It certainly cannot be described as a windfall.

Unidentified Justice: So do you think the... do you think that our decisions, the Court's decisions have now clearly come out to require counsel on appeal, not as a matter of equal protection, but as a matter of some other provision in the Constitution?

Mr. Ayers: I think as a matter of due process, equal protection, of course guarantee the right to counsel, but the right to effective assistance is required with the Evitts decisions.

The counsel just cannot just be present.

He must engage in an effective performance.

Unidentified Justice: This is not a matter of due process?

Mr. Ayers: Well, the Court did rely upon the due process clause in the Evitts decision.

That was--

Unidentified Justice: Not the equal protection clause?

Mr. Ayers: --No.

That was the only issue presented by the record on the appeal in Evitts, so that was the only Constitutional provision relied upon by the Court, the due process clause.

But Evitts made it very clear that an attorney must file a brief where there are non-frivolous issues, where there are arguable issues.

Evitts specifically reaffirmed Anders, and said that when counsel fails to file a brief, that's un-Constitutional.

That denies due process.

Well, that's exactly what occurred here.

And for counsel for the State of Ohio to say that it's a windfall just goes against a whole line of decisions, beginning with Douglas and ending with McCoy, four or five decisions in between.

Unidentified Justice: Mr. Ayers, can I ask you a question about your opponent's suggestion that one possible disposition of this case would be to remand it to the Ohio Court of Appeals to decide whether there would be error, assuming it was error... was harmless or not?

If we should do that, would your client be entitled to have a lawyer represent him in the proceedings before the Ohio Court of Appeals?

Mr. Ayers: Well, of course.

He's... our position is, he should have a new appeal which he didn't get in the first place.

If the Court were going to remand the proceeding, certainly he should have... if it's back to the first appeal level, he should certainly have a lawyer.

That's what Douglas requires.

Unidentified Justice: But their disposition would give him a lawyer, as I see it now.

And I'm not sure one would be any more expensive than the other.

I don't know whether it makes any difference whether we would do that, and let your client then have a lawyer to argue, file a brief, or to reverse, since they appoint a lawyer on the appeal.

Mr. Ayers: Well, I think that points up the whole problem with this process, your Honor.

If the Court of Appeals had applied Anders, the crisp, bright line rule, we wouldn't be here.

This simple case has become a complex Constitutional case.

Mr. Anders, if he had... I'm sorry, if Mr. Penson had gotten his appeal in the Ohio Court of Appeals, we wouldn't be here.

Might be here on some other issue, but we wouldn't be here on the denial of right to counsel.

And that's what happens when counsel is denied and the Court has to engage in a prejudice evaluation and so forth.

Unidentified Justice: Well, you certainly wouldn't be here if you would have won, would you, counsel?

Mr. Ayers: Well, of course.

Unidentified Justice: And how do you know you wouldn't be here if... if--

Mr. Ayers: Well, not on this issue--

Unidentified Justice: --If counsel has been appointed and you are?

Mr. Ayers: --Not on this issue, your Honor.

And I think that that points up the problem with the denial of counsel.

You really have to engage in a speculative exercise to figure out what counsel would have done, or should have done, and would it have... what he would have argued to the appellate Court, what the appellate Court would have decided... and this Court said in Strickland, when counsel is denied, it really isn't worth the cost of trying to figure out the effect of the denial of counsel.

Unidentified Justice: May I ask another--

Mr. Ayers: I think that's the problem with applying a prejudice test in this situation.

Unidentified Justice: --May I ask another question about the practice in Ohio in appointed cases?

Does the lawyer get paid so much per case or so much per hour in a case of this kind, the appointed counsel?

Mr. Ayers: There are maximums established by the County, and the lawyer gets paid so much an hour.

Unidentified Justice: So much an hour.

Mr. Ayers: But... yes.

Unidentified Justice: So that he wouldn't get the same amount for filing this, this Anders letter as he would if he'd filed a brief?

Mr. Ayers: I hope not.

Unidentified Justice: Yeah.

Well, of course, if he spent the same amount of time on it, though, I suppose he would.

If he put in an hourly statement, showed--

Mr. Ayers: If I were on the appellate Court, he wouldn't get anything.

Yeah, I think counsel did--

Unidentified Justice: --Yeah.

Mr. Ayers: --did nothing other than review the record in this case, and didn't do his job as he is required Constitutionally to do.

The Court did not do its job in requiring him to file an advocate's briefs where there were arguable issues.

This Court made it very clear in McCoy that where there are arguable issues, the attorney cannot serve the client's interest unless he files an advocate's brief.

That did not occur here, and for the State to argue that Mr. Penson's right to counsel was satisfied by a co-defendant's lawyer is just totally inadequate.

When you're reviewing a record as an advocate, as an appellate lawyer, representing a client, you first of all consult with your client, and then you review the record with a view to seeing if there were errors in the record that pertained to him.

You're not thinking about the other co-defendants.

You're looking for errors that specifically pertain to him, and then you're filing an advocate's brief advocating on his behalf those particular errors.

Mr. Penson did not get that.

This Court made it very clear in Ross that every defendant must be afforded an adequate opportunity to participate in his appeal, and to have meaningful access to the appellate process.

That was completely denied here.

One further point that I would like to address is that the State argues that we should apply a prejudice test here because we have a performance.

Evitts again points out that counsel, in order to be effective, must engage in a performance.

When counsel does not file a brief on appeal, he's engaged in nothing.

It's like a lawyer at trial who goes out and talks to all the witnesses but doesn't come into the courtroom and represent his client.

A brief on an appeal is the primary tool by which the appellate advocate acts as a sword to convince the Court that error has occurred.

The attorney was effectively absent in this case.

He did not participate in the appeal.

Unidentified Justice: What if paid counsel spends a lot of time examining the case, finds that there's nothing to it on appeal?

He tells his client,

"I'm sorry, you have no basis for an appeal. "

Has he done his job?

Could he send him a bill for that time?

Mr. Ayers: Well, that's between he and his client, I suppose.

But the point is, with respect to your question, Justice Scalia, is that client can go to another lawyer and ask him, and that lawyer may find issues.

The monied defendant can get a lawyer to present issues, especially if they're arguable issues as in this case.

Mr. Penson could not do that.

He was too poor, and he was denied the equal protection which Douglas v. California gives him.

Chief Justice William H. Rehnquist: Thank you, Mr. Ayers.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Mccoy v. Court Of Appeals Of Wisconsin - Oral Argument

Wed, 13 Apr 2011 20:13:04 +0000

Case:

Mccoy v. Court Of Appeals Of Wisconsin

Media File:

87-5002_19880120-argument.mp3

Related Transcript:

87-5002_19880120-argument.xml

Transcript:

ORAL ARGUMENT OF LOUIS BENNETT BUTLER, JR., ESQ. ON BEHALF OF APPELLANT

Chief Justice William H. Rehnquist: Mr. Butler, you may proceed whenever you're ready.

Mr. Butler: Thank you, Mr. Chief Justice, and may it please the Court:

This matter is before the Court on appeal of the decision by the Wisconsin Supreme Court upholding the constitutionality of a procedural rule requiring Appellate counsel to inform the Court why issues in an appeal lack merit when counsel reaches that conclusion.

We contend in this case that the decision of the Wisconsin Supreme Court is in error and that the effect of the Appellee's argument and the decision of the Wisconsin Supreme Court is to ask this Court to redefine either the role of counsel in an appeal or the nature of an appeal or both.

Now,--

Unidentified Justice: You say that's the result of the Wisconsin Supreme Court's decision?

Mr. Butler: --That is correct.

Unidentified Justice: And what's the matter with that result?

Mr. Butler: In this particular case, the problem with that result is that, as Appellee concedes in their brief, it removes an appeal from the adversarial testing process once counsel reaches the conclusion that there is no merit to the appeal.

In so doing, since Wisconsin has provided by its constitution that a client is entitled to an appeal as a matter of right, he is getting something less than that in the Wisconsin judicial system.

Unidentified Justice: Well, of course, indigent defendants who will get appeals as a matter of right as in Wisconsin are entitled to the benefit of counsel, but we have cases that say they're not going to get everything that the well-heeled criminal defendant is going to get.

It just isn't in the nature of things.

Probably a well-heeled defendant can walk into some law office and plunk down enough money to get the lawyer to make any claim the defendant tells him to make.

It's unfortunate, but it's true.

But certainly you don't contend that the indigent defendant is entitled to that sort of service, do you?

Mr. Butler: We are not contending that the indigent defendant is entitled to everything.

For example, I think you are correct that a client who has a great deal of money can shop around.

I think that was recognized in the United States v. Edwards, 7th Circuit case.

You can shop around and look for someone to make that argument.

At the same time, this Court has held consistently that, in fact, in discussing the due process rule, they've also discussed it in the context of equal protection, and they say essentially the purpose of Anders is to try to provide a criminal defendant with the same type of representation he would receive if he were having a retained counsel.

So, the Court has made that recognition in the past.

Basically, in this situation, Appellee concedes that the purpose of this rule is to take the appeal out of the adversarial testing process.

Now, since the Court has previously described in Polk County v. Dodson and Evitts v. Lucey that an appeal is just that, it's the adversarial testing process, and that a client is deprived of due process when he has less than that.

In effect, what they are asking the Court to do is, in a context of a no merit appeal, take the appeal out of the adversarial process, redefine the nature of appeal, and give the client something less than that which he is entitled to as a matter of right in Wisconsin.

Now, in addition--

Unidentified Justice: May I interrupt, Mr. Butler, right there?

Assuming you just applied Anders as written and you don't have this additional requirement of a lawyer explaining why he thinks it's frivolous, do you think the normal Anders case in which the lawyer files an Anders brief, in which he makes the... identifies the arguable arguments on behalf of his client and then says, but I think they're frivolous, do you think that takes it out of the adversarial process?

Mr. Butler: --The one thing that Anders did... I do not.

I think the one thing that Anders did--

Unidentified Justice: You think that is the same advocacy that the rich person that the Chief Justice mentioned would get?

Mr. Butler: --Right.

I think the one thing that Anders did is to try--

Unidentified Justice: It is the same advocacy that the rich client would get?

Do you think his client is going to go in and make some arguable things, saying yes, but I think it's frivolous and I'd like to withdraw?

Mr. Butler: --No.

I'm sorry.

I misunderstood your question.

No.

I can't imagine a client paying a lawyer to go in and argue the case as totally frivolous.

Unidentified Justice: What we've got is a case where the paying client, if he's got a conscience lawyer, would say to him, you're going to waste your money.

I'm telling you that in advance.

It's not worth $5,000 to file this.

Of course, if you want to throw your money away, I'll file your papers for you.

Mr. Butler: That's correct.

Unidentified Justice: What you're saying is that the poor defendant is entitled to have the state waste the same amount of money.

Mr. Butler: That's correct.

Unidentified Justice: That's correct.

Mr. Butler: In effect, the poor defendant... for example, in Anders, Anders tried to resolve a difficult ethical dilemma that counsel faces.

When, on the one hand, you are obligated to litigate the appeal on the client's behalf to the best of one's ability, but, on the other hand, you have reached the decision that the case is wholly frivolous and without arguable merit.

Now, the client is entitled to have the appeal as a matter of right and he's entitled to a vigorous advocate to put forth issues on his behalf.

At the same time, the lawyer is confronted with--

Unidentified Justice: But he's not under Anders.

He's not under Anders entitled to that.

Mr. Butler: --Under Anders, he is entitled to that.

Unidentified Justice: No, he's not entitled to the vigorous advocacy.

He's entitled to have the points identified, the colorable basis identified and then the lawyer is entitled to withdraw.

Mr. Butler: That's should the Court reach the conclusion that the case is wholly frivolous.

However, Anders does--

Unidentified Justice: But he doesn't go in and make a vigorous argument, don't let me withdraw.

He files his brief with the arguable points in it and says I think these are frivolous.

And then he's out and if the Court thinks there's anything in it, they appoint a new lawyer under Anders.

Mr. Butler: --Right.

The one problem I think with that analysis, I think Anders does require you to be an advocate.

For example, Anders cites as its support the case of Ellis v. United States.

Ellis v. United States had a discussion requirement very similar to the one that the Wisconsin Supreme Court adopted in this case, and in that particular case, two different attorneys evaluated the appeal, cited possible issues to support the appeal, and then, after raising those issues, then proceeded to advise the Court why those issues lacked merit.

The United States Supreme Court reversed the decision of the United States Court of Appeals and held that that was not acting as an advocate on behalf of the client.

Unidentified Justice: But if he points out those arguable basis for the appeal, and then in the last line says I resign, please let me out, and the Court lets him out, there's nothing wrong with that, is there?

Mr. Butler: No.

Unidentified Justice: That's what Anders says.

That's what Anders says.

Mr. Butler: That is what Anders says.

Unidentified Justice: And he doesn't need to give any reason for asking to resign or to get out?

Mr. Butler: I don't think he should.

I think at that point--

Unidentified Justice: So, it's just to be inferred that my mother-in-law is sick or what?

Is it I just haven't got time or--

Mr. Butler: --No, no.

I think--

Unidentified Justice: --It's really inferred that he thinks it's frivolous.

Mr. Butler: --Right.

I think it ties into Justice Stevens' question.

I think counsel is under Anders supposed to make a vigorous argument.

I think as a preface to the argument, counsel must advise the Court that, in his opinion, he believes the argument he is about to make is frivolous, but he should still argue the case on behalf of the client.

Unidentified Justice: But that's the kiss of death in any real live court, is to say I'm going to make the following points and I intend to make them very vigorously, but I want to tell you beforehand that I think it's all a pile of junk.

That's really what he's saying.

By asking to resign.

Mr. Butler: In Anders, that essentially is correct.

However, the value of that rule and the reason Anders is a difficult case for an appellate lawyer to defend, because you are doing exactly that.

You are telling the Court that, in your opinion, the case is frivolous.

However, by--

Unidentified Justice: And we've said that that doesn't violate the 6th Amendment.

Mr. Butler: --That's correct.

Unidentified Justice: So, why does it violate the 6th Amendment for the lawyer to tell the Court why he thinks it's frivolous?

Mr. Butler: At that point, by telling the Court why the case is frivolous, the lawyer is doing more than just acknowledging that, in his opinion, the case is weak, but the Court must make the determination.

At that point, counsel is now providing the brief, in effect, for the other side.

You are now briefing both sides of the case.

Here's our case, here's the state's case.

In my opinion, I'd side with the state.

Unidentified Justice: Well, a lawyer has an ethical obligation under some circumstances to bring to the Court's attention authorities on the other side, doesn't he?

Mr. Butler: That's correct.

Unidentified Justice: Or she?

Mr. Butler: And that's why I believe that Anders resolved that ethical dilemma.

Anders says in that situation, we give you permission to tell us that the case is frivolous, but we still want you to argue it.

So, they have resolved the ethical dilemma.

They allow the attorney to be ethical because you are telling the Court that in your opinion the case is frivolous, and at the same time, they allow you to be an advocate.

Unidentified Justice: And so he can't be sanctioned then, I suppose.

Mr. Butler: That's correct.

Unidentified Justice: Because most lawyers have, at least under the current rules, have an obligation not to file frivolous papers.

Mr. Butler: That's correct.

And that's, in fact, the case in--

Unidentified Justice: Because they can be... certainly, in the trial court, Rule 11 would catch them, isn't that right?

Mr. Butler: --That's correct.

Unidentified Justice: So, I don't know that you can say that even a well-paid... even a paying client isn't entitled to a lawyer who will file frivolous cases.

The lawyer isn't supposed to do that.

Mr. Butler: No.

The lawyer is not supposed to do that, and we are not arguing that there are attorneys out there who would be unethical.

Unidentified Justice: It has been done.

What about a case where the lawyers argue the case and haven't read the briefs.

The judge says, well, look, is your only part in this that the man was convicted on three counts and was sentenced on count two before he was sentenced on count one.

And he says, yes, that's the only point.

He said, why are you bringing it here.

He said, well, I was appointed and the client insisted on it.

Well, all he wasted was five minutes of the Court's time.

That's all.

Mr. Butler: That's correct.

In fact, the irony of the Wisconsin Supreme Court's decision, if it had really... saves the Court no time whatsoever.

The only agency that is saved any time by the Anders procedure is the agency representing the State of Wisconsin.

The Court in either case has to evaluate the arguments that are presented to it by Appellate counsel, whether it's a meritorious appeal or whether it's a no merit appeal.

The public defender or the appointed Appellate counsel who is representing the defendant has to brief the issues in either situation, advise the client of the possible ramifications to the appeal, his analysis of the merits of the appeal, and whether or not there's a possibility of success, and then present those arguments to the Court.

The only one who doesn't have to do anything in this situation is the representative of the State of Wisconsin, because, now, appointed Appellate's counsel is doing their job for them.

We are now briefing the case for the state.

Unidentified Justice: Yes, but that's not what brings you here.

I mean, you're not complaining about saving the state money.

You're complaining about prejudice to your client.

Mr. Butler: That's correct.

It was the Wisconsin Supreme Court that complained about the money.

Unidentified Justice: Right.

But it seems to me if you assume that the state would come in with an opposing brief anyway, the only effect... the only possible effect of making counsel state why he thinks it's frivolous is to enable the Court more readily to focus on the fact that his reasons are wrong.

Don't you think if you're going to have a brief for the other side from the state anyway, don't you think it would more likely help than harm the individual defendant for counsel who has very bad reasons for thinking that the appeal is frivolous to set forth those very bad reasons in a brief and the Court can look at it right away?

Otherwise, all the Court knows is, well, he's made these arguments, but in his heart of hearts, he thinks it's all nonsense.

I don't see how your client is hurt by that.

Mr. Butler: In answer to your question, Justice Scalia, first of all, in Wisconsin, the Attorney General's office is not supposed to file a response brief in an Anders situation.

In fact, they have taken the position earlier in this case that they should not even be served with a copy of the brief in that situation, and they have taken a consistent position that they do not have to respond and so far that is the rule of law in Wisconsin.

So, you are not anticipating getting a response from the State of Wisconsin in an Anders situation.

The only one who provides the arguments on behalf of the State of Wisconsin in an Anders situation is the attorney for the client.

Unidentified Justice: Yes, but I don't see how that hurts your client.

That's the question.

(A) It seems to me that it might actually benefit the client in some cases because I've had cases where I thought the answer was perfectly clear and then I started to write out the reasons why it's clear and I find, well, it isn't really all that clear, and if you come to a conclusion that something is frivolous, say, oh, there's nothing to this case, and then you have to explain why, you're going to be darn sure it is frivolous.

It's easy sometimes in a big record to say that I don't think there's anything here.

So, doesn't the requirement of articulating the basis for the conclusion it's frivolous actually provide some protection to the client?

Mr. Butler: Actually, it does not because by providing the Court with those reasons, assuming that you've made an accurate determination, what you have done in that situation is told the Court why the case lacks merit.

It's our position that if it is not readily apparent from the face of the Anders brief why that case is frivolous, then perhaps counsel was wrong in making that determination.

Unidentified Justice: Yes, but if he is wrong, he won't be able to spell out satisfactory reasons and he'll change his mind.

But if he can just file it without stating the reasons, he's going to go ahead and make some mistakes.

That's my point.

Mr. Butler: But the answer to that, Justice Stevens, is that in that situation, the Court can order the opposing side to brief the case for the other side.

You don't need for counsel to step in.

You don't need to increase the appellate process.

You still have an advocate's brief on behalf of the client.

The issues are still highlighted.

Unidentified Justice: It seems to me in that case, it would be better for the lawyer to find out himself that he was initially wrong in his judgment of frivolity or frivolousness, whatever the right word is, and to correct it himself and say, no, there is some merit to it, rather than filing an Anders brief without an explanation and then having the state say, well, he acknowledges frivolous, so that's it.

Mr. Butler: Justice Stevens, I think a lawyer does that when he makes the analysis of the case.

Unidentified Justice: Well, you hope he does.

Mr. Butler: The problem is not with making the analysis for the case.

The problem is within providing that analysis--

Unidentified Justice: Well, if he does it, how often does he do it wrong?

How many Anders briefs have you filed that you think you shouldn't have filed?

Mr. Butler: --Your Honor, I've only filed two Anders briefs in my life.

I question whether I should have filed either one of them.

Unidentified Justice: In those cases, do you think it would have really made any difference if you'd included the statement of reasons?

Mr. Butler: In one of the cases, in fact, I did include a statement of the reasons at my client's direction, and I do think it made a difference because his case came subsequent to this one.

His conviction has already been affirmed.

That is one of the unique things about the Wisconsin rule.

You don't dismiss an appeal in Wisconsin if the Court accepts an Anders brief.

You affirm the conviction.

So, he has an appeal, but it's not the same type of appeal that's contemplated by the Constitution.

Unidentified Justice: Well, except the Constitution doesn't really contemplate an awful lot of frivolous appeals.

I mean,... well, anyway.

Mr. Butler: No.

I agree the Constitution does not contemplate a lot of frivolous appeals.

I think counsel's responsibility is to try to argue on behalf of his client as best as possible.

In the unlikely event that you do have or the unique event that you do have a frivolous appeal, you're still obligated until you are allowed to withdraw from the case to protect that appeal.

You still represent the client, and to the extent if there is a conflict between a client's ethical responsibility and a client's legal responsibility to the client under the Constitution, it's our contention that the Constitution should control.

We are not supposed to be an administrative aid to the Court.

Polk County v. Dodson, the Court made it clear.

The client is supposed to have the undivided loyalty of the attorney, and what the Wisconsin Supreme Court has admittedly done in admitting that it goes beyond Anders is it says, no, you have two duties in this case.

Only one is to the client, the other is to the Court, and we want you to wear both hats at the same time, and that provides the client, and this goes to the second part of the argument, with the redefining of the role of counsel, that provides the client with less than an advocate.

You are not being an advocate.

You are being a counselor as Appellee as pointed out--

Unidentified Justice: Yes, but you're arguing... you say he's entitled to the undivided loyalty of the lawyer.

Well, the lawyer gives him his undivided loyalty and when he says to him, I recognize you want to appeal but there is absolutely no merit to this appeal, it's a waste of time and money and everything else, and, so, I don't think you should appeal.

There's nothing inconsistent with that.

Mr. Butler: --There's nothing inconsistent with that.

Unidentified Justice: And then he goes on and he says, moreover, since it's frivolous, I have an ethical duty not to prosecute it and to advise the Court of it.

Why is that inconsistent with his duty to his client?

Mr. Butler: Because the client at that point says, I have a right to an appeal and I want the appeal, and at that point, the lawyer's duty is to protect that appeal.

His constitutional duty.

Because he has the right to appeal as a matter of right, not as a matter of privilege.

Unidentified Justice: Well, Wisconsin can well look at it a different way, that the reason he's setting forth the causes for frivolousness are not to harm his client, but, rather, to justify to the Court his withdrawal from the case.

Now, there do arise situations where a lawyer has two obligations; one to the Court, one to the client.

In justifying his actions to the Court, it seems to me he is certainly being no less loyal to the client that by the mere fact of his saying I will not take an appeal.

I mean, at that point, he's already betrayed the client if you consider that a betrayal.

From there on, all he's doing is justifying to the Court the reason for his withdrawal, so that the Court, if it sees that the reason is no good, can take appropriate action to be sure that a proper appeal is litigated.

Mr. Butler: I understand your concern, Justice Scalia.

The problem in that situation is that, for example, if we liken this to a trial situation as this Court has done in the past, in Evitts v. Lucey, they described the role of counsel.

They cited Strickland v. Washington and United States v. Cronic.

If you liken this to a trial situation, this would be akin to a lawyer coming in on the eve of trial, evaluating the case, telling the client it's obvious that you're guilty, it's obvious that we don't have a prayer, we ought to plead and Lake the best deal possible, and the client says, no, I want a trial, and the lawyer says, no, I'm going to plead you guilty.

Unidentified Justice: Well, Mr. Butler, I think there is a good deal of difference between a trial situation where the burden of proof is always on the Government and any competent attorney knows that he represents the defendant by simply putting the Government to its proof, just by cross examining, and on the other hand, on appeal, you get into situations, which I daresay you've confronted some yourself having filed two Anders, where you have to... you know, the burden of proof is no longer on the Government, the burden of proof is on the Appellant, and there just isn't much... there's virtually nothing to complain about.

Everything that you asked the trial court to do, the trial court did.

The jury still returned a verdict of guilty.

Mr. Butler: Justice Rehnquist, I think your question points to the very reason why this case is here.

It is precisely because in an appellate situation that the burden is now on the defendant.

Precisely because a defendant now needs a lawyer to act as a sword to overturn that appeal, it is for that very reason that the role of counsel becomes critical in appeal.

It's critical at that point.

He needs help, more help there so that he can come in and try to overturn the decision; otherwise, the judgment of guilt is already in, he has already been sentenced, and there is nothing further that can be done on his behalf.

That is the reason why counsel is critical on appeal.

Unidentified Justice: Yes, but you would agree, I take it, that there are some appeals, I don't know how large a class it is, that even the best lawyer in the world has virtually no chance of getting... of succeeding on; whereas, it's not nearly as easy to evaluate that in the trial situation.

Everybody agrees that abandoning a client or saying I think your defense is frivolous, therefore I won't represent you in trial, it just can't be done.

It isn't done.

It isn't a problem.

Mr. Butler: I understand your concern, Justice Rehnquist.

That's why we are defending the Anders decision, because Anders came down with a compromise, that allowed the attorney on the one hand to try to remain that advocate while, on the other hand, recognizing the ethical duty of the lawyer not to knowingly file a frivolous appeal and pass it off as a meritorious.

Unidentified Justice: Well, Mr. Butler, suppose the state as a matter of course set these appeals for a limited oral argument in each instance, and the lawyer comes in representing the defendant and has indicated to the Court that the lawyer wants to withdraw, and the reason is the lawyer thinks that it's frivolous, do you think the Court can properly ask the lawyer to justify that orally and say, tell me why you think we should let you withdraw?

Tell me why.

Mr. Butler: Not if the lawyer is going to remain an advocate on behalf of the client.

Unidentified Justice: You don't think the Court can properly even ask the lawyer at oral argument to explain?

Mr. Butler: That's correct, Justice O'Connor.

I think to do that, you are no longer acting in the role of advocate.

At that point, the client no longer has an advocate for appeal.

Unidentified Justice: Then you think that the lawyer has no duty to the Court, even when the Court asks the lawyer's help?

Mr. Butler: No.

I do think that the lawyer has a duty to the Court, and that is why the Anders decision has recognized that dilemma and tried to come down with an answer.

It's an answer that makes everyone uneasy.

No appellate lawyer I know likes the Anders decision because it puts you in a very awkward position of arguing a case that you already assessed lacks merit.

You have to make meritorious arguments to the best of your ability in that situation.

Unidentified Justice: Well, don't you recognize that every lawyer has two loyalties, in effect; one to the client and one to the Court?

Isn't that right?

Mr. Butler: Yes, but it's the duty--

Unidentified Justice: Yes, that's right, and it seems to me that the Court can ask the lawyer to tell the Court why the lawyer is taking a certain position.

In this case, the Court has made a universal question, tell me why.

Mr. Butler: --I think in that situation, it can only do so if it redefines the role of either the appeal or counsel in that setting because as long as this Court has taken the position that a client is entitled to the adversarial process in an appeal, and as long as this Court has taken the position that the client is entitled to an advocate, to then say, but in this narrow realm of cases, we're going to give these clients less than that is giving that class of clients less than the advocacy and the appellate representation than other clients are receiving.

So, in effect, the Court is asking us to wear two hats, to brief both sides, to be more of an administrative aid to the Court, and actually to argue as an amicus curiae, and this Court in Anders, in Ellis, in Evitts, and all other decisions discussing this issue, has said counsel cannot do that, counsel cannot act as an amicus curiae.

The irony of the state's position and the Wisconsin Supreme Court decision in this case is that it's far less onerous to argue or to take the position of the dissent in Anders as it is to take the position of the Wisconsin Supreme Court in this case because, at least in that setting, the client still had the appeal because the client can still come forward and make, absence of counsel, he can make his own frivolous arguments and still have a full appeal on the merits.

In this setting, the client does not receive that.

He receives less than an appeal.

He receives less than advocacy, and it is our contention that to adopt this procedure is to provide this class of clients with less than that they're entitled to under Wisconsin law.

Unidentified Justice: Do you think Justice Abrahamson, who dissented below, was very happy with the Anders situation?

Mr. Butler: I'm not sure she was.

I think that was one of the reasons that she called for in her dissent a re-evaluation of the rule.

There are obviously problems to this dilemma that Appellate counsel faced, but I am not aware of any position that protects the rights of the client and the ethical duties of the lawyer better than Anders.

So, it is our position that we would ask that this Court reaffirm Anders and reverse the Wisconsin Supreme Court.

I would ask to reserve the remainder of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Butler.

Mr. Kleinmaier, we'll hear from you now.

ORAL ARGUMENT OF STEPHEN W. KLEINMAIER, ESQ. ON BEHALF OF THE APPELLEE

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

It is ironic that in an attack on the Wisconsin procedure, which requires the defense attorney to explain the reasons for reaching a conclusion an appeal is frivolous, the case is based on the... the argument is based on Anders because in the Anders case, the petitioner himself, one of the remedies he thought would be better than the situation he faced was to have the defense attorney provide an explanation.

As quoted, the source of this is a footnote in Nickols, the Nickols v. Gagnon case.

The brief on behalf of the Petitioner in Anders recommended a procedure in the District of Columbia Court of Appeals because it afforded more adequate protection because counsel must convince the Court that the issues are truly frivolous.

That's what essentially the discussion requirement of the Wisconsin rule is.

The defense attorney who has stated that... set forth the facts and the law then asks... states it's frivolous and seeks to withdraw and all this discussion requirement does it ask him to explain why he reached that conclusion, and in making that requirement on the attorney, I think that is completely consistent with the Anders decision and--

Unidentified Justice: Does the state's procedure here satisfy the Anders requirement that the attorney point to anything in the record that arguably supports his client?

Mr. Kleinmaier: --Yes, sir.

As part of the procedure in Wisconsin also, the attorney cites the facts and the legal authority.

Unidentified Justice: And then he says, but this is frivolous?

Mr. Butler: Yes.

Unidentified Justice: Because these things are... these arguments are so baseless, they're frivolous, is that it?

Mr. Kleinmaier: Yes.

The Wisconsin procedure was the Court's attempt.

The rule is a codification of the Wisconsin case of Cleghorn v. State, which was a Wisconsin Court's attempt to implement the Anders decision.

Unidentified Justice: Well, Justice Harlan in Anders has said that you can't really point... if you can point to anything that's arguable, it just isn't frivolous.

Mr. Kleinmaier: That's a difficult part of implementing the Anders decision, and I think what maybe what's required is that the defense attorney review the case and he finds it's frivolous, and then he or she has to look at it and those things... when you review a record that you find is frivolous, there are certainly going to be things that draw your attention, you check out, because it just doesn't seem... seems out of the ordinary.

In reviewing the record and complying with Anders, the attorney would then point out, I think, the things that... the best arguments that could be found, and--

Unidentified Justice: Anders didn't say on its face that you weren't entitled not only to satisfy what the Court said the attorney had to say, but it didn't say that... it didn't hold that the... that it was impermissible for the lawyer to explain why he thought it was frivolous.

Mr. Kleinmaier: --Right.

It did not make a point of it either way.

In fact, in a footnote, it cited the District of Columbia rule and said there was not approving or disapproving of that rule in the Anders case.

Unidentified Justice: But I suppose the case that's arguably more against this Wisconsin procedure is Ellis.

Mr. Kleinmaier: Well, as I recall--

Unidentified Justice: That's a short precarium, but it doesn't say very much.

Mr. Kleinmaier: --And that's the problem, I think, that it doesn't say very much because in reading the case, we don't know what exactly it was the attorneys did.

There, they gave an evaluation.

I think a distinction between an amicus and an advocate, the advocate obviously is attempting to serve his client and he's going to review the record to find whether there's merit or whether it's frivolous, he has to review all the facts and all the law in the light most favorable to his client and, if, in reviewing it that way, he can find something that he can make a legitimate argument on, then he should pursue the appeal.

Unidentified Justice: Is it not true that in Ellis, both sides agreed the appeal was not frivolous?

That's the difference between that case and these others.

Mr. Kleinmaier: But I think that... the attorneys who had reviewed it had originally reached a conclusion, I think, based on the argument that--

Unidentified Justice: The Solicitor General agreed when the case was before us that it was not a frivolous case.

Mr. Kleinmaier: --But I think a case would be one where I think someone could look at it and say, you're probably going to lose, but it's not frivolous because you have a good argument, but you may still lose it.

I think in serving your client as an advocate, you're going to look at a case and say, you may have a chance... you may lose, but there's a very good argument that we should pursue.

The amicus, I think, would take more... advising the Court, would take the approach, there may be an argument but it's going to lose, therefore don't... you know, the advice is it's a losing argument and stop at that point.

That's, I think, a distinction between the two roles.

Unidentified Justice: Well, surely you can't withdraw under Anders just because you think the odds are against you on that.

Mr. Kleinmaier: That's precisely right.

Unidentified Justice: Then you wouldn't have any criminal appeals if that was the case.

Mr. Kleinmaier: That's precisely right, and that's where I think the attorney acts as an advocate because he doesn't view it that way.

He looks to see whether there's a good argument he can make, even though it might lose.

If he can convince the Court, he may be the one able to do it.

I think the discussion requires in compliance with the policy, an important concern of Anders is there's a statement in the Anders case, the Court, in reviewing the letter submitted by the attorney there, said one of the problems was there was no way to determine whether the attorney had acted as an advocate when he reviewed the record and the law.

This discussion requirement provides that information to the Court.

If the attorney just cites facts, cites some cases, and then jumps to the statement, the case is frivolous, there's no way to tell whether he evaluated the law properly.

When he gives the evaluation, the Court can then determine whether he reviewed the case as an advocate or more in the light of an amicus where he's just saying it might be a losing case.

In addition, when he does this, there's another concern that's been pointed out, that this constitutes briefing the case against the client in violation of Anders.

I don't think it does.

Anders already tells the attorney to cite the facts, cite some authorities, advise the Court if you've concluded the case is frivolous, and ask the Court to withdraw.

I think that the additional step of simply explaining how it jumped from law and authorities to the conclusion that it's frivolous does not constitute briefing the case against the client.

The damage that is done is flagging the case as being frivolous.

Simply to explain how he got to that conclusion is not going to do further damage to the client.

It's simply going to help the Court review the case.

Unidentified Justice: But for what it's worth, it does relieve you as representative of the state of a duty to brief the case.

Mr. Kleinmaier: I think that's right, but I think that's part of the whole process, because if the state is briefing the case, what you have is an appeal.

You have a brief filed for the client, the defendant; a brief filed for the state, and you have the Court deciding it, and that's a full-fledged appeal, whereas this is part of a process that recognizes that frivolous cases should not be brought... followed up on a full appeal, and this is a method of relieving the attorney from representation before the appeal is brought.

Unidentified Justice: Why should they be relieved?

Mr. Kleinmaier: So that the... the defense lawyer?

Because the appeal is frivolous and this Court has also recognized that the courts should not be clogged up with frivolous appeals.

Unidentified Justice: Is it true that the Government does not file briefs in these cases?

Mr. Kleinmaier: Not in Wisconsin.

If the Court... the defense lawyer files the no merit report, if the Court finds merit, then it's sent back to the attorney or a new attorney and the case is briefed and then it follows through regular appeals.

The state would file a brief, of course.

But, no, the state does not file any response to the no merit report.

Unidentified Justice: So, there's no appeal?

Mr. Kleinmaier: That's right.

Unidentified Justice: Why should the Court have to determine whether there is or is not merit after an Anders brief is filed?

Why isn't that your job?

Mr. Kleinmaier: Well, this Court said in Anders that the Court has the responsibility to make the independent determination whether the appeal is frivolous, and--

Unidentified Justice: I still ask, why isn't it your job, though?

It seems to me that the one who benefits is the state attorney.

Mr. Kleinmaier: --Yes, there is some benefit, but, again, I think the purpose of this is to avoid an appeal because the issue is determined as frivolous, and if you have the state responding, that is an appeal.

I mean, that's the way the... the full appeal in Wisconsin, there... in the Court of Appeals, I think in criminal cases, I think in all cases, the Court of Appeals, there are very few oral arguments and the entire appeal constitutes briefs being filed by each side and the Court reaching a decision.

So, another question, I guess, is if the state... if the Attorney General's office is involved on behalf of the state, what kind of brief was filed.

Is this one... what you have is a report from the defense attorney saying the case is frivolous.

Is the state then supposed to respond and say no, it's not frivolous?

The state's position would normally be that that's correct.

Unidentified Justice: May I ask, before this rule... how long has the rule been in its present form?

Mr. Kleinmaier: I think since 1978.

Unidentified Justice: Do you happen to know whether before 1978, when an Anders brief was filed without an explanation of why it was frivolous, did the state then respond?

Mr. Kleinmaier: No, it did not.

Unidentified Justice: So, that hasn't changed.

I mean, in either event, once the counsel for the Appellant has represented to the Court there's a frivolous appeal, the Attorney General's office says this is not a case to spend a lot of time on.

Don't file anything.

Mr. Kleinmaier: I'm not sure if even before this rule, if the briefs... if the no merit reports were even filed with the Attorney General's office.

I think they were filed with the Court.

I'm not sure about that point.

Unidentified Justice: Do you know where we could find or I could find an example of a brief that satisfies the Wisconsin rule?

Because the one that was filed in Mr. McCoy's case here, I guess, he said he purported to comply with Anders but left out the explanation of frivolity.

Mr. Kleinmaier: Right.

I--

Unidentified Justice: And that's the way this original proceeding got started.

Mr. Kleinmaier: --Right.

To get a brief filed in compliance with that rule, the only source that I would think of would be the Clerk's office for the Wisconsin courts.

Unidentified Justice: You say that it's possible to file a letter that satisfies both Anders and the Wisconsin rule, I take it?

Don't you?

I thought that's what you said.

Mr. Kleinmaier: Well, what I meant was I--

Unidentified Justice: All you have to do is add to an Anders brief when you say, I think that the case is frivolous, I want to withdraw, and here's why I think it's frivolous.

Mr. Kleinmaier: --That's right.

We acknowledge that it is in addition to Anders.

I mean, Anders itself does not specifically require it.

Unidentified Justice: But you think it's possible to write a letter that satisfies both Anders and the Wisconsin rule?

Mr. Kleinmaier: Well, I think that if you satisfy the Wisconsin rule, you will... you have satisfied Anders because the Wisconsin rule requires the same thing as Anders, and, in addition, specifically requires the attorney explain.

Unidentified Justice: But there is nothing in this case and there's nothing... not in this record, is there, an example of the letter--

Mr. Kleinmaier: No, it's not a situation where the evidence was introduced that would have precluded.

Unidentified Justice: --So, we really are sort of dealing in an abstraction.

Mr. Kleinmaier: Yes.

In that regard, yes.

The Wisconsin Supreme Court also pointed out one of the rationales for this, and I think it is a fact, and this is also consistent with Anders, that the documents submitted by the no merit report is of assistance to the Court and assistance to the Court was one of the policies or one of the things that the Court in Anders said was to be accomplished by the report, and this requirement to assist the Court by helping it in its independent review it has to undertake, but it will be of assistance to get the analysis from the... the evaluation from the defense attorney also.

I think that concludes the argument.

Chief Justice William H. Rehnquist: Thank you, Mr. Kleinmaier.

Mr. Butler, you have four minutes remaining.

ORAL ARGUMENT OF LOUIS BENNETT BUTLER, JR., ESQ. ON BEHALF OF THE APPELLANT-- REBUTTAL

Mr. Butler: Thank you, Mr. Chief Justice.

Very briefly, one of the arguments advanced by the Assistant Attorney General in this case is to argue that there is no way any so-called no merit letter to determine if an attorney acts as an advocate on behalf of the client.

I would point out to this Court that this case does not present that situation.

This is a case where counsel has identified issues on behalf of the client, so the Court is in a better position to determine whether or not counsel's assessment is accurate based on the identification of those issues.

This is not the same as the situation that was presented in Anders.

In addition, the state has conceded once again here in the argument that a client will not receive a full appeal in an Anders situation.

This is directly contrary to the Wisconsin constitutional provision that provides that all criminal defendants receive an appeal as a matter of right.

Unidentified Justice: Well, certainly the Supreme Court of Wisconsin didn't think it was contrary to the Wisconsin Constitution or they wouldn't have said it was all right.

Mr. Butler: That's correct, but the Wisconsin Supreme Court in making that ruling basically admitted that it was going beyond the requirements of Anders and that it was asking an attorney to do something more than remain as an advocate.

Unidentified Justice: Well, that is undoubtedly a federal constitutional question.

But I don't see how you can rely here on a violation of the Wisconsin Constitution when the Supreme Court of Wisconsin has upheld the thing.

Mr. Butler: No, I'm not arguing that it's strictly a violation of the Wisconsin Constitution, from that standpoint.

Our argument is that by requiring an attorney to act as less than an advocate, which is what the 6th Amendment requires, and by requiring an attorney, once the state provides for an appeal as a matter of right, to provide the client with less than that appeal, then the 14th Amendment and the 6th Amendment of the United States Constitution have been violated.

Unidentified Justice: Mr. Butler, just to help me out on one thing.

You say that in this case, the lawyer did find there were arguable claims that could have been asserted on appeal.

Are those in the record, what those points were?

Mr. Butler: The issues that have been identified are in the record.

The issues that were identified, the attorney, myself, after identifying the issues, gave a preface to those issues indicating that, in my opinion, those issues are wholly frivolous and lack arguable merit.

However, here they are.

Unidentified Justice: But can you tell me where in the record those issues are identified?

Mr. Butler: Those are in the joint appendix.

Unidentified Justice: Are you the one who filed the Anders letter?

Mr. Butler: That's correct.

Unidentified Justice: And said that you couldn't really... and you left out the explanation of frivolity?

Mr. Butler: That's correct.

It's in the joint appendix, page 11.

Unidentified Justice: Thank you very much.

Mr. Butler: If there are no further questions, thank you very much.

Chief Justice William H. Rehnquist: Thank you, Mr. Butler.

The case is submitted.

We'll argument next in Case Number 86-1461, Edward J. DeBartolo Corporation v. Florida Gulf Coast, etcetera.

Attribution:

The OYEZ Project

Featured:

Pennsylvania v. Finley - Oral Argument

Fri, 09 Jan 2009 14:48:29 +0000

Case:

Pennsylvania v. Finley

Media File:

85-2099_19870302-argument.mp3

Related Transcript:

1986_85_2099_argument.xml

Transcript:

ORAL ARGUMENT OF MRS. GAELE M. BARTHOLD, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We will hear arguments next in No. 85-2099, Pennsylvania against Finley.

Mrs. Barthold, you may proceed whenever you're ready.

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

Twenty years ago this Court imposed strict and unique briefing requirements on appointed attorneys seeking to withdraw because they concluded that a client's first appeal was frivolous.

In addition, reviewing courts, charged with hearing such appeals, were charged with the responsibility of conducting an independent review of the record to determine whether the appeal was in fact frivolous.

This issue presented by this case is whether those procedures, those prophylactic rules as articulated by this Court in Anders v. California, should be held applicable on collateral review.

It is our position that they should not be held applicable, and that in the collateral review context, a no merit letter, with notice to the client and an opportunity to proceed pro se, is a constitutionally acceptable alternative.

Now before detailing our reasons in support of that conclusion, I would like rather briefly to address the respondent's claim that this Court is without jurisdiction to decide that issue because the opinion below rests on an adequate and independent state basis.

The opinion is, of course, a Pennsylvania Superior Court opinion; although that is an intermediate appellate court, it is the highest court in which the decision could be had in this case.

The respondent is a state prisoner having been convicted in 1975 of second degree felony murder and related offenses.

She was represented by appointed counsel during his trial, and during her unsuccessful direct appeal to the Pennsylvania Supreme Court.

She next sought collateral review under the State Post Conviction Hearing Act statute, and counsel was not appointed for her because the claims that she raised were finally litigated under Pennsylvania law.

The Pennsylvania Supreme Court, however, held that under its supervisory rules, its rules of criminal procedure, that any defendant is entitled to counsel on a first PCHA petition, or on a subsequent petition raising new issues.

When counsel was appointed for Mrs. Finley, he reviewed the record and concluded that he had no arguable issues to raise.

He, as a result, after consulting with his client, filed a no merit letter with the Post Conviction Hearing Act court, and detailed in that letter the additional claims which Mrs. Finley wanted raised on her behalf.

Based on that letter and his own independent review of the record, the Post Conviction Hearing Act judge dismissed the petition and allowed counsel to withdraw.

Unidentified Justice: Have you any knowledge as to exactly what his review of the record consisted of?

Was he looking at the notes of testimony or what?

Mr. Barthold: We know from his letter that he looked at the notes of testimony.

Unidentified Justice: Is that enough?

Mr. Barthold: Judge Blake indicated in his opinion that he looked at the entire record.

We also know that he consulted with his client.

So I think we are reasonably certain that he did the kind of conscientious review that he should have done, and which this Court, of course, in Strickland, has said that counsel is presumed to do their job and to be competent.

Now when the Pennsylvania Supreme Court reversed because Anders' prophylactic requirements on direct appeal had not been complied with, they said, among other things, since Anders has been applied in similar circumstances, we hold, quote unquote, Anders is applicable here.

And in addition, they noted that the Pennsylvania law with respect to the withdrawal of counsel is derived from... and those were their exact words... Anders v. California.

I think those two statements by the Superior Court make it very clear that there is not an independent state basis for this opinion.

That conclusion is underscored by the fact that there is no clear statement in the opinion saying we used the Federal authority only for purposes of guidance.

And of course in this Court's opinion, Michigan v. Long, you made clear to state courts that if they wanted to make such a statement, they could.

So I think there's no question but that this Court has jurisdiction to consider the very significant issue which is presented here.

Now, I think the starting point for that consideration is twofold.

First, it must be recalled that collateral review is in fact a procedure which is three, if not four, steps removed from the trial court process.

By that point in the proceedings, a defendant has had the opportunity to raise matters in post trial motions.

A defendant has had a direct first appeal.

A defendant, in a majority of jurisdictions, has had the opportunity to either have or to seek discretionary review.

Collateral review is three or four steps removed, and it's a procedure which is intended to identify those rare cases in which there is error that has not been previously identified.

Secondly, it is of course very important that there is no general constitutional right to counsel on collateral review.

Nonetheless, the respondent claims that since counsel was given, although only under a supervisory rule, not under a constitutional basis, and so far as we can determine, there is no state in the country that gives counsel on collateral review based on a state constitutional basis, the respondent contends that since the right to counsel is there, all of the procedures that are given with respect to the right to counsel on a first appeal should be given; in other words, that Anders should be applied even though we are only talking about a supervisory right to counsel.

And I think respondent has really three misconceptions.

First, respondent assumes that an Anders brief is in fact an advocate's brief.

And of course, an Anders brief is not that.

What it is is a device to determine, to monitor, whether counsel has in fact conducted the sort of conscientious and thorough review of the case to be certain that the appeal is in fact... or the petition is in fact... frivolous.

I think counsel does not take account of the fact that when you get to collateral review, you are getting to a procedure that is so far removed that there simply are cases without arguable issues by the time you get to collateral review.

And I think finally the respondent assumes that Anders is the only way of being sure that attorneys do their job.

And I think that is just not so.

Attorneys do their job.

Attorneys are presumed to be competent.

Attorneys have an obligation not to clog the courts with frivolous arguments.

And I think that you need not apply the precise procedures of Anders on collateral review to see that counsel do what they're charged to do, which is to do their job.

Now, the important considerations are: fundamental fairness; meaningful access; and the fact that there are not the invidious discrimination, the fact that arbitrary obstacles not be put in a defendant's way so that--

Unidentified Justice: May I just interrupt for a second?

Is it correct in your view that if Pennsylvania... the Pennsylvania courts decided they would like to apply Anders as a matter of state law, you would agree they would have the power to do that?

Mr. Barthold: --Oh, absolutely, Justice Stevens.

Unidentified Justice: But your view is that when they refer to the Pennsylvania law in this area, it is derived from Anders, that they thought they were compelled by Anders to apply the Anders rule in collateral proceedings?

Mr. Barthold: That is our position.

Unidentified Justice: Has any other state so read Anders, as far as you know?

Mr. Barthold: Yes, the District of Columbia has so read Anders; has applied Anders on collateral review.

Iowa has.

I believe it's Arkansas has, and Texas has.

Illinois has not.

Unidentified Justice: In Iowa, Arkansas, and Texas, do you understand they did it because they thought Anders compelled them to do it?

Mr. Barthold: Yes, I believe so.

Unidentified Justice: I see.

Mr. Barthold: I could be in error, but I believe so.

And we have about three other states that have found Anders inapplicable on collateral review: Illinois, Arizona, and I believe Utah.

And only three circuits have spoken on this point.

The Second and Fifth Circuits have found Anders applicable, and I believe the Seventh Circuit has not.

Unidentified Justice: xxx prohibited from going further than Anders, is it?

Mr. Barthold: Oh, absolutely not, Justice Marshall.

Absolutely not.

So it's our point that--

Unidentified Justice: Mrs. Barthold, while you're interrupted, may I inquire whether the record reflects whether the respondent was sent a copy of the attorney's no merit letter?

Mr. Barthold: --The no merit letter indicates a carbon copy to the respondent.

There has been no evidence to rebut the fact that it was received.

The respondent speaks in terms of, quote unquote, apparent lack of notice.

But that notice has not been rebutted, and there are, I think, a number of arguments to be made, which perhaps I'll reserve, which would demonstrate that even if you want to assume for the sake of argument that the notice was not received, that there was no prejudice to this particular defendant because of the peculiarities of both this case and of Pennsylvania practice.

So if you take the fundamental fairness, the meaningful access, and the no invidious discrimination concepts, and I think apply the balancing test which this Court has articulated in Matthews v. Eldridge, and then applied in Ake v. Oklahoma, what we should look at is the individual interest, which is, here, the accuracy of the criminal proceeding itself; the governmental interest, which would be the cost to the criminal justice system of applying Anders; and finally, what value is to be derived from applying the procedure here sought, Anders, whether it is more likely than not that cases would be identified that would otherwise be lost in the shuffle, so to speak.

And I would submit that when you apply that balancing test, the line should be drawn to say that Anders is not applicable on collateral review.

The chances of it resulting in the identification of cases on collateral review that truly have even arguable issues, I think, is just not likely.

I think that the Court should look at the strains on the criminal justice system, if you conclude that Anders should be applied on collateral review.

Because we are talking about post conviction hearing remedies and petitions which are burgeoning out of all proportions, at least in the states, and I would assume in the federal system too.

We are talking about a complete change in the role of the courts, who are not sitting as courts, but are required to conduct this independent review of records, which puts a great strain on one of our scarcest resources at this time, which is the time of our judges.

Unidentified Justice: Mrs. Barthold, what do you think the Federal Constitution requires, at a minimum, through its due process clause, when the state has granted an avenue for state post conviction review?

Mr. Barthold: I think--

Unidentified Justice: Must the state afford counsel at all to indigent defendants in that situation?

Mr. Barthold: --I think, Justice O'Connor, that they need not afford counsel except in those rare cases where, as a matter of due process, counsel is necessary, which is a statistically insignificant number of cases, I believe, even in the federal system.

I think a no merit letter with... which states that counsel has conducted a meaningful and thorough review, with notice to the client and an opportunity for the client to proceed pro se, so that the client is in substantially the same position as they would have been had counsel not been appointed.

Unidentified Justice: Well, you say the facts of this case are at least enough to meet it.

But at bottom, what must the state provide?

Mr. Barthold: The state must provide access to the courts.

The... if they have collateral review, as do all states, they must allow counsel... or indigent defendants to file their petitions; to not have fees which would keep them out of court; to give them, if they are incarcerated, the benefit of law libraries, under Bounds v. Smith; the use of their jailhouse lawyers, if necessary, under Johnson v. Avery--

Unidentified Justice: And in some cases, it must provide counsel?

Mr. Barthold: --I think that would be a very rare case where it would be an idiosyncratic case where a court with prescreening would discover that there was something that would make it only possible for counsel to handle this matter.

I know the rule in the Federal courts usually is if there is an evidentiary hearing on Federal habeas, they give counsel.

We have at least--

Unidentified Justice: Well, in Pennsylvania, it is the practice to provide counsel uniformly for indigent defendants, I take it, in post... state post conviction review proceedings?

Mr. Barthold: --On any first petition.

Any first post conviction hearing at petition, or any subsequent petition that raises new issues.

Unidentified Justice: And given that as a factor, then what do you think due process requires, above and beyond that?

Mr. Barthold: I think due process requires that the attorney conduct a conscientious and meaningful review of the case and the record.

So that having given that indigent an attorney, they have the benefit of that attorney's best review of the record.

If the attorney then determines that there is nothing even arguable to raise, I submit that it is appropriate for him to be allowed to withdraw from the case.

I mean, we are talking about at least 23 states, as nearly as we can determine, that have very liberal policies with respect to the appointment of counsel far more liberal than the federal system.

And the strain of requiring all 23 of these states to superimpose Anders on top of what they're giving, above and beyond what they must, will, I submit, put a very great strain on the criminal justice system.

Unidentified Justice: Of course, Pennsylvania has control of that in its own hands.

It can simply stop affording counsel.

Mr. Barthold: Yes, and I believe that that is something that might well occur, if not in Pennsylvania, in some of the other 23 states, if it is held by this Court that Anders must be applied on collateral review.

And I would submit, Mr. Chief Justice, that it would be unfortunate if that should happen.

Because these states have determined, for either... for one reason or another to give indigents counsel when it's not necessary for them to do so constitutionally.

And I think we should encourage that, but not superimpose other procedures which will make that burdensome on the states.

Now turning to this defendant's, this respondent's case, she undoubtedly will argue to you that there was no notice, therefore, she must necessarily win the case; and secondly, that her appointed PCHA attorney was ineffective because he did not raise certain arguably meritorious issues.

We have addressed both of those in our reply brief.

With respect to the so-called issues, I have dealt with them in a footnote, and I truly believe that they are in fact frivolous issues.

With respect to the notice matter, even if we want to assume for the sake of argument that Dorothy Finley did not receive the no merit letter... and as I indicated, it shows a carbon copy to her... she still had the benefit, in this particular case, of having the time consuming independent review of the record, which was conducted by the Post Conviction Hearing Act judge.

And he concluded, independently, that there was nothing there.

And finally, under the peculiarities of Pennsylvania practice, she is not barred from filing yet another Post Conviction Hearing Act petition, and raising whatever issues she would want to.

So I would in conclusion, Your Honors, urge you to hold that Anders does not apply on collateral review.

And I would urge you to reverse the Pennsylvania Superior Court decision.

Chief Justice Rehnquist: Thank you, Mrs. Barthold.

We'll now hear from you, Ms. Harper.

ORAL ARGUMENT OF MS. CATHERINE M. HARPER, ESQ., ON BEHALF OF THE RESPONDENT.

Mr. Harper: Thank you, Mr. Chief Justice Rehnquist, and may it please the Court.

First, let me address Ms. Barthold... some of the issues that she had raised, before getting into my argument.

In response to Justice O'Connor's question, in this case my client told me that she never received that letter.

Since we didn't get the hearing that the Superior Court had awarded to us, that's a question of evidence that is still open.

I would argue that she didn't receive the notice that was required under Anders in this case.

Secondly, the district attorney repeatedly characterized collateral review as three or four steps removed from the actual trial.

That's not exactly accurate.

In Pennsylvania, as I would imagine in most jurisdictions, the only issues which can be raised in the higher courts are those which were raised in post trial motions.

Therefore, we're actually one step removed, if you consider that there was... if there was an issue that was not raised in post trial motions, neither the Superior Court nor the Pennsylvania Supreme Court had that issue before it when they were deciding the direct appeal.

Thirdly, I'd like to note that the district attorney points to this case as a case of fundamental fairness.

I agree with that.

I think that what happened--

Unidentified Justice: May I ask you on that question, a matter that was not raised on direct appeal of course wouldn't have gone to the Supreme Court of Pennsylvania.

Does Pennsylvania have a rule in its collateral proceedings that issues which could have been raised on direct appeal but were not raised are barred from collateral review?

Mr. Harper: --I don't believe it's a matter of what could have been raised.

I think the PCHA says that matters that were already litigated to a final determination are barred.

Unidentified Justice: That means it was litigated in the trial court and no--

Mr. Harper: And on appeal.

Unidentified Justice: --And on appeal?

Mr. Harper: The distinction I'm drawing, Justice, is not... is between issues that were raised and which could have been raised.

I believe Pennsylvania--

Unidentified Justice: On appeal, or in the direct proceeding?

I mean, say it was raised in the trial.

For example, there's a motion to suppress evidence, but no appeal was taken from the adverse ruling.

In Pennsylvania practice, could that be raised in collateral proceeding?

Mr. Harper: --Only through the back door.

You'd have to argue, Your Honor, that--

Unidentified Justice: Ineffective assistance of counsel?

Mr. Harper: --Exactly.

You'd have to argue that the counsel on appeal was ineffective for failing to raise that earlier.

And then you could get to it.

Yes, Justice Marshall?

Unidentified Justice: xxx that should have been raised?

Mr. Harper: Well, Justice Marshall, I believe in my brief, at footnote 7, I've listed several issues of arguable merit.

But I don't believe that Anders requires me to show prejudice at this stage.

And I would ask this Court not to put that burden on me.

Unidentified Justice: But the judge went through the record.

Mr. Harper: The PCHA court says that they... yes, the court went through the record.

Unidentified Justice: No, no.

He did go through the record.

Mr. Harper: Yes, Your Honor.

My problem is, Your Honor, that on collateral review, court appointed counsel should look beyond the record; should not only scour the record to determine whether there are issues that should have been raised, but should also consult with the petitioner, and should perhaps even look into investigation beyond that based on whatever the petitioner tells him is there.

Unidentified Justice: If there's nothing there?

Mr. Harper: If there's nothing there, which is not this case, Your Honor, he should follow Anders.

Unidentified Justice: Would you make the same argument if there were 86 eyewitnesses?

Mr. Harper: Your Honor, that's a tough question.

Unidentified Justice: Would you?

Mr. Harper: I guess you're asking me whether there is a case where there are no arguable--

Unidentified Justice: Would you make the same argument, if there were 86 eyewitnesses who testified that this person committed the crime?

Mr. Harper: --I would make the argument that Anders applies.

I would not have the liberty or good grace to be able to say that there are issues.

Unidentified Justice: I see.

Mr. Harper: But I would make the argument that Anders applies, and one should file an Anders brief.

Unidentified Justice: [inaudible]

Mr. Harper: And in this case--

Unidentified Justice: Can you leave me off at 85?

Mr. Harper: --Yes, I will, Your Honor.

The argument of the respondent basically is that since Pennsylvania does provide a post conviction hearing act procedure, and it does provide counsel, and it explicitly provides effective counsel, that when counsel seeks to withdraw from a PCHA petition, then due process considerations come into play.

And the Fourteenth Amendment says you can't arbitrarily deprive a petitioner of counsel without following due process.

When counsel seeks to withdraw, due process means the Anders procedure.

Unidentified Justice: Well, what do you think the constitutional basis of the Anders case is, Ms. Harper?

Mr. Harper: I believe that Anders does rest on the fact that there was a constitutional right to counsel in that case; but I don't think it was necessary for the holding.

I think that this Court obviously handed down that case, knowing that there was a constitutional right to counsel.

But that's not really discussed in the opinion, and I can only assume--

Unidentified Justice: I just read the opinion and I had a hard time figuring out what the basis for the right was.

Mr. Harper: --Well, I didn't see it discussed there explicitly either, Your Honor.

I think the Court simply assumed that it was a right.

Now, the question is, what do we do when the counsel wants to withdraw, assuming the right exists.

Which is the same in this case.

I'm not arguing that there is a constitutional right to an attorney on collateral review, because I don't have to.

There is a very clear Pennsylvania right to a lawyer, and to an effective lawyer.

Conversely, the no merit letter that--

Unidentified Justice: Well, wait, it's just a Pennsylvania right we're talking about.

Why couldn't Pennsylvania... suppose the Pennsylvania statute had been very clear and had said, the only right we're giving here is the right to have a member of the bar, in good standing, look over this case, and in his or her judgment, decide whether there's anything worth arguing.

Suppose that's how it read.

Would there be anything wrong with that?

Would that be unconstitutional?

Mr. Harper: --I guess Pennsylvania could give that limited right, and the question would be whether that limited right is entitled to due process; am I understanding you correct?

Unidentified Justice: xxx there.

I mean, so long as you give it to a lawyer whose in good standing, you've complied with the Pennsylvania statute and treated everyone alike.

Mr. Harper: This would be a different case if that were the Pennsylvania practice.

But this is not... that's not Pennsylvania practice.

Unidentified Justice: Why is this Pennsylvania statute different?

Mr. Harper: First of all, the Pennsylvania statute explicitly calls for counsel.

Secondly, there's a criminal rule for civil... a rule of criminal procedure that calls for counsel, and there's case law that says, the right to counsel means the right to the effective assistance of counsel, not only to make arguments, but also to marshall the facts and go through th record and see what else might be there.

For that reason, even petitioners who raise... who draft their own petitions and name things that have already been litigated on a first PCHA are entitled to counsel, the reasoning being not only that they're entitled to an advocate, but also because an attorney can better explore the issues.

Unidentified Justice: So you're saying although Pennsylvania need not provide for effective assistance of counsel, it could just provide to have some lawyer look over your case, if it does provide for effective assistance of counsel, whether the assistance is in fact effective is a federal constitutional question?

Mr. Harper: That's correct.

I think that you cannot withdraw the effective assistance of counsel without due process.

So I think that that would contemplate that there might be a constitutional issue raised if counsel were very ineffective.

It's not necessary to get to that, though, because Pennsylvania's own collateral review procedure provides for ineffective assistance of counsel questions to be raised right in our Commonwealth courts, and to be taken care of there.

For that reason I'd also take issue with the idea that applying Anders in collateral review cases would clog the courts.

I think, on the contrary, applying Anders in these cases would make sure that the court more readily reached the merits of the case, and if it is frivolous, got rid of it.

Rather than... of have a no merit letter, which I think would encourage the petitioner to go to the federal courts with a habeas petition saying that they weren't dealt with fairly.

Unidentified Justice: Ms. Harper, may I interrupt again?

Because one of your responses to Justice Scalia puzzled me.

Do you think that the holding of the Pennsylvania Supreme Court in this case is based on its view that this procedure in Pennsylvania is mandated by the federal Constitution?

Mr. Harper: No, I do not.

I think that... my argument in the alternative is that it rests on independent and adequate state grounds.

I think that the Pennsylvania Court did not feel compelled to apply Anders, but merely applied Anders because it's a very sane, fair, humane approach to this problem, and because Pennsylvania has had 20 years experience with Anders; because very shortly after this Court handed down Anders, it was applied in Pennsylvania in direct appeal cases.

So the Pennsylvania courts are familiar with it; had 20 years practice with it; and the opinion indicates that Pennsylvania law is derived from Anders, but it doesn't say it's constitutionally compelled by it.

Unidentified Justice: It doesn't say, modelled after; it says derived from.

I think that that's normal language to indicate that you feel that one case requires a legal rule in this case.

Mr. Harper: I respectfully disagree, Justice Scalia.

And I point out that it also relies--

Unidentified Justice: You wouldn't say it's at least ambiguous?

Mr. Harper: --No, I would not.

I think it's very clear.

I perhaps would wish for a better scrivener of the opinion.

But I think it's better clear that "derived from" is different from "is constitutionally compelled by".

I don't think this opinion indicates that it... that the Court felt compelled by the federal courts to do this.

Unidentified Justice: You don't think if I said this rule is derived from Marbury v. Madison, that it couldn't be read to mean that I think Marbury v. Madison requires this rule in the present case?

Maybe not, must, but could.

Mr. Harper: No, Your Honor, I think that this... I think this opinion's clear.

Unidentified Justice: But your point is that they said, this Pennsylvania rule was derived from Marbury v. Madison.

Mr. Harper: This is a Pennsylvania law, is derived from, is what it says.

Thank you.

But it also points to criminal rules of procedure in its opinion--

Unidentified Justice: But, counsel, haven't we said, in Michigan v. Long, that when the court doesn't make that clear, we're going to assume that they mean it's required by federal law, when the opinion cites federal authority and doesn't make it clear.

Mr. Harper: --That is what Michigan... that is what Michigan v. Long says.

Apparently Justice Scalia and I have a disagreement on whether or not it's clear.

I think the opinion is clear that it relies on Pennsylvania law.

I kept trying to say that--

Unidentified Justice: Well, suppose that we disagree with you.

And we have to face up to what we do here.

Mr. Harper: --Well, then, if you disagree with me, it's not necessary to find that this rests on adequate and independent state grounds.

Then I go back to my due process argument.

If a state grants an important right, the state can't willy-nilly take it away without providing due process.

Anders is the measure of due process for withdrawing attorneys.

So it's not necessary to find that this rests on adequate and independent state grounds.

Unidentified Justice: No, Ms. Harper, I didn't see any reference to due process in the Anders opinion.

There's certainly reference to the Sixth Amendment, to equal protection.

But the Anders opinion itself isn't grounded on the view that you can't withdraw an attorney because of due process considerations, is it?

Mr. Harper: It wasn't necessary in Anders, because it rested... arguably rested on a constitutional right.

It wasn't necessary to talk about the Goldberg and Kelly type of cases where the state does grant a right, even if it's not granted constitutionally.

I think there's a clear line of cases with the Griffin/Douglas line of cases that would provide support for that.

And Evitts v. Lucey is very close to this case, and rests on due process grounds.

Although of course I'm also arguing equal protection, because I have an indigent who is, with a court appointed attorney, forced to take whatever the state gives her.

Pennsylvania law gives no right to the indigent to complain about which attorney she gets.

And the indigent has to take whichever attorney it is and can't request them.

I think for equal protection reasons, it would probably be reasonable for the Court to more closely scrutinize court appointed counsel's conduct in this regard, and to make sure that the poor defendant, petitioner, gets the same justice that the wealthier one can afford to get.

So my argument rests both on due process and on equal protection.

The no merit letter, by contrast, does violence to both due process and equal protection.

The district attorney has suggested that there may be other ways to deal with this problem.

I can conceive that there may be other ways.

I don't think the district attorney has suggested anyway that we can deal with it, but there may be other ways.

The no merit letter is not the way to deal with it.

This Court specifically disapproved of the no merit letter in the Anders case.

I see no reason to distinguish between direct appeal and collateral review when talking about the sufficiency of the no merit letter.

It has the terrible handicap that it forces the court appointed counsel to argue against his own client, and it puts the petitioner in the position of having the state give her a lawyer who thereafter briefs the case for the prosecution.

I think the no merit letter is affirmatively bad in that respect, and is not a substitute for Anders.

It may be that there's another state in the union that has come up with a better way to deal with this problem, but the district attorney hasn't suggested one, and the no merit letter is not that case.

As I also stated--

Unidentified Justice: What would you do with another lawyer?

Mr. Harper: --In this case?

Unidentified Justice: Uh-huh.

Mr. Harper: I think what should have been done is apply Anders, so that--

Unidentified Justice: So that... go ahead.

Mr. Harper: --So that the court could get to the merits of the case with the benefit of an advocate's marshalling of the facts and evidence.

And the court would not be compelled to do it on its own.

Unidentified Justice: I see.

Mr. Harper: So I think Anders would be the proper solution here, and that's what the Pennsylvania courts decided was the proper solution.

Unidentified Justice: And what do you think Anders says?

That the lawyer has to file a brief?

Mr. Harper: Yes, I think Anders requires a brief.

Unidentified Justice: And he has to say more than he said in that letter?

Mr. Harper: He has to say not only more than he said in that letter, but he has to avoid making an argument against it.

I think Anders calls for citations to the record and to legal authority.

It doesn't... and I think that it affirmatively disapproves of the idea that you can write out what the petitioner wants raised, and then say, but it's a terrible argument, or it won't fly, or don't pay any attention to this, court.

Because that places in the lawyer the job that belongs to the court.

In the adversary system it's a spirit of give and take--

Unidentified Justice: What would you do--

Mr. Harper: --Pardon?

Unidentified Justice: --What would you do if the client said that my ground for appeal was that I was sentenced on count two before I was sentenced on count one; and that's the only grounds that I have for appeal?

Mr. Harper: And counsel had conducted a careful review?

Unidentified Justice: And I warn you in advance that there's an actual case that that happened.

Mr. Harper: I can conceive of that case.

I guess what--

Unidentified Justice: And what would you do in that case?

Mr. Harper: --I guess what counsel should do in that event is simply set out that she was sentenced on count two before count one; point the court to the appropriate sentencing rules and whatever cases construe them in their fairness; and point to whatever position there is in the record that might support the argument on behalf of the advocate; and let the court decide.

And if it gets thrown out, then that's the way the adversary system works.

Unidentified Justice: Well, what's the difference between that and this letter here, except that it doesn't have all the detail in it?

Mr. Harper: Well, that's a big difference, because... there's a couple of differences.

First of all--

Unidentified Justice: Well, in this case, is it--

Mr. Harper: --I was able to find arguable issues that don't appear in that letter.

Unidentified Justice: --Is it true that her only defense was an alibi?

Mr. Harper: It is true that her defense was an alibi.

But--

Unidentified Justice: That's what you say.

Mr. Harper: --It is true... no, it is true that her defense was an alibi.

But you have to remember that the most important witness at her trial was a prosecution witness who received two years' probation for his part in this.

And after the trial, Dorothy Finley asked to speak to the court.

After she was convicted... it was a bench trial... she asked to speak to the court, and the court permits her, and she begins to tell why the prosecution witness would have other reasons to be biased against her, and would be unfairly disposed, for his own reasons, to give testimony that would benefit the prosecution.

None of that's in this case, because that wasn't raised by the PCHA counsel.

Unidentified Justice: But you did raise that her defense was an alibi.

You put that in footnote 7.

Mr. Harper: That is correct.

That is a portion--

Unidentified Justice: And we are bound by that, aren't we?

Mr. Harper: --That is the course chosen.

I wouldn't take footnote 7 to be a statement of all the reasons that could be raised in this case.

You have to remember, first of all, that when I got this case, I was in the Superior Court.

I had no right to raise evidentiary issues.

I merely raised them for illustrative purposes, and the court let me do that.

You also have to remember that I only had the record that was available in the court... which by the way didn't include the suppression motions and other pieces of paper that I think counsel should look at before they make a determination on collateral review.

So I would not... I would ask this Court not to take footnote 7 as anything other than illustrative of the issues that could have been raised and should have been raised by counsel.

I'd like to state in summary, then, that where the state grants a valuable right to its citizens, in this case, the right to the effective assistance of counsel in collateral review, that right cannot be taken away without giving the affected citizens due process.

The Anders procedure is the due process that is required in this case.

Because this is a case involving a court appointment, I would also ask Your Honors to consider that there are equal protection considerations as well; and that is because she cannot choose her own attorney, she has to take what the state gives her.

And also, because the court wants to ensure that the indigent prisoners get the same equal protection and due process as wealthier individuals.

I'd also ask the Court to consider that the alternative in this case... and what we are really talking about here is a procedure, the no merit letter... is not sufficient under due process or equal protection guidelines for the reasons ably stated in Anders.

And in the alternative, I'd argue that this decision of the Superior Court rests on adequate and independent state grounds, and that this Court can decline to accept jurisdiction and let the Pennsylvania's court choice to deal with this difficult problem stand.

If there are no further questions, thank you.

Chief Justice Rehnquist: Thank you, Ms. Harper.

Ms. Barthold, you have 12 minutes remaining.

Mr. Barthold: If there are no questions, I see no reason to use my 12 minutes.

Chief Justice Rehnquist: Thank you, Ms. Barthold.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Bearden v. Georgia - Oral Argument

Wed, 18 Feb 2009 07:11:08 +0000

Case:

Bearden v. Georgia

Media File:

81-6633_19830111-argument.mp3

Related Transcript:

81-6633_19830111-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF JAMES H. LOHR, ESQ., APPOINTED BY THIS COURT, PRO HAC VICE

Chief Justice Burger: We will hear arguments next in Bearden against Georgia.

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

Mr. Lohr: Mr. Chief Justice, and may it please the Court, this case involves the revocation of an indigent's probation for his failure to pay a fine and restitution which was imposed as a condition of his probation.

Mr. Bearden has received a three-year probated sentence.

The condition was that he pay $750 as fine and restitution.

Two hundred dollars had to be paid almost immediately.

This was paid by his parents.

Within the next four months, he had to come up with and pay the balance, which is $550.

Approximately one month after this sentence was imposed, he was laid off.

He became unemployed.

From that period until the time of the revocation hearing, he did not gain employment, although the record shows that he tried to gain employment.

He was without funds.

He was without property.

I think he was what we might call functionally indigent.

The trial court held the revocation hearing and revoked it on two grounds, as I understand what the trial court did.

It revoked it on his failure to pay the fine and restitution.

Secondly, it revoked it on his failure to report to his probation officer regularly.

That, of course, was not a ground stated in the petition to revoke.

In fact, I don't believe there was any evidence to support that finding, and the Georgia Court of Appeals held that even if the trial court did rely upon the failure to revoke the probation... or revoke the probation for his failure to report, that the revocation rested upon an alternate independent ground which was sufficient, and that was that he failed to pay his fine and restitution, which was a condition of his probation.

The Georgia Supreme Court denied a petition to review this discretionary appeal, and there are two other important factors I should mention in this case.

First of all, the petitioner was serving his probation under what we call the Georgia First Offenders Act.

Under that Act, when a person is convicted or enters a plea of guilty, the court suspends further proceedings and places him on probation.

If he successfully completes his term of probation, he is discharged without an adjudication of guilt, no criminal record, no criminal purpose.

On the other hand, if his probation is revoked, the trial court then at the revocation hearing enter an adjudication of guilt and sentence the defendant to any sentence that it could have originally imposed.

In this case, it would have been 20 years for the burglary and ten years for the theft by receiving.

The only condition is that he must be given credit for the time that he was on probation.

Now, in this case, when the trial court originally revoked his probation, it sentenced him to five years to serve.

It was a three-year term of probation.

It sentenced him to five years to serve.

On a motion on behalf of the defendant, this was reduced to the remaining balance of his probation, in line with the Georgia case of Stevens versus State.

Unidentified Justice: Mr. Lohr, do you think that a sentencing judge can at an original sentencing proceeding consider the fact that the defendant is indigent and couldn't pay a fine, and therefore decide to sentence the person to jail?

Would that be valid?

Mr. Lohr: In lieu of a fine?

Unidentified Justice: The sentencing judge, who has options available to him at sentencing, the possibility of a jail term, the possibility of a fine, the possibility of probation on condition that a fine is paid, can the sentencing judge decide that because the person in fact is unemployed and indigent, and therefore unlikely that he could pay a fine, and would be a poor risk on probation, should be sentenced to jail?

Is that all right?

Mr. Lohr: I think, if I might answer that question, if a high level of scrutiny is to be applied to this type of state action, I don't think it is okay.

If a low level is, then I think it is.

If I might explain, as I understand your hypothetical, the person could have been placed on probation except for the fact that he couldn't pay the fine.

That indicates to me that there is no additional threat to society.

There is nothing being achieved by protecting society simply because he was poor.

As far as rehabilitation goes, I don't think the state is achieving anything by putting him in jail for rehabilitation under these circumstances.

Now, there is the element of deterrence, let's say, to other individuals.

For example, other indigents may see this indigent... in their mind he may be getting off scot free.

In other words, he is not... doesn't have to pay a fine because he is too poor, and he doesn't have to go to jail.

There are other ways that the state can enforce or achieve the policy of deterrence other than the payment of a fine or jail.

Those aren't the only two options.

So, if we look at strict scrutiny, so to speak, it is not necessary to put him in jail.

There are other less intrusive ways to accomplish that deterrence.

If we are looking at just a rational basis, then I think the judge can do it, so long as the fine is... or the jail term is in some way commensurate with the fine.

Now, the second point I just want to mention, that I am sure you are aware of, that the fact that his probation was revoked because he was too poor to pay the fine resulted in the adjudication of guilt which has several other consequences, among which he loses his right to vote, he loses his right to hold public office, and certain other rights that citizens who are not convicted of a felony of moral turpitude hold.

First of all, I would like to consider the cases of Williams versus Illinois and Tate versus Short.

This Court in the case of Williams versus Illinois held that it was unconstitutional to incarcerate the defendant beyond the limits of incarceration which by statute apparently the state determined as necessary to achieve the penalogical interests of the state.

Now, in this present case, apparently the trial judge made a determination that this individual did not need to go to jail in order to satisfy the penalogical interests of the state.

It wasn't a legislative determination.

It was apparently done by the trial judge.

Unidentified Justice: The trial judge, I take it, thought that what you referred to as perhaps inartfully, at least in my opinion, less intrusive methods might be used to achieve society's goal without having to send him to jail at that stage.

Mr. Lohr: That's correct.

The probation and the other... and the conditions that were imposed upon his probation would satisfy the penalogical interests of the state.

Unidentified Justice: What were the conditions that were imposed?

Mr. Lohr: They were the standard... in addition to the fine and restitution, they were the standard conditions, not to associate with--

Unidentified Justice: Yes, but fine and restitution were the two non-boilerplate conditions.

Mr. Lohr: --That's correct.

Those were the only two non-boilerplate conditions.

Unidentified Justice: Did the defendant ever ask to have that term of condition modified... term of probation modified or extended or reduced or--

Mr. Lohr: No, he never made that request.

Unidentified Justice: --He had that right, I suppose, under state law.

Mr. Lohr: Yes, the trial judge retains the jurisdiction over probation cases beyond that term of court for the term of probation, and I think at any time the trial court could upon a reasonable showing modify the conditions of probation.

Unidentified Justice: Do you know if... do you know if the obligation, the condition about restitution and paying a fine, did they survive the revocation of probation?

Mr. Lohr: I have not--

Unidentified Justice: Or do you know?

Mr. Lohr: --I have not been able to find any cases right on point on this--

Unidentified Justice: Well, I know, but in this particular case, if he went to jail, was he free from the conditions of paying the fine?

Mr. Lohr: --I don't believe he is.

I believe he is going to be obligated to pay the fine and restitution until, even after the jail term, you know, until he pays it.

It probably will never be collected, in fact.

Unidentified Justice: At the time restitution was requested of him, did he make any showing or statement to the judge that he was indigent and therefore couldn't make restitution?

Mr. Lohr: At... We are at a disadvantage here.

Apparently there was no transcript taken at the time the plea was entered and he was placed on probation.

We have searched for it, and we can't find it.

I was not present at that time.

Unidentified Justice: So we have to presume that everything that was done to support the constitutionality of the order below was done, since we don't know?

Mr. Lohr: Well, the only thing we have in the record is that in his testimony on his probation revocation hearing, he did testify that he agreed to pay the fine at the time the condition of probation was entered, and I am assuming that he agreed to it.

He had a job at that time, and felt like he could pay it.

Unidentified Justice: Well, what did he steal, or what was the theft?

Mr. Lohr: The burglary, and I think the theft by receipt, were one and the... arose out of the same incident, but it was breaking into a mobile home and apparently taking some items out of the mobile home.

Unidentified Justice: Was there any finding of the value of the items?

Mr. Lohr: Again, I really don't know.

There is no record of what happened back when he was placed on probation.

So I don't know what--

Unidentified Justice: Any indication of what he did with those items?

I mean, at one point I presume he could have made restitution if he had simply still had the property by just giving the property back.

Mr. Lohr: --All I can... All I can represent to this Court is what the District Attorney has led me to believe in talking to him, the one that was apparently there at the time.

Unidentified Justice: Your argument really then is quite abstract, isn't it, and quite apart from the particulars of this case, where your client was convicted of theft, presumably at one time had the ability to make restitution, accepted a sentence imposing restitution, and now simply wants to shed the whole thing.

Mr. Lohr: Well, we are assuming some things here, and I don't know that in fact he had the ability to make restitution out of the goods that were stolen.

Unidentified Justice: Well, but if you don't know, if the record is silent, isn't there a presumption in a case such as this that the findings are in support of constitutionality?

Doesn't the record show that as a matter of fact the only way he paid the original $200 was to pay it from his mother?

Mr. Lohr: That's true.

Unidentified Justice: And that he didn't even have it?

Mr. Lohr: At the time--

Unidentified Justice: Doesn't the record show that?

Mr. Lohr: --Yes, it does.

He either borrowed it or his mother gave it to him to pay.

That's correct.

Unidentified Justice: The record shows that.

Mr. Lohr: That's correct.

And he had a job at the time, and about a month later became laid off.

Unidentified Justice: Doesn't the record also show the amount of the restitution, the $200 on one charge and $50 on the other?

Mr. Lohr: That was the restitution.

That's correct.

Unidentified Justice: So isn't it fair to assume that's the amount he had to restore?

I mean, that must be the value of what he stole?

Mr. Lohr: It would seem reasonable to assume that, yes.

Unidentified Justice: It is also true, isn't it, that your client signed the order of probation in which in effect he agreed that in violation of the terms of probation the court may enter an adjudication of guilt and proceed as provided by law?

Mr. Lohr: Yes, he signed that.

That's correct.

Unidentified Justice: Both counsel and petitioner signed it.

Mr. Lohr: Yes, both counsel that represented him at that time.

That's correct.

In the case of Tate against Short, again, this Court, in citing from a concurring opinion in Morris versus Schoonfield, stated that it doesn't matter if the fine is accompanied by a jail term or not, and again, in this case, it was not... it was not accompanied by a jail term, but only by a probationary period of time.

If a jail term of an indigent extends beyond... excuse me.

Or whether or not the jail term extends beyond the statutory maximum.

And of course it didn't in this case.

It still held there that it is in violation of the equal protection clause in order just to convert a jail term... or, excuse me, a fine into a jail term.

And it appears that that is what we... what happened here, and it wasn't any attempt by the trial court to substitute a jail term equivalent to the $550 he owed.

Unidentified Justice: Is there some table from which the trial court could have found an equivalent term?

Mr. Lohr: That poses a real difficult problem with that... with that approach, simply because how do you know how much one day is worth?

Unidentified Justice: Well, I thought you were arguing that... the intimation seemed to be that the trial judge should have made the effort.

I agree with you.

I think it would be quite difficult.

Then why do you argue that he should have made the effort?

Mr. Lohr: The only reason I guess I made that point is, it has been suggested... I believe it was in Justice White's opinion in Wood against Georgia that there should be some... when a person's probation is revoked for his failure to pay a fine, that there should be some relationship between the amount of jail time and the amount of the fine, and I guess the reason for that is is that apparently the state needs some... needs to satisfy its interest in deterrence, satisfy its interest in retribution.

Unidentified Justice: Well, do you think the suggestion is that perhaps the judge should consider the nature of the offense, and decide considering the offense and the nature of the defendant what punishment is appropriate, whether it is jail, or a fine, or in either case how much or how long it should be?

Mr. Lohr: Well, I think the Judge has wide discretion at the time of sentencing, at the time he places a person on probation or puts him in jail or imposes a fine.

I think he has wide discretion.

I think he needs to maintain that.

Unidentified Justice: Do you think that a judge who is considering whether to continue someone on probation should reasonably consider whether the person has a job, and if not, the extent to which he is a risk to society, being a convicted felon and not having employment?

Is that appropriate?

Mr. Lohr: I don't think it's appropriate to consider that a person who does not have a job becomes a greater risk to society than a person under the exact same circumstances that does have a job, or a person that is poor is a greater risk to society than an individual who is rich under the exact same circumstances.

So, if we are looking at the trial judge's ability just to look at whether or not the person is rich or poor, I don't think they should consider that in making that initial determination.

Unidentified Justice: Do you think... historically in the books there were a lot of provisions that prescribed the punishment for a certain criminal act, 30 days or $30.

Now, here is a legislative judgment.

Suppose a legislature said, if you steal something that is worth $200, you either pay a $100 fine or go to jail for five days.

Those are equivalent.

And we just think that if you can't pay the $100, you have got to do something, so we are going to send you to jail for five days.

Mr. Lohr: Again, I am going to have to answer that, if you apply the strict scrutiny approach, I think there are other ways that the state can accomplish its interests.

Unidentified Justice: Well, that is just shorthand for saying that you think that the statute is bad.

Mr. Lohr: That's correct.

That's correct.

But you see, there would be other ways then that the state could accomplish its same deterrent interest.

Unidentified Justice: Well, the legislature didn't think so.

Mr. Lohr: It seems to me that if a person is unable to pay... Now, for a person that could pay, it may be a legitimate choice, but for a person that is unable to pay, he really has no choice at all.

It is just, go to jail, for him.

It seems to me that there should be some other type of provision made, that the state could, with some sort of a work release program, have him do public service work.

There are all sorts of options open to the state.

And just because it is not paid immediately does not mean that it may not be paid down the road.

So, for a person who is indigent, I don't believe that that is a valid option.

Unidentified Justice: But wouldn't that depend a good deal on the crime committed?

You have an individual that plead guilty to burglary.

I can think of all sorts of crimes that would not suggest that the individual would be a very good risk.

So if you have no alternative but to him on work relief or doing public service, would that not be a bit dangerous for the public generally?

Mr. Lohr: Well, I think the determination of whether or not a person is a risk to society, is going to pose a threat to the other individuals around him, needs to be made independently of whether or not this person is rich or poor.

Unidentified Justice: Right.

Right.

Mr. Lohr: Now, I agree that in a case of burglary, it would seem... if you compared it to a traffic violation--

Unidentified Justice: Surely.

Mr. Lohr: --there is a greater probability that the court is going to find that he needs to be incarcerated to protect society, but apparently that is not the situation in this case.

Unidentified Justice: Have you considered that one of the consequences, if you prevail, is that judges in the courts dealing with these... matters of this kind are going to have a tendency, or at least they are going to be encouraged to simply impose... have several alternatives: impose a fine, saying, if you pay this fine in cash or post a bond within 48 hours, then the sentence will be suspended; otherwise, imprisonment... that that may be the tendency, or the judges will, as a second alternative, simply forget about restitution and all, which is beginning to be rather illusory, and simply convict and send all these people to prison?

Mr. Lohr: I have considered that.

For an indigent, it really doesn't make a lot of difference.

He can't pay the fine, and if it is a condition of being free, he is not free.

By definition, he can't pay it, so he is going to go to jail, regardless of what the judges do.

Unidentified Justice: Well, he may be able to get somebody to put up a bond, if they can't lend him the money, to put up a bond to see that it is paid.

Here there was no security for the balance of this fine, was there?

Mr. Lohr: No, there was no security.

Unidentified Justice: There was just a promise to pay.

Mr. Lohr: Right.

It would have an effect, I think, possibly on the trial court's decisions on close cases.

For example, in this case, where a person is employed and it looks like he might become unemployed, the court may say, well, I am not going to fool with a fine.

Let me just impose a jail term.

That may be the result.

I should--

Unidentified Justice: Well, didn't one of us say exactly that in Tate against Short, in the concurring opinion?

Mr. Lohr: --I believe so, and I believe, Justice Blackmun, you did not entirely disapprove of that.

Unidentified Justice: As a matter of fact, it has been said in probably half a dozen cases, at least, that this trend will probably lead to that kind of a result.

Mr. Lohr: It may very well do that.

Just because... if it is in fact in violation of the Constitution.

I don't think that we necessarily can look at the results to determine whether or not it is in violation of the Constitution.

Unidentified Justice: Mr. Lohr, do you think that the judge in revoking probation can consider whether the defendant has made a bona fide effort to be employed, and therefore earn the money to pay the fine, in determining whether to revoke probation?

Mr. Lohr: I think that if a person wilfully fails to pay the fine, or squanders his resources--

Unidentified Justice: That is not my question to you.

Mr. Lohr: --Whether or not he made a bona fide effort?

Unidentified Justice: Right, to be employed, and to get out there and hustle and earn the money to pay the fine, and the judge feels maybe that wasn't done.

Is that grounds for revocation of the probation?

Mr. Lohr: I don't believe it is.

I don't believe it is.

If the condition of probation that an indigent--

Unidentified Justice: So somebody can just sit around and not make a bona fide effort to get a job and pay the fine that has been ordered, that he has agreed to pay when the probation was originally imposed.

Is that right?

Mr. Lohr: --I think that is where my argument would lead me, yes.

Unidentified Justice: He can sit around and not only not pay the fine, but not make restitution of the value of the property that he has stolen.

Mr. Lohr, in this case--

--Would you please answer my question?

I am helping him.

0 [Generallaughter.]

Go ahead, answer the question, counsel.

Mr. Lohr: I... Could you repeat that, please?

Unidentified Justice: He can sit around and not only not pay the fine, but not make restitution of the value of the property that he has stolen.

Mr. Lohr: Well, it seems to... yes, I think so.

Restitution I don't think carries any greater state interest than does the payment of the fine, and of course that is not the facts that we have in this case, but on the other hand, you just... it seems to me that if we leave the trial courts with the discretion to determine whether or not a person has made a bona fide effort in order to obtain employment and to obtain funds, that that is just... it is just opening the door.

I just don't see how a trial court is going to make that determination.

Unidentified Justice: Well, there is a little of that element in this case, isn't there, where the trial judge on revoking probation commented that jobs were available for anyone who would come to the courthouse any day during the week, and that this defendant didn't do that, and some indication here that that is what this judge thought that happened?

Mr. Lohr: Yes, Judge Loggins did mention that.

Unidentified Justice: Right.

Mr. Lohr: And he also mentioned that he recognized that there were times when people cannot find a job, even though they try.

Unidentified Justice: Right.

Assuming I may ask a question, does the record show specifically the places he went to looking for work, and name the places, and that he also went to the state labor department?

Does the record show that?

Mr. Lohr: That's correct.

That's in his testimony.

There is no doubt--

Unidentified Justice: Did you forget it?

Mr. Lohr: --No, I didn't forget that.

Unidentified Justice: Thank you.

0 [Generallaughter.]

Counsel, wouldn't your client be better off if Georgia law permitted him to make a showing of a bona fide effort to raise funds as a defense to the probation?

As I understand it now, even with the bona fide effort, even if the facts were 1,000 percent favorable, a total impossibility, he can still be sentenced to jail for, what is it, five years in this case, because he couldn't raise $500.

Mr. Lohr: That's correct, and in fact, if there was a record showing that the provisions in Stevens versus State had been complied with, technically, he could have been sentenced, I suppose, for 20 years with ten years concurrent.

Unidentified Justice: In this sentence, if I remember the record correctly, it was imposed not by the original sentencing judge, but by the judge at the time of the revocation.

The original sentencing judge only sentenced him to one year, I think.

Mr. Lohr: The original sentencing judge was three years' probation on one count and one year on the other.

Unidentified Justice: I see.

Mr. Lohr: That's correct.

Unidentified Justice: But the five years was at the time of the revocation.

Mr. Lohr: By a different judge, and at the probation revocation hearing there was no attempt to determine at that time whether or not his status with respect to his threat to society, with respect to the possibility of rehabilitation, with respect to these other state interests, these weren't even--

Unidentified Justice: What was the ultimate sentence to jail?

First five years.

Then he lowered it to three with the credit.

So what was the time he was going to spend in jail?

Mr. Lohr: --He would have had to serve approximately two and a half years in jail, but the Department of Corrections would have given him credit for good days, and so forth.

Unidentified Justice: Yes.

Mr. Lohr, do you have any criticism of the Georgia statute, or merely of the way it was applied in this case?

Mr. Lohr: Merely of the way it was applied.

Unidentified Justice: The statute is very generous on its face, isn't it?

Mr. Lohr: I believe it is.

Yes, Your Honor.

If I may, I would like to reserve my remaining time.

Chief Justice Burger: Mr. Weaver?

ORAL ARGUMENT OF GEORGE M. WEAVER, ESQ.,

Mr. Weaver: Mr. Chief Justice, may it please the Court, in this case, the petitioner raises an equal protection challenge to the revocation of his probation.

At stake is the broad sentencing discretion that this Court has often recognized to be vested in trial courts.

I would like to say at the outset that the equal protection issue here is not the typical equal protection question this Court faces.

Most equal protection issues involve broad, sweeping legislative action that is at least to some degree over-inclusive.

Here we have a single sentencing decision by a single trial court, highly individualized, a revocation of probation which was an act of discretion by a trial court.

That is one reason why the respondent submits that the Court should employ the reasonable basis test of equal protection review.

Another is that the conditions this Court has specified in the past to the application of higher scrutiny are simply not met in this case.

Strict scrutiny, we feel, would be inappropriate because there is no suspect criterion that is the basis for the state action here.

Moreover, no fundamental right is burdened for equal protection purposes.

A person on probation has no right, fundamental or otherwise, to probation.

Moreover, his fundamental rights may even be limited by his probationary status.

As to intermediate review, this Court has reserved that level for the review of state classifications which are based on what some have called semi-suspect criteria, usually immutable characteristics, as gender or illegitimacy, but in this case there is no such characteristic that is the basis for the state action.

Another reason why the respondent--

Unidentified Justice: Well, I suppose the defendant who is on probation has some kind of a liberty interest in remaining out of jail, does he not?

Mr. Weaver: --Yes, Your Honor, I think he has a conditional liberty interest, and that liberty can only be taken away if the requirements of the due process clause are met.

This Court established what those are for probation revocation in the case of Gagnon versus Scarpelli.

In this case, the requirements of the due process clause were clearly met.

There has been no contention, as I understand it, from the petitioner.

Unidentified Justice: Well, can he have his probation revoked solely because of circumstances beyond his control?

For example, he is told as a condition of probation not to leave the state, and he is kidnapped, and is taken forcibly across the border.

Can probation be revoked for that reason?

Mr. Weaver: I would say no, in that situation.

Unidentified Justice: Well, all right.

He loses his job, and it is no fault of his own.

He was hired as a replacement strike worker--

0 [Generallaughter.]

--as a permanent employee and then fired.

Now, can he be... can probation be revoked because of that?

Mr. Weaver: Well, Your Honor, in your hypothetical, I would say the revocation in those circumstances would be arbitrary, and therefore would violate the equal protection clause.

Unidentified Justice: All right.

What saves it here, where he says, I lost my job, and I have been trying to get work, and I can't, so I can't pay the fine.

Mr. Weaver: Justice O'Connor, I think the trial court could rationally have concluded that the petitioner's loss of his job and his failure to pay the fine, his inability to pay the fine from the record increased or made him a less acceptable probation risk.

It seems to me that that follows from the ability of a trial court to consider financial resources and employment situation in the original sentencing decision.

Unidentified Justice: Do you mean that a person who is poor is a bigger risk than a person who has money?

Mr. Weaver: No, sir.

I am saying that a person--

Unidentified Justice: I thought you just said that.

Mr. Weaver: --Well, I think a trial court could reasonably use--

Unidentified Justice: A trial court could say that?

Mr. Weaver: --A trial court could reasonably use a person's financial resources and their employment history as an index to their likely probation success.

Unidentified Justice: No, to the likelihood that they would commit a crime, is what you were talking about.

Mr. Weaver: Likelihood that they would commit a crime and probation success.

Unidentified Justice: So a poor person is more likely to commit a crime than a person with money?

And you are speaking as a state Attorney General?

Mr. Weaver: Your Honor, I am saying it is reasonable to use... Let me put it this way.

When a trial court is faced with sentencing a defendant, in this case deciding whether to put a defendant on probation or not, the trial court must make a prediction.

Under Georgia law, he must decide under the statute whether it is likely that the defendant will again engage in a course of criminal conduct.

Now, what is to help him make that prediction?

I am saying that the financial resources available to the defendant and his employment history are two indices.

They are imperfect, Your Honor.

I admit that.

But they can rationally, reasonably be used to predict the future behavior of the defendant.

That is the whole reason why they are considered in the first place.

Now, that is the primary position of the respondent, that financial resources and employment background are a reasonable indication of likely probation success of a defendant.

Let me illustrate my argument by making a comparison to two other cases decided by this Court.

In Vance versus Bradley and Massachusetts Board of Retirement versus Mergia, the Court considered mandatory retirement schemes.

The Court held that the mandatory retirement schemes were reasonable and therefore not unconstitutional.

This Court said that, even though there were employees under both of those schemes who could still perform the tasks.

In other words, it was reasonable for the Congress in one case and the Massachusetts legislature in the other to use age as an index to the physical capabilities of workers, even though there are exceptions.

Similarly, in the case before the Court, the respondent submits that it is reasonable for a trial court to use financial condition and employment history as an index to the likely probation success of the defendant.

That is the whole purpose for considering those elements, not only on revocation, but also in the original sentencing decision.

The respondent also contends to the Court that--

Unidentified Justice: Mr. Attorney General, would that be permissible as a matter of constitutional law if, say, his probation period lasted for three years, and he paid the $550 within the deadline, he used his last dime to pay the $550, and periodically his condition is reviewed, and the judge finds out he is totally broke, he has no money at all, he is indigent.

Could he then say, well, I think I am going to revoke your probation because I don't think you are a good risk any more?

Mr. Weaver: --No, sir.

There would have to be the violation of a condition of probation.

And I think the violation should have some--

Unidentified Justice: What if one of the conditions is that he must appear to the judge periodically to be a good probation risk?

Say the state statute permitted a re-examination from time to time of the condition of the probationer.

Would that be constitutional?

Mr. Weaver: --If he violated a condition of probation, and the trial court--

Unidentified Justice: Well, one of the conditions is, he satisfy the judge that he is still not a risk to society and that he is just generally still a good risk, and you leave that to the wide discretion of the sentencing judge, who always has very wide discretion in these matters.

Why couldn't you let the judge just re-examine it every six months, and he just decides, well, I am not sure about you any more, you don't have any money.

Mr. Weaver: --Your Honor, if that is a valid condition of probation, I would agree with you.

Unidentified Justice: Well, that is my question.

Is it a valid condition?

Mr. Weaver: I'm not sure that it is.

I think that conditions should be sufficiently specific so that it can be understood, and it has some connection with the probation worthiness, to put it in the best way I can.

Unidentified Justice: Well, but I think your argument is that indigency is related to probation worthiness.

I think that's what your argument comes down to.

Mr. Weaver: I am saying that a person's financial resources--

Unidentified Justice: Are related to his probation worthiness.

Mr. Weaver: --Yes, sir.

Unidentified Justice: If that is true, I would not see any constitutional objection to a statute such as I hypothesize.

Mr. Weaver: If that kind of condition would be legitimate, then I think probation probably could be revoked.

Unidentified Justice: I think that is what the issue in the case is.

Mr. Weaver: Yes, sir.

Now--

Unidentified Justice: Suppose the original case comes up, and the judge says, there are two people involved here.

One has $500, and a job that pays $10,000 a year, and the other one is broke, so I find one guilty and I release the other one.

He couldn't do that, could he?

Could he?

Mr. Weaver: --I'm not sure, Your Honor.

I think a trial court can consider the financial condition of the defendant in sentencing him, but if there is that kind of wide disparity, I think you might even have an Eighth Amendment problem, a cruel and unusual punishment situation, where you have that kind of disproportionality between sentences for people who have committed the same crime.

Unidentified Justice: Wouldn't some of the consideration you are talking about depend on the crime with which the person was charged?

I mean, a trial judge could reasonably suppose, I suppose, that a person who was indigent would be more likely to commit petty theft than someone who had $100,000 in the bank, but I suppose he could also suppose that the one with the $100,000 in the bank might be more likely to kite a large check than the person who was indigent.

Both of them are crimes.

Mr. Weaver: Yes, sir.

I think a trial court could reasonably come to those conclusions.

Now, let me make it clear.

I am not saying that the conclusion that this defendant was a greater probation risk is the only conclusion the trial court could have come to, but under the rationality standard, it is not required that there be no reasons to the contrary.

The key words that this Court has used to describe state actions which fail to comply with the rationality standard are "arbitrary" and "irrational".

And the respondent submits that in this--

Unidentified Justice: Is that a due process kind of a concern rather than equal protection?

Are we concerned with fundamental fairness here in talking about arbitrariness of the decision?

Mr. Weaver: --Well, the due process clause is broad enough, I think, to include this issue, but as I understand the prior decisions of the Court, the equal protection clause has been used to decide whether state action is arbitrary or irrational.

In the line of cases--

Unidentified Justice: It is not altogether clear, is it?

Mr. Weaver: --Your Honor?

Unidentified Justice: It is not altogether clear what the basis of some of these prior decisions--

Mr. Weaver: No, sir.

No, Your Honor.

0 [Generallaughter.]

In the case of... Pardon me.

0 [Generallaughter.]

In the case of Ross versus Moffitt, this Court summarized some previous decisions of the Court that dealt with state actions which had erected insurmountable barriers to indigents seeking a review of their criminal convictions, and in Ross versus Moffitt, which Justice Rehnquist wrote, the Court said that although those prior cases could be fit... they could be fitted under either the due process or the equal protection clause, that the Court considered them to be best explained under the equal protection clause.

Now, I would like to address myself to this issue.

My opponent has mentioned Williams versus Illinois and Tate versus Short.

In those cases, this Court decided that the additional punishment imposed upon indigents solely because of their indigency served no legitimate state interest.

Unidentified Justice: --And therefore violated what?

Mr. Weaver: Well, the equal protection clause, I would say.

The Court pointed out that when the two defendants in those cases were sentenced, there was a declaration by the state that the state's penal interests did not require the additional punishment later imposed upon the indigents.

Now, in the case before the Court, I submit that there is no... even assuming that analysis, there is no declaration by the state that the state's penal interest is satisfied here without imprisonment.

You have to remember, this is a probation case.

Tate versus Short and Williams versus Illinois were not probation cases.

This defendant, this petitioner was put on probation, which is a conditional release, and he has to comply with certain conditions of probation.

So, it is a tentative release.

Moreover, in this case, the petitioner was put under the First Offenders Act of Georgia.

The Georgia Supreme Court has said in a case called State versus Wiley, which is at 233 Georgia 316, that the purposes of first offender's probation are not the same as ordinary probation.

The Court has said that unlike other probated sentences, the defendant is not merely serving his sentence outside the confines of prison, but is serving a period on probation to determine whether or not the prisoner may be rehabilitated.

So, first offender's probation in Georgia is even more tentative than ordinary probation.

So I submit we don't have a declaration here as in Tate and Williams that the state's penal interest was satisfied without imprisonment.

Now, I would like to also point out to the Court that the revocation in this case can rationally be argued to help maintain public confidence in the criminal justice system.

Surely, public confidence would seriously be eroded if a person like the petitioner could not only escape imprisonment, but even escape a conviction without having kept the conditions of his sentence.

And this concern is especially great here, because the petitioner was sentenced under the First Offenders Act of Georgia.

Not only will he escape imprisonment, but also a conviction.

Respondent submits that to maintain public respect for the administration of justice, this revocation, this state action here can rationally be seen as furthering that interest.

In summary, Your Honor, what we have here is a trial court faced with a difficult sentencing decision.

The trial court was faced with a defendant who had plead guilty to burglary and theft by receiving charges.

He has no prior felony convictions.

He says that he can pay a small fine and restitution, and he appears to be employed.

Based on those premises, the trial court places him on probation, gives him a very lenient sentence, and even gives him the benefit of the First Offenders Act.

Eight months later, the petitioner comes back in for revocation of his probation.

He has failed to keep the conditions.

He has not paid his fine and restitution, and is now unemployed.

Now, a lot of questions could be asked about the trial court's decision to revoke probation.

It could be asked whether it is wise, enlightened, progressive, humane, but those are not the issues.

The issue is, was the decision arbitrary, was it irrational?

The respondent submits that whatever might be said about the decision of the trial court, it was clearly rational.

Therefore, it meets the dictates of the equal protection clause of the Fourteenth Amendment, and the judgment of the Georgia Court of Appeals should be affirmed.

Thank you.

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

REBUTTAL ARGUMENT OF JAMES H. LOHR, ESQ., APPOINTED BY THIS COURT, PRO HAC VICE

Mr. Lohr: Mr. Chief Justice, I have just a couple of points.

First of all, as I understand the state's position, it is that the petitioner's loss of his job and his inability to pay his fine and restitution placed him in the position of being easily led to commit another crime.

I disagree with that.

I believe it is a false assumption, the one that was disapproved of in Griffin versus Illinois.

And the state seems to be riding a different horse.

It is not saying that the failure to pay the fine and the restitution was... caused him to be a greater threat to society.

It was his indigency.

In other words, the real reason for the revocation of his probation was his indigency.

With regard to public confidence, it is hard to pin down, but it seems to me that people are not going to have much faith in a criminal justice system that puts an individual in jail because he is poor and under the same circumstances when a rich person is going to be able to go free.

In Rodriguez, this Court reviewed Griffin, Douglas, Williams, and Tate, and in Justice Powell's opinion it was stated that where a person because of lack of wealth was completely unable to pay for a benefit, and as a result there was an absolute deprivation of that benefit, that the Court has struck down those types of state actions, and I submit that in this case, because of his lack of wealth, he was unable to pay for the benefits which flow from being on first offender's probation, and that he was completely deprived of those benefits.

For these reasons, I would respectfully submit that this Court should reverse the Georgia Court of Appeals.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10 a.m..

Attribution:

The OYEZ Project

Featured:

Little v. Streater - Oral Argument

Wed, 18 Feb 2009 06:13:16 +0000

Case:

Little v. Streater

Media File:

79-6779_19810113-argument.mp3

Related Transcript:

79-6779_19810113-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF JON C. BLUE, ESQ., ON BEHALF OF THE APPELLANT

Chief Justice Burger: We'll hear arguments next in Little v. Streater.

Mr. Blue, you may proceed whenever you are ready.

Mr. Blue: Thank you.

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

From time to time in the history of our country technological innovations have played a decisive role in the formation of constitutional doctrine.

This is a paternity case in which an indigent defendant was denied access to a blood grouping test that conclusively exonerates more than 90 percent of all falsely accused putative fathers.

A Connecticut statute categorically restricts access to this test to those defendants able to purchase it in advance of trial.

Unidentified Justice: In your statement of facts... and I was troubled in reading the brief too... I thought in a negative way, if it exonerated putative fathers, it exonerated them 100 percent.

Mr. Blue: It exonerates 90 percent of innocent putative fathers 100 percent of the time.

In other words, if you have 100 accused putative fathers, none of whom are the actual fathers.

The blood test, standard blood test available everywhere, will conclusively show that 91 or 93, depending on the race, of those men are not the father.

With the other seven to nine percent, the test will simply be inconclusive.

Unidentified Justice: Well, I had thought that... maybe the technology has gone beyond my previous knowledge... but I had thought that if you showed that the putative, the accused father had blood of a type different from the child, that he could not be the father.

Mr. Blue: That is exactly correct.

Unidentified Justice: It's just impossible for him to be the father.

Mr. Blue: And when the blood test--

Unidentified Justice: But if he had the same, it didn't prove that he was or wasn't.

Mr. Blue: --That is exactly correct.

The capability of medical science is simply that it will prove that exclusion to approximately 91 or 93 percent.

Unidentified Justice: Well, I thought it was 100 percent.

Mr. Blue: No, it is not.

It is approximately 91 to 93 percent, but with those innocent defendants, there is no doubt, it is 100.

The proof with those defendants rises to 100 percent.

But the others are simply inconclusive.

Unidentified Justice: In any event, it's conceded, without getting into the details--

Mr. Blue: Certainly, in fact--

Unidentified Justice: --That it's very probative and useful evidence in this kind of case.

Mr. Blue: --Oh, absolutely, and the State does not--

Unidentified Justice: Not question this; right.

Mr. Blue: --question this in its own brief.

Chief Justice Burger: Well, I suppose, not in the same sense but with the same result, an alibi witness showing that the gentleman was in Angola at the time as a war correspondent would produce a favorable result for him, wouldn't it?

Mr. Blue: Not in the same way that a blood test evidence produces the favorable result.

Because when the blood test evidence--

Chief Justice Burger: I'm talking about the consequence in terms of the judgment or verdict, as the case may be.

Mr. Blue: --No, because blood test evidence of exclusion is tantamount to automatic acquittal of the defendant in practice.

It does not turn on credibility.

An alibi witness, to use the example you chose, is only exculpatory if that alibi evidence is believed.

The two are not comparable in fact.

Chief Justice Burger: Is the trier or the triers if it's a jury, compelled to believe any expert testimony?

This is in the category of expert testimony, I take it.

Are they compelled to believe it?

Mr. Blue: Mr. Chief Justice, there is no Connecticut state law on the subject, although the statute we are appealing from speaks in terms of definite exclusion.

I can represent to you that there is simply no one case in the history of Connecticut, so far as I know, in which a defendant has been found guilty in the face of exculpatory blood test evidence, and does in fact have this practical--

Justice Marshall: And you can't cross-examine a blood test.

Mr. Blue: --Well, that's correct; that's correct.

And it's quite a different proposition than an alibi witness which raises problems of credibility in virtually any case.

Chief Justice Burger: You can cross-examine the people who make the test, can't you, and isn't there often cross-examination of experts who make tests?

Mr. Blue: Well, that is correct, because this is quite a different type of evidence than ordinary expert witness testimony that we're inclined to think of in, for example criminal cases; in, for example, a criminal case where you have psychiatric testimony indicating that the defendant is or is not sane.

You will have a situation in which different experts might hold honestly, might honestly hold different beliefs and have different observations of the same phenomena.

This is not the case with blood test evidence where there is a showing of exclusion; there will be no doubt as to the fact that the man is in fact excluded, and you simply do not have the type of disagreement between expert witnesses that you would, for example, in a criminal case involving psychiatric testimony.

It is really quite a distinct type of evidence even in the universe of expert testimony.

Justice Rehnquist: In a marijuana case or a drug possession case, for example, a typical type of evidence put on is to show that the packet possessed by the defendant was the same one submitted to the laboratory and is now in court.

And certainly the defense lawyer is permitted to cross-examine as to the passage of control from one person to another in that chain.

I would think, in laboratory examinations, that defense counsel is certainly permitted in most states, at any rate, to cross-examine as to, was this blood testimony, or was this blood sample the one actually taken?

Was there a mix-up in the laboratory?

And that type of thing.

Mr. Blue: That's correct, Justice Rehnquist.

It would depend on the particular state procedure.

But--

Justice Marshall: But that's not attacking the evidence.

The evidence is--

Mr. Blue: --That's not attacking the evidence itself.

It's a very tangible type of thing.

Justice Marshall: --And it's never been disputed; it's never been disputed.

Mr. Blue: That's correct.

It would be a very rare case where you would have actual--

Justice Marshall: I didn't say how you could get a witness to say that a blood test isn't accurate.

Mr. Blue: --That's right.

It would virtually never happen.

I mean... theoretically, some state laws might permit cross-examination as to whether blood samples have been switched, but in practice, the practical effect of that type of allowance is de minimis because in the overwhelming number of cases I think that even my opponent would concede that blood test evidence does have an indisputable quality to it when it yields an indication of exoneration.

And it does have a sweeping capability to exonerate that is simply not shared by other evidence, be is testimonial evidence or for that matter other scientific evidence in the ordinary cases that one might think of.

Now, it's our position that these distinctions which I have drawn make the constitutional difference, and the difference goes to both the truth-seeking function of the Court, or of the factfinder, whichever that may be, and also because the inevitable result of the distinction or the discrimination that Connecticut has chosen to draw is a dual system of justice.

I recall, in the case of United States v. Raddatz last term, Justice Blackmun in his concurring opinion pointed out that the focus of the Due Process Clause is a practical concern for accurate results, and surely few cases can be imagined in which that practical concern has a greater impact than in this case.

This Court has particularly been concerned with accuracy in the past years in Fourth Amendment cases involving the exclusionary rule of the Fourth Amendment.

Justice Rehnquist: And is the cost of a blood test sampling taxable as costs in a paternity proceeding in which the defendant is acquitted?

Mr. Blue: In some states it's discretionary though I believe I mentioned that in a footnote in my brief.

In Connecticut there is no reason as to why it might not be, and I would simply point out in that regard that we are not asking for a gratuitous subsidy.

But the State could, to minimize its own expenditure of costs, simply require that when the blood test fails, is taken and fails to exonerate the defendant, that the cost will be taxed as cost.

I believe that that is done specifically by statute in Kansas and Wisconsin, at least.

Justice Rehnquist: And what is the practice in Connecticut?

Mr. Blue: I'm not prepared to say.

I simply don't know.

I wanted to point out, on the fact of the impact of the accuracy of the test under the Due Process Clause, not only do we have Justice Blackmun's statement about--

Unidentified Justice: Before you get to that, may I just ask this?

Have you cited any case that suggests that if properly done, and the result is negative, that's the end of the case, civil or criminal?

Mr. Blue: --The Court... I have cited a source for that proposition.

The Court might refer to the Schatkin treatise which I cite on page 11 of my brief, which has pages and pages and pages of footnotes supporting the proposition cited in my brief that in the overwhelming weight of contemporary authority, is to treat blood grouping tests as decisive and conclusive--

Unidentified Justice: When they're negative.

Mr. Blue: --when they are negative.

Because there is no doubt--

Unidentified Justice: Well, not even... and you cite... it's amazing; it's 31 years ago... an opinion of mine of 31 years ago in New Jersey.

Did that hold that--

Mr. Blue: --I think you're thinking of Ross v. Marks--

Unidentified Justice: --For tetanus.

I don't even recall that.

Mr. Blue: --I would point out that there is an historical distinction that can be made here.

Unidentified Justice: Well, if this opinion, which I wrote when I was on the Appellate Division in New Jersey--

Mr. Blue: In the Cortese case?

Unidentified Justice: --Yes; in 1950.

Didn't that hold... or did it?

I don't recall, it's so long ago, that if negative that was decisive?

Mr. Blue: Yes.

Unidentified Justice: It did hold that?

Mr. Blue: Yes.

Unidentified Justice: And that the case ended there?

Mr. Blue: That's correct.

Unidentified Justice: Either civil or criminal?

Mr. Blue: That's correct.

In the very early years, in the late '30s, early '40s, when blood tests were new and people didn't really appreciate them, perhaps the tests were of a somewhat cruder quality, or there was some authority to the contrary; there was virtually no authority to the contrary in the last 20 or 30 years.

The tests are conclusive.

I would point out that--

Justice Marshall: Mr. Blue, before you leave that--

Mr. Blue: --Certainly?

Justice Marshall: --Can you draw the line as to what the State wouldn't be required to pay for?

Mr. Blue: I think that there are two--

Justice Marshall: I mean, could you say that if there is an expert in the field of something who is in South Africa, that the State would be obliged to bring him there?

Mr. Blue: --No.

Justice Marshall: And the difference is?

Mr. Blue: The difference is two-fold.

In the first place, an ordinary expert witness testimony will turn, as other testimony on matters of credibility, can be disputed.

Moreover, with exotic testimony, it will require a great deal of money to obtain.

You are out of the situation we have here where the test is readily available, and not only will you--

Justice Marshall: Well, suppose the expert could be obtained for $289.

Would you have to get him?

You're not going to put it on money, are you?

Mr. Blue: --Well, I would draw a distinction between the type of evidence which is ordinarily obtainable by the typical nonindigent defendant and the type of evidence which would only be available to more wealthy people which would create a somewhat different equal protection argument.

With the type of expert... of course you haven't elaborated what type of expert in South Africa you're referring to, if the expert was an expert comparable to blood test evidence in the sense that he was overwhelmingly likely to conclusively show, conclusively show that the defendant was innocent if he was in fact innocent, then that would present a case, obviously, very similar to the case we have before us, but expert--

Unidentified Justice: Expert testimony is by its nature and by definition opinion testimony.

Mr. Blue: --That is correct for the typical expert testimony.

Unidentified Justice: And we're not dealing here with opinion testimony, are we?

Mr. Blue: But this is not expert opinion testimony.

Unidentified Justice: No.

We're dealing here with factual--

Mr. Blue: That's correct.

This is a factual--

Unidentified Justice: --Only facts.

Mr. Blue: --That's absolutely correct, and that's the distinction that I'm trying to draw between the expert that one might... I'm sorry, Justice Stevens?

Justice Stevens: Isn't there another answer?

If the witness is within the jurisdiction and subject to process, if he's a $289 expert, the defendant has a right to subpoena him, doesn't he?

Mr. Blue: That's correct.

Justice Stevens: So he has an absolute right, even though it costs a little money.

Unidentified Justice: Well, who pays his fee?

In these cases, surely, how the test was done by the laboratory that did it and by whom it was done, which has to be an expert in this field, that's always open to inquiry.

Mr. Blue: That's correct.

Unidentified Justice: Who pays the expense, even if he may be subpoenaed, of the expert witness who testifies in that respect?

Who pays that?

Mr. Blue: The question rarely arises because when there is a medical showing of exclusion, typically the defendant will typically withdraw the case, or it would often be a motion for summary judgment that will be granted--

Unidentified Justice: Well, I know, but if you had a--

Mr. Blue: --If the State insists that it cross-examines the expert witness in a case like this where there is a showing of exclusion, I would argue to the right, I'm arguing, the right I'm arguing for would be meaningless if the resources were not provided to bring this expert witness to court, if it was the State was choosing to dispute it in the first place.

I would just point out--

Unidentified Justice: --You say the State would have to pay the expense?

Mr. Blue: --If the State chose to dispute that type of evidence.

Unidentified Justice: You would want to offer the result of a blood test?

Mr. Blue: That's correct.

Unidentified Justice: Or you would want to have one made?

Mr. Blue: That's correct.

Unidentified Justice: And the State would say, well, we're not so sure that laboratory does these things in the way they ought to be done, and if you're going to do that, you'd better be prepared to put on expert testimony to support the validity of the test and the method by which it was taken.

And then the expert at the laboratory says, all right, for $250 I'll appear in the courtroom.

Otherwise I won't.

You can't compel him if you don't pay him, can you?

Mr. Blue: No, I would think not.

I would certainly have no problem in that instance, which I emphasize is atypical in practice, in fact, very atypical.

But if it's the State that's bringing it, and I'm only concerning myself with actions brought by the State in the first place, that then the State should have to come up with the money.

Justice Blackmun: Yes, but doesn't your argument really carry over to the other situation?

Mr. Blue: What do you mean by the other situation, Justice Blackmun?

Justice Blackmun: Well, take a purely private paternity action, and if the blood test is so crucial and so conclusive, on your theory if the putative father is indigent, shouldn't the State pay for that also?

Mr. Blue: In due process terms I think it makes a great deal of difference whether the plaintiff, the actual plaintiff is the State or a purely private person.

Because I think that the Fourteenth Amendment, as Justice Rehnquist pointed out in Jackson v. Metropolitan Edison Company, draws a sharp distinction between deprivations by the State and deprivations by private people, no matter how wrongful, against which the Fourteenth Amendment offers no appeal.

In terms of equal protection, it may well not be evident who is the plaintiff.

The same disparity of treatment would exist between indigent defendants and nonindigent defendants.

But the State is the plaintiff in this case and the only line that I am urging the Court to draw certainly in terms of due process is a line that involves the fact that the real force, the real moving party in interest here was the State of Connecticut.

Unidentified Justice: Well, you're taking the Boddie approach, Boddie v. Connecticut.

That's what you really rely on.

Mr. Blue: That is in large part correct, because the fact of the matter is that like the would-be plaintiffs in Boddie, who were would-be plaintiffs, there is no alternative to the judicial process for the defendant in this case.

And I suppose, unlike Boddie, he may not be... Mr. Little may not be analogized to a defendant, he is a defendant, and there's no question that he should be entitled to the appropriate level of judicial scrutiny that typically--

Unidentified Justice: Well, my inquiry is really whether if we go along with you here we're not on a slippery slope, wondering where we stop.

Mr. Blue: --Well, I'm trying to draw... I understand your... I appreciate--

Unidentified Justice: We got on it in Boddie, didn't we?

Mr. Blue: --Well, you quickly got off in Kras and Ortwein.

Unidentified Justice: Yes, indeed.

Mr. Blue: But the way you got off, and the distinction that you drew to get off, was the distinction between voluntary and involuntary litigants.

The Court emphasized in Kras and reemphasized in Ortwein that the would-be plaintiffs in those cases had alternatives to the judicial process, alternatives which the defendant here in this case simply doesn't have.

Justice Rehnquist: But in Cuyler v. Sullivan, last year, in which this Court held that the standard for performance of counsel retained was the same as the counsel appointed, because the resulting judgment was the judgment of a state court imposing a certain penalty on a person, and therefore it was state action.

Mr. Blue: Like in Shelley v. Kramer?

Justice Rehnquist: Yes.

Well, wouldn't that apply here too, whether it's a private plaintiff or the State is a plaintiff?

The resulting judgment is the judgment of a state court saying that Defendant D is the father of the plaintiff?

Mr. Blue: Mr. Justice Rehnquist, that is a legitimate argument, and the Court might well rightfully hold that the same result should pertain to all defendants, whether or not they're prosecuted by the State.

But I want to point out that the fact remains that the real plaintiff here, throwing all its power and resources at the indigent defendant, was the State.

And in terms of traditional due process analysis, that makes a great deal of difference.

Justice White: Well, didn't the State also require this suit?

Mr. Blue: Oh, it's absolutely mandated by state law which is, in turn, mandated by federal law, although the state law--

Justice White: Because the mother, to get benefits, must reveal--

Mr. Blue: --That's correct.

Unidentified Justice: --the putative father and bring action.

Mr. Blue: That's absolutely correct.

Unidentified Justice: Well, she doesn't bring it.

The Department of Social Services brings it.

Mr. Blue: That's right.

She--

Unidentified Justice: That's really the State of Connecticut.

Mr. Blue: --That's right.

Unidentified Justice: And this case wasn't... the State suffered some expenses which were then taxed as costs, were they not, against the appellant?

Mr. Blue: In this case, yes.

I think it's on pages 20 and 21 of the Joint Appendix.

Unidentified Justice: You've made an extensive survey of these cases, I note in your brief.

Justice White: Maybe you know the answer to this.

Suppose there's a judgment against the putative father in a case like this and there has been no blood test.

And he's determined to be the father.

And he can't afford a blood test or for some... later he has a blood test and it's proved that he isn't.

Can the case be reopened or does res judicata bar it?

Mr. Blue: That's a question I would like for you, very much to see you ask my colleague, Mr. McGovern.

Under Connecticut state law, as I have pondered the question, I believe that the judgment is clearly res judicata.

It would ease--

Justice White: Well, there are limits to res judicata, when there hasn't been a fair trial or something.

Mr. Blue: --Oh, absolutely.

The question has not been litigated in Connecticut to the best, as best I have researched it.

Justice White: Well, how about around the country, or do you know?

Mr. Blue: I don't know, and I'm not sure that the question has even come up.

Let me explain the practical reason why the question probably has never come up.

Unidentified Justice: I should think it would.

Mr. Blue: The problem is that it's not just the matter of a man who has suddenly won the lottery after years of indigency walking into a hospital and asking for a blood test to be taken.

The blood test must be taken from the child, the mother, and the putative father, and in order to practically arrange for that type of a blood test to be taken you need a court order.

And in the absence of an existing open case, that type of court order is virtually impossible to get.

I don't know of a single case in which, at any level, at which that question you raise has been decided and I suspect that the reason is the very practical reason that I've discussed, which simply points out the fact that because of the fortuity that the defendant is indigent at the time the case is brought, and if he is indeed found guilty without the absence of blood test evidence he, so far as I can determine, will never in practical or legal terms be able to reopen that case.

And any money that he gets subsequently that might be used to pay for a blood test will in fact only be usable to pay for the judgment deficiency against him.

Justice Rehnquist: In this case, in Connecticut, is it a jury case or a court case?

Mr. Blue: A Connecticut statute now requires, I believe, a $60 fee for a jury.

My client did not have the money to pay for that jury.

The case ultimately went to a court trial with a trial judge.

Justice Rehnquist: Throughout the country, in your survey, is there any preponderance of evidence, or preponderance of practice as to whether these cases are tried by juries or by judges?

Mr. Blue: It's my strong impression, Justice Rehnquist, that in virtually all states the issue is at least triable before a jury.

Chief Justice Burger: Counsel, we've taken, or you have taken with us two-thirds of your time on this scientific-medical.

I'll just ask you one short question.

Are you familiar with the numerous cases of malpractice brought against laboratories that do blood testing for making errors in the blood tests which cause damage to the people involved because the doctors relied on the tests?

Are you familiar with the fact that that's happened?

Mr. Blue: Mr. Chief Justice, perhaps through my own lack of knowledge I'm not familiar with those cases in the particular context of blood grouping tests in paternity cases.

I mean, there are a variety of blood tests.

For instance, tests for venereal disease--

Chief Justice Burger: Would you use a blood--

Mr. Blue: --which might in fact be quite different.

Chief Justice Burger: --You use it for other purposes than paternity cases, do you not?

Mr. Blue: Yes.

Different types of tests.

I mean, the fact of the matter is that blood test is a generic term.

What we are talking about here is a blood grouping test.

Chief Justice Burger: But you use blood grouping tests for other purposes than paternity cases, do you not?

Mr. Blue: Possibly.

I--

Chief Justice Burger: If you give the wrong blood to a person in a transfusion, you're in a very serious business.

That's where some of these malpractice suits have developed.

Mr. Blue: --Okay.

Well, my only... I'm not familiar with that phenomenon, although I'm not disputing that the phenomenon may exist.

My point, Mr. Chief Justice, is not... is simply the fact that blood grouping tests in the context of ongoing paternity cases are treated as controlling and decisive.

And this fact, this indisputable fact... I don't think that the Attorney General even disputes it... necessarily results in, when you have a distinction like the Connecticut Legislature has drawn in this case, of a gross disparity between the indigent and the non-indigent in as far as the quality of justice administered or received by these litigants, not just wealthy litigants, but nonindigent litigants receive if they are innocent, are overwhelmingly likely to receive swift, scientific, certain exoneration, whereas all indigent defendants regardless of their actual guilt or innocence are thrust into swearing contests in which the trier of fact will often desperately try to arrive at the correct result.

Unidentified Justice: This isn't a matter of guilt or innocence, is it?

Hasn't Connecticut said these are civil proceedings?

Mr. Blue: Connecticut labels them as civil but--

Unidentified Justice: Well, guilt or innocence has to do only with criminal proceedings.

Mr. Blue: --In Connecticut, if you research Connecticut law, the findings in paternity cases are specifically referred to as guilty or not guilty.

In fact... this was not a jury case, but in a paternity jury case, the jury will be instructed by the trier of fact, by the court, to deliver a finding of guilty or not guilty.

Unidentified Justice: Mr. Blue, I reckon I've interrupted you.

Earlier I asked you a question which you accepted the premise of, that the difference between this sort of evidence and ordinary expert testimony is that the latter is invariably opinion testimony.

But the more I think about it the less clear a line that is, when one begins to think about handwriting experts and ballistics experts.

There can be a difference of opinion as to facts, can't there?

Mr. Blue: I would still draw a distinction between this type of evidence which is--

Unidentified Justice: Is it more like fingerprinting?

Mr. Blue: --in practice is universally exculpatory, and the type of ballistics evidence which is typically just an indication of guilt or innocence rather than... a ballistic showing will rarely in and of itself show--

Unidentified Justice: Well, maybe... what you try to show is that this is or is not this person's handwriting, and that this bullet was or was not fired by this gun, or that these are or are not somebody's fingerprints.

Mr. Blue: --I'm not an expert in handwriting or ballistics--

Unidentified Justice: My only thought is that the distinction upon which we agreed a while ago may be a blurred distinction.

Mr. Blue: --Well, I would argue with that.

I think that in practice it is simply not--

Justice White: I take it you say that every doctor or technician who, looking at the same evidence, the same comparison, would come to the same result?

Mr. Blue: --Where there is a showing of exclusion that is in fact the case.

There is no--

Justice White: Well, if they would all agree that--

Mr. Blue: --Yes, sure.

It's unlike psychiatric testimony.

Justice White: --All agree that this blood is or isn't the same as the other blood?

Everybody should agree.

Mr. Blue: That's right, that's right.

It is not like the example I used of psychiatric testimony in a criminal proceeding where you will have expert witnesses on either side testifying the opposite thing.

That is--

Justice White: Has that ever happened in any of these cases you've ever seen where some incompetent person does the reading of the test?

And has there ever been a dispute in one of these cases as to whether or not the blood is or isn't the same?

Mr. Blue: --I know of no... I mean, obviously, the example you give is a conceivable example.

I simply know of no such case and the courts--

Justice Stevens: Well, it's not even conceivable, is it, because you just take another test if you had doubt about whether you got the right one.

Mr. Blue: --Well, that's exactly it.

And the important thing that I want to leave this Court with, now that my time is about to expire, is that the fact that these tests are universally given decisive and controlling importance is the fact that creates the disparity between the nonindigent and the indigent that's at issue in this case.

I'll reserve whatever time I have left for rebuttal.

Justice Powell: May I ask you a question, Mr. Blue, before you sit down?

When you come back with your reply, if you could state a limiting principle, in light of all the questions that have been asked you, it would be very helpful to me.

Mr. Blue: With the Chief Justice's permission I'll do that now, since my time has just expired.

Justice Powell: How do you avoid the slippery slope type questions that have been asked here in some abundance, as a general principle the courts can apply?

Mr. Blue: That's right.

The distinctions I would draw are, one, the role of the State in this case, which I think is a legitimate distinction this Court can draw.

And, two, the nature of the evidence which, unlike other evidence either expert or other testimonial evidence, is when it yields a finding of exoneration will conclusively and beyond dispute show that in fact the defendant is not the father of the child in question.

It is that type of conclusive aspect to the evidence in question that I think is a legitimate distinguishing principle that this Court can avoid the slippery slope which I know that it obviously will have in mind.

But I think that the Court by crafting its opinion in that way can avoid the implications that the court did, you are concerned with, Justice Powell.

Justice White: Well, have efforts been made and rejected in the great State of Connecticut to have public financing of tests like this, or to receive financing for tests like these from some private sources?

Mr. Blue: I simply don't know--

Justice White: After all, there are only two states, apparently, that--

Mr. Blue: --Connecticut and North Carolina.

Justice White: --that don't have some way of paying the cost.

Mr. Blue: As the amicus brief points out, even to Connecticut, under federal regulations, the Federal Government would reimburse 75 percent of the cost, but the State would have to pay for it first.

Justice White: Well, have there been proposals in the State Legislature that have been rejected or not?

Or do you know?

Mr. Blue: If there have been those proposals, and there doubtless have, at some point, they simply haven't gotten very far.

Thank you.

Chief Justice Burger: Mr. McGovern.

ORAL ARGUMENT OF STEPHEN J. McGOVERN, ESQ., ON BEHALF OF THE APPELLEE

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

My name is Stephen J. McGovern.

I'm Assistant Attorney General in the State of Connecticut.

I think it should be pointed out in this case that paternity actions in the State of Connecticut are civil litigations.

Mr. Blue's brief tries to--

Unidentified Justice: Well, that's what you call them, but are they really civil?

Mr. McGovern: --Yes, Your Honor.

I'd like to explain that in the State of Connecticut a paternity action is instituted by a verified petitioner with a summons and an order to appear at a date certain for trial.

Unidentified Justice: Let me ask this.

There is a judgment here and support money has to be paid.

Supposing he doesn't pay it.

Can he be incarcerated for nonpayment?

Is that a criminal act?

Mr. McGovern: No, it isn't, Your Honor.

There is a state statute which provides for nonsupport.

That is a criminal statute.

However, stemming from the paternity judgment, in the paternity section of our statutes there is a provision for contempt citations.

They are civil contempts.

They're remedial in nature and they're not punitive.

The goal of these contempts is to secure the money that is not paid.

To have the defendant in a paternity case be found to be in contempt of court for nonpayment of support, there must be a showing that he willfully failed to meet the support order.

He either refused or neglected to pay it.

The fact the defendant is indigent would certainly not be the basis for his incarceration as being in contempt.

The paternity action is brought by a regular civil complaint for a date certain.

As in other states... some states provide that a defendant would be arrested and have to post bail.

That is not the case in Connecticut.

A civil trial is held, there is an adjudication, possibly, of paternity.

That adjudication certainly doesn't subject the defendant to incarceration.

Justice Marshall: Did you say that he is "guilty"?

Mr. McGovern: The only aspect--

Justice Marshall: Is that right?

Mr. McGovern: --That is correct, Your Honor.

And I would say, that is the only aspect of the proceedings which may make it appear to be criminal in nature.

In every other aspect it is civil in nature.

The contempt proceeding which I've alluded to is an independent action brought under another statute.

It does not stem from a paternity judgment itself.

Justice Rehnquist: Mr. McGovern, do you understand the gist of your opponent's complaint in this case to be the failure of the State of Connecticut to allow blood grouping tests to be taxed against a state or against the private plaintiff, if it were to go that far, if the blood grouping tests prove to the satisfaction of the trier of fact that the defendant is not the father, or the failure to advance the money necessary to get the blood grouping test?

Mr. McGovern: There is no provision in the statute, Your Honor, for the taxing of cost.

The paternity statute itself, under which judgment is entered, provides that the cost of support and maintenance of the minor child, attorneys' fees, sheriff's fees, may be taxed as cost.

There is no provision under the statute that the cost of the blood grouping test be paid and I have never seen a case in which a defendant prevailed in the State of Connecticut in which costs were taxed against the State.

Justice Marshall: Well, if you did, if you put the costs of this blood test in the costs, he would have to pay it, wouldn't he?

Mr. McGovern: Yes, Your Honor.

Justice Marshall: Why didn't you do that?

Why couldn't the State do that?

All the other courts do it.

Mr. McGovern: I think this is--

Justice Marshall: Doesn't the state do it in all the other costs?

Mr. McGovern: --State pays for the attorney, Your Honor--

Justice Marshall: And the court, the judge, and everything, didn't they?

They paid for all the costs but this.

Mr. McGovern: --That's correct, Your Honor.

Unidentified Justice: Do they pay--

Mr. McGovern: That's just one piece of evidence.

Your Honor.

Unidentified Justice: --Do they pay for the lawyer for the defendant?

Say an indigent defendant is sued, does the--

Mr. McGovern: The State does not pay for the lawyer.

It would appear in this case that Mr. Blue is from Legal Aid for Prisoners.

I believe the State funds that organization so in effect the State is--

Unidentified Justice: --Well, it's the essay... the State is paying the lawyer in this case, for the defendant?

Mr. McGovern: --Yes, it is.

Unidentified Justice: And in any other case, if it goes to contempt proceedings, would the State insure that the defendant in that contempt proceedings which you say is a separate matter has a lawyer?

Mr. McGovern: I would say, Your Honor, if he was incarcerated, as is the case here, yes.

If he wasn't incarcerated, he would be directed by the court to go to a legal assistance.

I have not seen a case where the court will appoint an attorney to represent somebody in a contempt hearing.

Justice Stevens: General McGovern, do you know, in a case that does not involve a nonindigent, say, a defendant had a blood test made and he paid for it, could he recover the cost of the blood test from the plaintiff in his cost-taxing costs of litigation?

Mr. McGovern: I believe it might be possible that he could.

I do not know.

Justice Stevens: Well, let me ask you another question about costs that Justice Marshall's question prompted.

Under your practice, if the defendant is in jail and has no money and has ten alibi witnesses that he wants to subpoena to prove he was in Angola or someplace at the time of the alleged incident, does he have compulsory process available to subpoena the witnesses?

Mr. McGovern: I don't believe he does, Your Honor, no.

Justice Stevens: So, any witnesses who would testify on his behalf would be just volunteers?

Mr. McGovern: That's correct, Your Honor.

Justice Powell: May I ask this question also?

If the defendant in this case had lived a couple of hundred miles away and is not in prison, would the State pay his expenses to come to the trial?

Mr. McGovern: The State in that situation, Your Honor... the case would have been referred to another State agency to bring a reciprocal support action, reciprocal paternity action, and the paternity action would most likely have to be brought in that state.

In the compact among states--

Justice Powell: I'm not talking about a different state.

Connecticut is--

Mr. McGovern: --I know, within Connecticut itself--

Unidentified Justice: --You can't be 200 miles away in Connecticut and not be in a different state.

Mr. McGovern: --Pardon me, Your Honor.

Justice Powell: In Virginia you can be 400 miles away.

Mr. McGovern: If the defendant resides in Connecticut, yes.

Justice Powell: You would pay his expenses?

Suppose he said, I'm dead broke, I can't come to Hartford or wherever you're going to try me.

Mr. McGovern: No, no, the State would not pay his expenses.

No.

Unidentified Justice: What would you do?

Just default, eh?

Default judgment?

Mr. McGovern: No, default without... he has a right to counsel.

Justice Powell: He wouldn't be there to testify.

Mr. McGovern: He's served by a sheriff for him to appear at a date certain under cited court order.

Correct, if he doesn't appear, yes, a default would enter.

That's correct.

In a paternity litigation, if a defendant does not appear for trial, a default will enter against him.

Unidentified Justice: That would happen--

Mr. McGovern: But first he has four months to reopen the judgment.

Unidentified Justice: --So if the proceeding were brought in New Haven and he lived in Hartford--

Mr. McGovern: Yes, Your Honor.

Unidentified Justice: --Service would be made in Hartford by the sheriff of the county in which Hartford is located, is that it?

Mr. McGovern: Yes, Your Honor.

Unidentified Justice: And then this would call upon him to respond in New Haven, appear?

Mr. McGovern: That's correct, Your Honor.

Unidentified Justice: And the State would not pay his, whatever the cost would be from Hartford to New Haven?

Mr. McGovern: His transportation fees?

No.

Chief Justice Burger: In this respect, it would be no different from a traffic violation or a negligence case or any other case, would it?

Mr. McGovern: Exactly.

This is a civil litigation.

If the State was bringing an action, some other civil action, for reimbursement--

Justice White: Well, it isn't exactly like civil litigation in a sense because the State requires that this action be brought.

Justice Marshall: What other civil action does the State pay for the lawyer to prosecute the action for a private individual?

Mr. McGovern: --I don't believe there's any other, Your Honor.

Justice Marshall: Just this one?

Mr. McGovern: Yes, Your Honor.

Justice Marshall: But it's still civil?

Mr. McGovern: Yes, Your Honor.

Chief Justice Burger: We resume there at 1 o'clock, counsel.

Mr. McGovern: Thank you.

0 [Recess.]

Chief Justice Burger: Mr. McGovern, you may continue.

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

Due process requires that the defendant be given an opportunity to be heard in a meaningful manner at a meaningful time.

It is the State's position that even without a blood grouping test he has an opportunity to be heard in a meaningful way.

Defendant in this action, the appellant here, has legal counsel at no cost.

He has the ability to cross-examine the plaintiff in the action.

He has the ability to take the witness stand on his own behalf, he has the ability to call witnesses, he has the ability to use all the discovery techniques available within our civil rules.

Unidentified Justice: Under Connecticut law, don't I remember from the briefs that the defendant in an action such as this has something pretty close to the burden of proof?

Mr. McGovern: That is true, Your Honor.

There is a burden of proof on the--

Unidentified Justice: So it's not just his burden to disprove the State's case, which would be what cross-examination might do?

Mr. McGovern: --Yes, Your Honor.

Unidentified Justice: He has the affirmative burden of proof.

Mr. McGovern: The plaintiff has the burden of proof.

She must remain constant in her accusation.

And that constancy can be attacked under cross-examination.

Unidentified Justice: But doesn't the defendant have some sort of an unusual burden in a case like this under Connecticut law?

Mr. McGovern: Under Connecticut law, if the plaintiff does remain constant in her accusation, and by preponderance of the evidence, the court may find the defendant to be the father of the child.

Unidentified Justice: I read these briefs some time ago--

Justice Marshall: --Doesn't he have to do something other than his own testimony?

Doesn't Connecticut require him to do more than just testify himself?

Mr. McGovern: If the plaintiff remains constant in her accusation, yes, Your Honor.

Justice Marshall: So he does have a burden in doing more than the direct testimony.

Mr. McGovern: He does have the burden of--

Justice White: Well, what if all the evidence in the case... what if the judge thinks that all the evidence in the case including his testimony and any other evidence is an equipoise?

Mr. McGovern: --I'm sorry, Your Honor?

Justice White: Well, what if it's just evenly balanced, does he have the burden, ultimate burden to convince the judge by a preponderance of the evidence?

Mr. McGovern: Yes, Your Honor.

Justice White: That's what I thought; yes.

Mr. McGovern: Yes, Your Honor.

In this case, Your Honor, the defendant filed 60 interrogatories.

He has other methods available to him besides the blood grouping test in which to defend the action.

Justice Stevens: General McGovern, do you disagree though with the general appraisal of the reliability of the blood test that your opponent asserts?

Mr. McGovern: No, Your Honor.

Justice Stevens: So if it's available, that really is the most reliable?

Mr. McGovern: It is the most reliable.

Justice Stevens: Let me ask you another question in terms of, we talked about slippery slopes and that sort of thing here, is it possible that there's another interest that should be considered in the whole equation, and that is, the interest of the child makes it especially important that the correct answer be given in a case like this?

Mr. McGovern: Well, I would agree with that also, Your Honor.

There is an interest of the child to be considered.

But there must be--

Justice Stevens: It's not typical in litigation between private parties?

Mr. McGovern: --That's correct, Your Honor.

Chief Justice Burger: Well, what's the purpose of this inquiry?

Is it for anything other than economic purposes?

Isn't it to decide whether--

Mr. McGovern: The Supreme Court of Connecticut has stated that paternity action is nothing more than a shifting of economic arrangements from one party to another.

Paternity legislation in Connecticut is considered to fall in social... as social and economic legislation.

Justice Rehnquist: --Is that the same whether the action is initiated by the State or by the private plaintiff?

Mr. McGovern: That's correct, Your Honor.

Justice Rehnquist: And is the burden of proof the same, whether it's initiated by the State or by the private plaintiff?

Mr. McGovern: Yes, it is, Your Honor.

There's no differentiation.

Unidentified Justice: I think you've, in your answer to Mr. Justice Stevens, indicated that the child has an interest in this litigation.

And if that's so, could it be argued that the State has the duty to provide the best evidence possible?

Mr. McGovern: I think, if we look at the statute, Your Honor, the statute is written to only allow admissibility of the test to exclude the defendant.

The statute does not, cannot be used, to include the defendant.

Unidentified Justice: So?

Mr. McGovern: So, I feel, if the statute remains in its current form, the rights of the child can best be protected by having the test paid for by the party who seeks to provide the evidence.

Unidentified Justice: Well, here's an indigent who can't afford to pay it, and it might be that the real father is not indigent.

Wouldn't the State be better off if they could locate the real father?

Mr. McGovern: Well, we have to assume, Your Honor, that the mother has named the real father.

Justice White: Why?

Well, there's a... I guess statistics show that errors have been made.

Mr. McGovern: There have been errors made, but in the majority of instances, certainly--

Justice White: This process would eliminate a good many possible errors.

Mr. McGovern: --Certainly, Your Honor, and the majority, in most of the cases, the defendant who is named in the litigation is found to be the father.

It's not a case of--

Justice Marshall: Well, why have the hearing?

If the mother is willing, why have the hearing?

The question is, you said that when the mother said that this is the man, that's it.

My answer is, why hold the hearing?

The mother says... in this particular case, is anybody certain that this man is the father, as of now?

Mr. McGovern: --Yes, Your Honor.

Justice Marshall: How can you be certain when he's never had a blood test, when there is a possibility that the blood test would show that he was not the correct one?

Mr. McGovern: Your Honor, this is civil litigation.

We're asking the State to fund a defense for a man with civil litigation.

We have to assume that on the facts presented at the trial, that the judge weighed the evidence--

Justice Marshall: I agree with Justice Blackmun.

This is labeled a civil action, but it was brought by the State.

Mr. McGovern: --It was brought by the plaintiff, Your Honor.

The plaintiff's mother--

Justice Marshall: Who gave the plaintiff the lawyer to bring the suit?

Mr. McGovern: --The state funded the attorney.

Justice Marshall: And the State asked her to bring it.

Required her to bring it, if she wanted any support.

Mr. McGovern: Required her?

Certainly.

That's correct.

Justice Marshall: If she wanted benefits.

And that's a private litigation.

Mr. McGovern: Yes, Your Honor.

Justice Marshall: Are you going to put "private" into quotes?

I'm not sure I'll buy it in quotes.

Chief Justice Burger: Well, isn't... going back to one of your previous responses, is there any question about that the purpose of the proceeding is purely economic, to identify the person who is responsible for the future support of the child?

Mr. McGovern: That's correct, Your Honor.

That is what the Supreme Court of Connecticut has held in the case of Robertson v. Apuzzo.

Unidentified Justice: Well, more accurately, it's to shift, it's to shift the burden of support if they can locate the father from the State, because all this is, she doesn't get any assistance of any kind if in fact they can find the father able to support the child.

Isn't that right?

Mr. McGovern: If... that's correct.

If the father has the financial ability to meet the needs of the child, which are greater that the amount of assistance that the State gives the child, she would be removed.

Unidentified Justice: Otherwise, the mother, to support the child, would have the benefit of public assistance, wouldn't she?

Mr. McGovern: Yes.

Justice Powell: Mr. McGovern, I'm not clear as to the burden of proof.

This suit was instituted by the mother.

Mr. McGovern: Yes, Your Honor.

Justice Powell: And does she have the burden of persuasion, the overall burden of proof throughout the trial?

Mr. McGovern: She has the burden of showing that the defendant is the father by a fair--

Justice Powell: Well, that's at issue, isn't it?

That's at issue, isn't it?

Mr. McGovern: --Yes, Your Honor, by a fair preponderance of the evidence.

Justice Powell: All right.

Mr. McGovern: Not beyond a reasonable doubt--

Justice Powell: I understand.

Mr. McGovern: --as in a criminal litigation; by a fair preponderance of the evidence.

Justice Powell: She has the normal burden in a civil case?

Mr. McGovern: That's correct, throughout this trial.

Unidentified Justice: That isn't what you said a minute ago.

I thought you--

--Throughout this trial.

Mr. McGovern: Excuse me, Mr. Justice.

Justice Powell: Well, I'm trying to find out your question that led him to say just the opposite, I think, Mr. Justice White.

Well, I didn't think it led him anywhere.

I thought something led him.

I never heard of a civil plaintiff not having the burden of proof, not having the burden of persuasion throughout a trial.

Mr. McGovern: She does have have the burden of proof and the defendant can introduce evidence to rebut it.

Justice Powell: Of course.

Of course.

But who has the ultimate burden of persuasion at the end of the trial?

Mr. McGovern: The plaintiff.

Justice White: Well, you answered me just exactly the reverse a little while ago.

I thought you did, anyway, and I thought you answered Justice Stewart that way.

He did answer--

Mr. McGovern: Well, I would state--

Justice White: --I'll start out this way.

At least his own testimony is never sufficient to overcome--

Mr. McGovern: --His testimony alone is not as long as the plaintiff remains constant in her accusation that the defendant is the father of the child.

Justice White: --So she always prevails, as long as he doesn't offer any other testimony besides his own?

Mr. McGovern: As long... that's correct, Your Honor.

Justice Rehnquist: Can you tell us where in the case materials the statute or decision is that supports the... I too sense somewhat differing answers to the questions.

Mr. McGovern: No, I can't point to the statute, Your Honor.

Justice Rehnquist: Well, how can you answer the question then?

I mean, it must be in a case or in a statute.

Mr. McGovern: The case law of Connecticut states that the mother of the child if she remains constant in her accusation that defendant is the father of the child, paternity is an issue.

If she remains constant and that accusation is not rebutted or torn down, yes, the defendant will be found--

Unidentified Justice: Well, does that mean this, that she takes the stand, she said, he's the father, he's the father, he's the father, he's the father.

She never deviates.

He's the father.

He takes the stand and says, I am not, I am not, I am not, I am not.

And the factfinder believes him and doesn't believe her, you're saying--

--She wins.

--she wins.

Is that right?

Even though--

Mr. McGovern: --If that was the testimony, she would win.

Justice Rehnquist: --What case is it in Connecticut that says--

Unidentified Justice: --The case law begins, discussion of it begins on page 33 of the appellant's brief, going back first to

"The Book of the General Laws for the People within the Jurisdiction of Connecticut. "

1673.

And then discussing the case of Booth v. Hart, decided in 1876.

Town of Chaplin v. Hartshorne, 1825.

And the other cases discussed there.

Justice Rehnquist: Thank you, counsel.

Unidentified Justice: That's at least where my impression came from.

From a careful reading of the brief?

Yes.

Mr. McGovern: The fact that other states have chosen to fund the cost of blood grouping tests does not mean that the State of Connecticut should be made to do likewise.

The State has certain priorities in administering its judicial system.

It chooses to have the litigants in civil litigation bear the cost of that litigation.

I think that this is reasonably based.

Justice Marshall: Who pays for the witnesses for the plaintiff?

Mr. McGovern: In this action there were no witnesses other than the--

Justice Marshall: But, normally, who would pay?

Mr. McGovern: --The party--

Justice Marshall: The State would.

The State pays for the lawyer, it would pay for the witnesses, wouldn't it?

Mr. McGovern: --The State would probably... yes, Your Honor.

The State would pay for the witnesses; yes.

Justice Rehnquist: Mr. McGovern, the most recent case cited in the appellant's brief, to which my brother Stewart has referred, is a case called, cited as 6 Connecticut Circuit Court 516.

What is the circuit court in Connecticut?

Mr. McGovern: The circuit court no longer exists in Connecticut.

That was the court of lower jurisdiction which existed in Connecticut during the early 1970s.

That court was abolished and became the Court of Common Pleas and the courts evolved and merged into one court at this time, a Superior Court.

That was not a decision of the court of highest jurisdiction in the State; a trial court.

Justice Rehnquist: And what is the most recent decision of the highest court of the State of Connecticut on the subject?

Mr. McGovern: Of blood grouping tests?

Justice Rehnquist: Yes.

As to preponderance of the evidence, burden of proof, and that sort of thing?

Unidentified Justice: Could I suggest that your colleague at the bottom of page 34 of his brief cites a Connecticut Supreme Court case, Mosher v. Bennett?

Mr. McGovern: Yes, Your Honor.

Unidentified Justice: And that quote is this:

"The prima facie case so made out. "

--that's by the plaintiff...

"places upon the reputed father the burden of showing his innocence of the charge, and under our practice he must do so by other evidence than his own. "

Now, it says,

"the burden of showing his innocence. "

And you accept that as the law of Connecticut?

Mr. McGovern: Currently that is the law of Connecticut, Your Honor.

Justice Rehnquist: That's a 1929 case.

Has the Supreme Court of Connecticut--

Mr. McGovern: No, it hasn't.

No.

That issue hasn't been before the court since then.

Finally, Your Honor, the appellant has argued that, he hasn't argued today but in his brief that this inability to provide a blood grouping test violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Normally, this Court in making equal protection analysis has used either a strict scrutiny test or a rational basis test.

Strict scrutiny is invoked when there's a fundamental right which has been violated or a suspect classification exists.

I don't believe in this case, Your Honor, that the right to a blood test, is a fundamental right in a civil litigation, and also that wealth-indigency is one of those suspect classes which warrant strict scrutiny by the Court and require the Court to show that there's a compelling State interest in the statute.

The State of Connecticut should be made to comply with the rational basis test and only have to show that there's a reasonable basis for the statute with the cost being paid only by the party who wishes to use the evidence in the litigation.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

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