Cases by Issue - Costs or Filing Fees

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:

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

Featured:

Fuller v. Oregon - Oral Argument

Thu, 23 Aug 2012 18:26:45 +0000

Case:

Fuller v. Oregon

Media File:

73-5280_19740326-argument.mp3

Related Transcript:

73-5280_19740326-argument

Transcript:

Argument of J. Marvin Kuhn

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yes, Your Honor.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It's my opinion that should --

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No, Your Honor.

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

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

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

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

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

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

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

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

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

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

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

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

Chief Justice Warren E. Burger: Now what --

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

The defendant may very well become liable for that also.

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

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

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

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

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

No, Your Honor.

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

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

It's guaranteed by the Sixth Amendment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Harry A. Blackmun: Because they canceled probation?

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

Justice Harry A. Blackmun: Because they canceled probation?

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

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

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

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

However the --

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

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

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

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

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

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

Mr. J. Marvin Kuhn: I believe --

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

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

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

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

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

It's the --

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

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

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

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

Mr. J. Marvin Kuhn: That is correct.

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

It's just the opposite.

They will sign anything.

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

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

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

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

Mr. J. Marvin Kuhn: Quite a few.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. J. Marvin Kuhn: Yes Your Honor.

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

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

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

Justice Potter Stewart: As a condition of probation?

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

Assuming it was not a burden.

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

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

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

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

Argument of Gillette

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

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

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

The answer is probably yes in most jurisdictions.

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

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

Justice Potter Stewart: It was a Federal Judge?

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

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

Justice Potter Stewart: But he also had the statute?

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

That's what happened.

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

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

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

The next inquiry is, can you afford one?

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

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

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

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

Now, it may turn out subsequently --

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Potter Stewart: And then he is bound over?

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

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

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

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

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

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

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

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

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

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

This is $350.00 or something?

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

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

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

The defendant's father actually paid the money.

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

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

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

Mr. Gillette: Yes, sir there is.

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

That's usually the fee paid.

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

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

Mr. Gillette: That's right.

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

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

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

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

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

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

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

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

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

Yes, sir.

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

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

I should have explained that I think in the addendum.

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

Mr. Gillette: That's right.

We got an answer specifically to that question.

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

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

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

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

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

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

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

Unknown Speaker: How old is the statute?

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

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

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

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

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

Mr. Gillette: I don't know.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This condition is rarely imposed in the --

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

Mr. Gillette: No.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Gillette: That happens, they tried.

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

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

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

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

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

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

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

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

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

Do you have anything further Mr. Kuhn?

Rebuttal of J. Marvin Kuhn

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

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

United States v. Kras - Oral Argument

Thu, 23 Aug 2012 18:23:20 +0000

Case:

United States v. Kras

Media File:

71-749_19721018-argument.mp3

Related Transcript:

71-749_19721018-argument

Transcript:

Argument of Edward R. Korman

Chief Justice Warren E. Burger: We'll hear arguments next in Number 71-749, United States against Kras.

Mr. Korman you may precede whenever you are ready.

Mr. Edward R. Korman: Mr. Chief Justice, may it please the Court.

The United States appeals from the judgment of the district court for the Eastern District of New York, striking down as unconstitutional, an act of Congress, which required the payment of a $50.00 filing fee as a condition to a grant of a discharge in bankruptcy.

The district court held that the statute and the orders in bankruptcy promulgated by this Court, which provide that the filing fee may be paid out over a period of nine months -- up to nine months in installments after the filing of the petition were unconstitutional as applied to an asset-less debtor who alleged that due to his poverty he was unable to promise to pay the filing fee, even in installments.

Although the district court ordered that the discharge be granted, he indicated that he -- that the obligation to pay the $50.00 filing fee should survive the discharge and be paid when and if the petitioner of bankruptcy was able to afford it.

The district court also held that the federal in forma pauperis statute, 28, United States Code 1915 (a) was inapplicable here since Congress plainly manifested its intent to abolish in forma pauperis proceedings of bankruptcy and substitute in its place a system of installment payments.

The United States intervened in the district court to defend the constitutionality of the statute and the district court granted a stay of the order of discharge pending the resolution of this appeal.

Briefs and the opinions below understandably dwell on what it is that this petitioner of bankruptcy has been deprived of as a result of his inability to pay the $50.00 filing fee.

But I think it is important that the issues, and I think that the issues raised here can be seen in their proper perspective only by first examining what it is that Congress has given, an indigent asset-less petitioner of bankruptcy despite his inability to pay this $50.00 filing fee.

Initially, it must be observed that it is no long as far as an indigent debtor is concerned, this is no longer a filing fee that we are talking about.

Under the statute the petitioner of bankruptcy may file his petition without paying any fee at all, provided that he indicates on how he proposes to pay that filing fee in installments for up to six months, and the period may be extended for yet an additional three months.

Now, that filing of the bankruptcy petition carries significant legal consequences.

He is automatically adjudged to be a bankrupt, and as a result all of his earnings following the filing of the petition are exempt from his creditors.

And so what Congress has in effect said to an asset-less debtor, said, if you feel that you have earnings that you want to immunize from the reach of your creditors, you can file your petition.

You will have up to nine months to pay and as those earnings which you expect and anticipate come in, you will pay us out this $50.00 filing fee over a period of up to nine months, and I should point out that in actuality the filing fee as far as asset-less debtors go is really $40.00, $10.00 goes to the trustee, and since it is an asset-less debtor, there is no need for a trustee.

On the other hand, if as this petitioner alleges, he does not anticipate any income, he does not anticipate sufficient income to pay off his $50.00 or $40.00 at a sum of about a dollar a week, then Congress may rightly inquire why it is that he needs this discharge to begin with.

That is, the discharge becomes meaningful only when the possibility of additional assets and income becomes a reality, and when those additional assets become a reality then the $50.00 filing fee does not present any impediment at all to such an asset-less debtor.

Justice Thurgood Marshall: This man was on welfare, right?

Mr. Edward R. Korman: That's correct.

Justice Thurgood Marshall: And if I understand welfare correctly, you get enough money to live on, do you?

Mr. Edward R. Korman: That is correct.

Justice Thurgood Marshall: But why does he not get the $60.00?

Mr. Edward R. Korman: Well, if he doesn't -- what I am saying Justice Marshall, if he doesn't as he says, expect to get any income, his welfare benefits are exempt from his creditors, so that what he is saying is, I want the discharge, the reason a person wants a discharge is so that any future earnings, nonexempt earnings --

Justice Thurgood Marshall: Sometime after six months?

Mr. Edward R. Korman: Well, what in effect Congress is saying is that when you need it, come and we will let you file your petition, and when those earnings that you expect and you want to immunize become a reality, as those earnings come in, you can pay us out this $40.00 over a period of six to nine months.

On the other hand, if he appears on January 1 and he says, I don't expect to have any income for the next six months, why is it that the Congress can may rightly ask, why it is that this gentleman needs a discharge to begin with?

Justice Thurgood Marshall: Well, why is -- why not look the other way, why is the reasoning can't get?

Mr. Edward R. Korman: Well, because Congress has decided --

Justice Thurgood Marshall: Because he doesn't have $50.00?

Mr. Edward R. Korman: That's correct.

Justice Thurgood Marshall: That's the only reason.

Mr. Edward R. Korman: That's correct.

Justice Thurgood Marshall: That's the only reason.

Mr. Edward R. Korman: That's correct.

Because Congress has just decided that those who benefit from the operation of the bankruptcy system or to contribute a small portion of the cost of operating it, as a matter of fact, while the Congress initially intended that bankruptcy system be self-sufficient and self-supporting, because of the increased cost and the failure of the Congress to increase the fee, the bankruptcy system is now running at a deficit, but nevertheless Congress has a legitimate interest.

Justice Thurgood Marshall: The deficit is around a million dollars a year, that's a great big deficit, isn't it?

Mr. Edward R. Korman: That's correct.

Justice Thurgood Marshall: It's a big one.

Mr. Edward R. Korman: It is.

Justice Harry A. Blackmun: But for many years it did --

Mr. Edward R. Korman: It did operate up until I believe 1968, it operated at a substantial surplus.

At the moment it's operating at a deficit and Congress is in fact considering now that it is operating on a deficit perhaps repealing, but this decision to abandon in forma pauperis petitions in bankruptcy, which was made in 1948, was based on a Congressional finding of what happened during the years when in forma pauperis applications were available.

What happened was in those years while you could file a -- get in forma pauperis treatment in bankruptcy, the referees were paid and received their salary only out of the fees that they actually collected.

The referees then would allow the petitioner to file his petition, but simply refused to grant them the discharge until they were paid.

And what Congress found is, is that, in almost every case, given a period of time in which to pay out the filing fees, they were almost invariably paid.

So Congress said, that seems to us to be a much better procedure for handling these in forma pauperis petitions.

Let the petitioner of bankruptcy file his petition, we will give him up to nine months to pay, and then he can obtain his discharge.

In essence, this was really a reasonable substitute for the in forma pauperis proceedings and in practice it does not operate harshly, in practice the only test of whether you get a discharge or not is need.

That is, if you need the discharge because you expect the income, you can file your petition without paying anything, and as that income which you anticipate comes in, you can pay out this filing fee.

On the other hand, if you as this petitioner do not expect to have any income to pay it -- pay this $50.00, then you really do not need the discharge, and in fact, Congress is really saying, our bankruptcy courts are overburdened as it is, when you need the discharge, we will give it to you.

Now, I think this legislative program is a perfectly reasonable effort on the part of Congress to compromise between on the one hand the indigent debtor and on the other hand its desire to see that those who benefit from a particular legislative program contribute to its costs.

I think clearly there is a rational basis for this classification and certainly no basis to strike it down on equal protection grounds as the district court apparently did.

And as a matter of fact --

Justice Potter Stewart: Did you say that the district court, and I just reread it, sorry, glanced over its decision again, I can't find it in here, that the district court held that the $50.00 fee was not itself dis-chargeable in bankruptcy and will remain liability of the debtor?

Mr. Edward R. Korman: That's correct, that's correct.

Justice Potter Stewart: I just didn't see that in its opinion.

Mr. Edward R. Korman: I think it's near the last page or two in this opinion in which the district court said that.

I think that is an implicit recognition of the reasonableness of the statute and indeed I do not think that it is clear that the district court did not find that the statute in this classification was unreasonable and I do not understand -- my advisory here to argue that.

Justice Byron R. White: Well, it's just a question then of when the discharge occurs, before or after the payment?

Mr. Edward R. Korman: That's correct.

Justice Byron R. White: But sooner or later he is going to have to pay?

Mr. Edward R. Korman: That's correct, although I don't know where the district court thought he had the power to so provide.

Justice Potter Stewart: I wonder since you've now been interrupted, since Congress has left it up to this Court in this general order in bankruptcy to deal with the problem of the installment payments, whether or not an amended general order, it's the new general order that has to deal with the problems in this case or at least go far toward it?

Mr. Edward R. Korman: I don't think that's the case, because I believe the statute provides that you don't get the discharge until you actually pay the fees out in installments.

Justice Potter Stewart: I thought the -- we are talking about the statute enacted in what year?

Mr. Edward R. Korman: The 1946 statute, which I believe appears at Page 30 of our brief, which provides that the court shall grant a discharge unless satisfied that the bankrupt has failed to pay the filing fees required to be paid by this time in full.

Justice Potter Stewart: Provided however that in cases of voluntary bankruptcy?

Mr. Edward R. Korman: No, I was -- provided then the fees may be paid in installments, but first --

Justice Potter Stewart: If so authorized by general orders by the Supreme Court of the United States?

Mr. Edward R. Korman: That's correct.

What I think the Court can do is extend the period of time, make it a year for the installments, but I do not think that the Court --

Justice Potter Stewart: Could make it $00.10 a year I suppose?

Mr. Edward R. Korman: Well, I suppose that's so.

There is no limitations as I see in the statute on the time allotted for the petitioner to make the payments.

Justice Potter Stewart: But you don't think the power -- that the Court would have power under the statute by general order to say that there is going to be discharged prior to the payment of the whole $50.00?M

Mr. Edward R. Korman: No, I wouldn't think so, and the particular portion of the statute that I referred to is Section 14 (c) (8), which appears right at the top of Page 30.

Justice Byron R. White: Well, if you string out the time for paying the installments and keep the injunction in force you really in effect have a discharge?

Mr. Edward R. Korman: That's correct, in effect what Congress, as I tried to point out earlier, in effect, Congress is giving the indigent asset-less debtor the benefits of the discharge while he pays out the money that's involved here, rather small sum.

Justice Byron R. White: In this case, (Inaudible)?

Mr. Edward R. Korman: Well, I think there is -- it's different --

Justice Byron R. White: I mean, you can collect the fees sometime, or if you can extend the time and in effect get a discharge, you will give him two years at $00.10 a week before he gets the discharge?

Mr. Edward R. Korman: Well, I think what we're arguing about here is whether or not the Congress is going to be struck down as unconstitutional.

I think that's a serious question.

I realize that conceivably under the orders of this Court the period of time in which a person has to pay it out to be extended for quite a lengthy period, but nevertheless, there may be a purpose on the part of Congress as a matter of social policy, merely to say, that before you get this particular benefit, you must contribute to the costs of the operation of the bankruptcy system.

And of course there is an incentive where the petitioner is getting income to get his discharge ultimately, and I do not think that if he actually has the money and income is coming in, he is not going to deliberately stall the payments of the monies, and of course the Court has discretion under this to put a stop to any efforts on the part of the debtor where it fears that he is deliberately stalling and delaying the payment of the --

Chief Justice Warren E. Burger: Well, as practical matter, laying aside these constitutional questions, when and if, as Justice White has suggested, the creditors are offered this man’s bag, is it economically feasible to pursue $50.00 item on behalf of the government?

Mr. Edward R. Korman: Well, I think at the moment that's precisely what Congress is studying, whether that is economically feasible.

It's not economically feasible in the sense that we can go out and check each and every case to determine whether the petitions that are filed requesting in forma pauperis treatment are true, and in effect, in almost every case we have to accept all of these allegations as true.

Chief Justice Warren E. Burger: If you know, would you refresh my recollection on either policies or regulations of the Department of Justice with respect to claims under certain amounts.

In times past, has the Department not had a cutoff and said we will not concern ourselves with claims under $100.00 or under $200.00 or under some fixed amount?

Mr. Edward R. Korman: That may be, but I am just uncertain.

Now, the district court held -- did not hold, nor does my friend here argue that this classification is unreasonable or that it involves invidious discrimination.

What the district court held is that the government was required to meet a compelling interest standard, relying on cases such as Shapiro versus Thompson, and we submit that those cases are holy and applicable here.

Those cases employ the compelling interest standard where a particular classification infringed upon a fundamental constitutional right.

We are not dealing here with any fundamental constitutional right. Congress could repeal the entire bankruptcy statute tomorrow or the discharge provisions tomorrow without raising so much as a constitutional ripple.

What we have here is simply a benefit that's provided by Congress and it's clearly improper to hold that Congress must meet a compelling interest standard.

Justice Potter Stewart: No state has constitutionally required to have statutes permitting divorce I suppose?

Mr. Edward R. Korman: Well, I would qualify that by saying that at the Boddie and perhaps Griswold versus Connecticut, a state might not be able to wholly arbitrarily deny a divorce.

I would think that they --

Justice Potter Stewart: I don't think there is anything, I don't remember anything in Boddie offhand that says that the state has to have provision for dissolution of marriage.

I believe that one state I think it was Mississippi, for years didn't have any divorce, you have maybe in South Carolina, one of those states had to get a special act of the state legislature to have a divorce, and I don't know that anybody ever attacked that situation from a constitutional point of view, and of course it was good many years ago.

Mr. Edward R. Korman: I think that's true.

I think it in Boddie there is rather a lengthy discussion of what is involved in a divorce, Mr. Justice Harlan pointed out --

Justice Potter Stewart: Yes, (Voice Overlap)

Mr. Edward R. Korman: -- it involves the dissolution of a rather fundamental human relationship.

Justice Potter Stewart: It does indeed, and the state might determine that it's not going to permit the dissolution of that fundamental human relationship.

Chief Justice Warren E. Burger: The present is not central to Boddie that this was a relationship which could not be dissolved in any other way except by judicial action?

Mr. Edward R. Korman: That's correct.

I think there were two aspects to the Boddie holding, as there must be since Boddie was a due process, was decided under the Due Process Clause of the Fourteenth Amendment, which of course provides that no person shall be deprived of life, liberty, or property without due process of law. Due process required a court, a hearing in court, as Mr. Justice Harlan held for the Court, that it must have been because he decided that the dissolution of this fundamental human relationship was of liberty within the meaning of the Fourteenth Amendment's Due Process Clause, and we have a liberty within the meaning of the Due Process Clause and the state saying that the only way you can get this essential liberty is to come into the courts.

You can't write your spouse a letter and say, we're divorced and you can't agree to it.

So in effect, what the state was saying in divorce cases is that, in order to get this fundamental interest, this liberty under the Fourteenth Amendment, you must come into our courts said Justice Harlan, under those circumstances the state could not condition the right to dissolve this fundamental human relationship.

Chief Justice Warren E. Burger: But a debtor and creditor can (Voice Overlap)

Mr. Edward R. Korman: That's correct.

A debtor and creditor can, they can get together and compromise the debt.

The debt can be simply discharged by operation of the statute of limitations, where there is no action taken to enforce it, and that's not a wholly unlikely situation.

Nobody is going to go after an asset-less debtor.

They are not going to waste as much as a nickel to attempt to enforce their claim against him, and as I read the petition in bankruptcy, he doesn't really allege that anyone has threatened suit against him, that he is being harassed.

But, he does say he is being harassed by his creditors, but the harassment that he speaks of is simply in way of references with respect to his character rather than any legal proceedings against him.

So that no one --

Justice Thurgood Marshall: Would you assume that people on welfare aren't harassed by creditors?

Mr. Edward R. Korman: No, I am not assuming that people on welfare are not -- I am assuming that people who are asset-less and who have as little as this petitioner claims that he has, it would be somewhat foolish of a creditor to waste his money in an attempt to invoke the judicial process to obtain funds.

Justice Thurgood Marshall: I didn't say judicial process, I said harassment, telephone calls?

Mr. Edward R. Korman: That maybe true, but I don't think --

Justice Thurgood Marshall: Lawyers letters, everything you can name.

Welfare people are always harassed by creditors, you recognize that or not?

Mr. Edward R. Korman: Yes.

Well, the harassment that I was speaking of was in the real situation, whether it would be likely that a debtor -- a creditor would bother in effect to go after him in a judicial proceeding in attempt to get any money from him, since he is not working and he obviously has no assets.

And as a matter of fact, I think one of the major debts about which this petitioner complains is thousand dollar debt to the Metropolitan Life Insurance Company, which he claims they say he stole from them, and therefore they have an action converging against him.

Now, the New York Statute of Limitations for an action in conversion is three years.

According to the petition, the the conversion, act of conversion alleged, that took place in May of 1969, probably he has been discharged already by operation of the Statute of Limitations.

So that unlike Boddie, and I think there were two essential distinctions here, both crucial points of Boddie.

In the first place the state has not monopolized the means of dissolving this debtor-creditor -- this particular relationship.

It can be dissolved by the parties themselves, the debt can be compromised, and indeed it could be discharged simply by inaction of the creditor over a period of time until the statute of limitations runs out, and in the second place, as far as an asset-less debtor goes, certainly, the right that's involved here hardly approaches an importance and significance, the right of an individual to decide whether he is going to live with another person in the institution of marriage and indeed the right to remarry again.

And so that on those two essential grounds we feel that Boddie is inapplicable here and indeed I would point out that the district court, although he cited Boddie a good deal, did not really rely on the language in Justice Harlan's opinion, but relied instead on the concurring opinions and on Justice Black’s dissent from the denial of certiorari on the Garland case, which was a case in which the First Circuit upheld the $50.00 filing fee, and this court denied cert almost immediately after the decision in Boddie.

And this opinion of Mr. Justice Black that the district court I believe cited in effect unequivocally stated that it rejected the reasoning of the majority opinion in Boddie.

And I think that it's quite clear that there is very little in Boddie when it's out in the context of this case that supports petitioner’s contention -- petitioner of bankruptcy's contention here.

Justice William H. Rehnquist: Mr. Korman, on Page 5 of the appendix is, as I read the respondent's affidavit, he does state that one of the reason he wants to be able to file a petition is to relieve creditor harassment.

So I suppose you would have to concede that there is harassment in fact and to contend that it may be a diminishing factor and at any rate it could be settled in some other ways?

Mr. Edward R. Korman: I think it's a diminishing factor, I think when read in context, when you look at the next sentence that follows that.

The kind of harassment he was talking about was in fact that Metropolitan Life Insurance Company, whenever he gives that company as a reference, seek employment, says to the prospective employer that this fellow was a thief.

Now, how a discharge of bankruptcy is going to help him, I don't know, but if you look at Page 13 of the brief, what he says is, that since Metropolitan -- now, if he gets the discharge says he, it's true that Metropolitan would still continue to tell prospective employers that he is a thief, but says he, since Metropolitan did not appear before the referee to contest the debt, appellee’s discharge in bankruptcy will not only erase this debt, but will hopefully remove the unwarranted stigma that operates as an albatross around his neck, because he says Metropolitan will have to explain why it is they didn't appear in the bankruptcy court to contest the discharge.

Justice Thurgood Marshall: Mr. Korman, on that point you said about, when he gets the money, that's when he could pay the $50.00, and he shouldn't file bankruptcy until he gets the money.

Mr. Edward R. Korman: Until he anticipates getting it.

Justice Thurgood Marshall: Now, on this Metropolitan thing, assume it's not bought by the statute and assuming Metropolitan next year reduces that good judgment, what can he do about that 20 years later when he gets enough money to go into bankruptcy?

Mr. Edward R. Korman: Well, as soon as he gets a job or he is offered a job, he can come in and file his bankruptcy petition and that will in effect immunize his earnings after the petition is filed.

Justice Thurgood Marshall: How can he get a job with a thousand dollar judgment on him?

Mr. Edward R. Korman: Well, I assume that -- I am thinking about as a practical matter, if an employer was offering him a job and said, well, you have this thousand dollar judgment against you, I am not going to hire you.

He can say, well, if that's the only impediment, I will file a bankruptcy petition tomorrow and that will resolve the problem.

Justice Thurgood Marshall: I see.

Justice Lewis F. Powell: Mr. Korman, the petition states that the petitioner was falsely discharged by the insurance company.

Does the record show whether or not he brought any action against the insurance company for a false discharge?

Mr. Edward R. Korman: No, it doesn't.

Justice Lewis F. Powell: Contingent assets, list of assets in bankruptcy?

Mr. Edward R. Korman: Well, it was listed as a debt that he wanted to have discharged, that is --

Justice Lewis F. Powell: It could have cut both ways, couldn't it?

Couldn't it have been an asset in terms of a damage suit against the employer, alleged falsely to have discharged him?

Mr. Edward R. Korman: Well, I don't know Justice Powell that New York allows such course of action.

Justice Lewis F. Powell: I don't know either.

Mr. Edward R. Korman: And I am not familiar enough, quite frankly, with whether under the bankruptcy law such a contingency would be considered an asset.

Justice Lewis F. Powell: There is nothing in the record on it I guess?

Mr. Edward R. Korman: No, there isn't.

Justice Potter Stewart: And how he couldn't pay the filing fee is to bring some law suit --

Mr. Edward R. Korman: Well, there is what we call is -- there is a general in forma pauperis statute.

We are dealing here with an exception to that statute, which is based on a Congressional finding that there is simply another and a better way to deal with the problem of in forma pauperis applicants in bankruptcy proceedings, and that better way is simply you have the asset-less debtor file his petition and pay it out in installments, that filing of the petition is based and a need for the discharge is based on his assumed expectations of earnings, and for these reasons we would ask that the judgment of the district court be reversed.

Justice Byron R. White: Was the issue here whether the district court could require a prepayment?

Mr. Edward R. Korman: The district court -- I am sorry, the district court said that the general in forma pauperis statute is --

Justice Byron R. White: You said in the argument that (Inaudible) was there a demand that he prepaid the fee?

Mr. Edward R. Korman: Yes.

You can't get the discharge in bankruptcy until you pay the fee in each challenge.

Justice Byron R. White: I know, but I thought the question was how could simply when he file it?

Mr. Edward R. Korman: No, when he filed -- right, and he said that --

Justice Byron R. White: So they had -- does the practice in the district court require prepayment to take the petition?

Mr. Edward R. Korman: That's correct.

Either prepayment or a statement of indigency with a proposed plan to pay the --

Justice Byron R. White: He filed the petition saying he was an indigent?

Mr. Edward R. Korman: That's correct.

Justice Byron R. White: And the district court demand -- would have demanded that, except for its owing one constitutionality would have demanded prepayment, wouldn't have taken the petition at all?

Mr. Edward R. Korman: No, it would have demanded prepayment or a statement of how he proposed to pay in installments, and he said that he could make no promise to pay in installments.

Justice Byron R. White: So the actual rule is, you may file and if you propose installments, you may file and the process will go forward (Voice Overlap)

Mr. Edward R. Korman: That's correct, that's correct, and you get all the advantages of the adjudication.

Justice Byron R. White: So you have the injunction?

Mr. Edward R. Korman: That's correct.

Justice Potter Stewart: Mr. Korman, you haven't, unless I missed it, dealt with the argument under the statute, 28 U.S.C. 1915 (a)?

Mr. Edward R. Korman: The reason I hadn't Mr. Justice Stewart is because I don't believe that the holding of the district court is contested.

The legislative history is rather clear on the issue.

It clearly indicates the intent of Congress to abolish in forma pauperis proceedings of bankruptcy.

Every court --

Justice Potter Stewart: And that law was enacted when?

Mr. Edward R. Korman: 1946 I believe.

Justice Potter Stewart: And when was 1915 (a) last addressed by Congress, do you know?

Mr. Edward R. Korman: I don't know.

I know that there was a general in forma pauperis statute in effect in 1898 when Congress initially provided for in forma pauperis treatment of bankruptcy, and I think probably the fact that Congress felt that it needed a special statute for the Bankruptcy Act, initially, would indicate that the Congress was not of the view that the in forma pauperis statute applied to bankruptcy proceedings.

But as a general matter, it's quite clear from the legislative history and every court Mr. Justice Stewart, even the courts that have struck the statute down, has held that the general in forma pauperis statute has --

Justice Potter Stewart: I know that has been the holding, but wouldn't you agree that the plain language of 1915 (a) covers this?

Mr. Edward R. Korman: Yes, I will have to agree that the plain language does seem to cover it, if you don't consider the particular legislative history involved here.

Justice Potter Stewart: Now generally or at least the old-fashioned way of statutory construction was that if the plain language was clear, that was the end of it, you didn't look at the legislative history?

Mr. Edward R. Korman: Well, but there is --

Justice Potter Stewart: I grant you, that's a little bit out of style?

Mr. Edward R. Korman: Well, but the language of the statute clearly indicates that Congress did not want the discharge to be granted till the filing fees were paid in the the legislative history.

And the rules of this Court, I would add, the orders of bankruptcy which were based on the statute so read it.

It said, no discharge until the filing fees are paid and the legislative history clearly assumes --

Justice Potter Stewart: And assumes the ability to pay?

Mr. Edward R. Korman: Well, it assumes that --

Justice Potter Stewart: And the 1915 (a) assumes the existence of a pauper who is not able to pay?

Mr. Edward R. Korman: The rules did not assume an ability to pay initially, that is on the show that you are a pauper in order to get this benefit of installment payments, and I think Congress clearly -- it would be somewhat silly for Congress to say you have to show you are a pauper before you could get --

Justice Potter Stewart: It's not a first time that Congress has done a silly thing, would it?

Mr. Edward R. Korman: No, it wouldn't, but it would in any event seem somewhat silly for Congress to say that you have to file a -- you have to make a statement of indigency before you can get benefit of an installment payment, and then on the other hand contemplate that a general in forma pauperis statute would apply, you wouldn't have to do anything except file the petition and the affidavit of indigency.

Justice Potter Stewart: How broadly has 1915 (a) been applied in the district courts, do you know?

I don’t really -- we see it in criminal cases, I wondered if in bringing or defending civil cases --

Mr. Edward R. Korman: I think it has been applied broadly except in this area where the -- all of the lower courts, almost -- I don't know the decision the other way, have held that the general in forma pauperis statute is inapplicable here.

Justice Potter Stewart: Thank you.

Chief Justice Warren E. Burger: Mr. Finkel.

Argument of Kalman Finkel

Mr. Kalman Finkel: Mr. Chief Justice, may it please the Court.

It is ironic considering the broad purposes of the Bankruptcy Act that appellant would argue that Mr. Kras is just a little too poor to be entitled to a bankruptcy discharge.

I would like to briefly focus, since appellant has not, Mr. Kras' financial plight and its relationship to the Bankruptcy Act.

Mr. Kras can be characterized as a man who is down on his luck.

He was last steadily employed in 1969 for an insurance company.

Premiums that he had collected were stolen from his home.

Basically, he was discharged from his job and he was basically accused of stealing the premiums.

Each time he went to apply for employment, bad references of the insurance company followed him.

Meanwhile, his debts began to accumulate, he was harassed by creditors.

He found himself on public assistance and his wife is home taking care of a handicapped child.

This is a man who can be characterized as completely frustrated and a failure.

He sees no way other than a discharge in bankruptcy to extricate himself from his present plight.

This man is a natural candidate for a bankruptcy discharge.

Congress in enacting the Bankruptcy Act understood that one of the most fundamental liberties an individual has is his right to earn a livelihood, and they recognized that on some occasions a man becomes so overwhelmed by debt, so harassed by creditors that he becomes immobilized, that he has nowhere to turn, and Congress enacted the Bankruptcy Act, not in the narrow reading of what appellant says, not merely as economic relief, the interest of society at large was at stake.

They wanted not only to relieve the man of his debts, free him from creditor harassment, they were interested in emancipating him from his debts and giving him an opportunity to start afresh.

Chief Justice Warren E. Burger: Well, isn’t he emancipated when the injunction has entered, at the filing of the petition?

Mr. Kalman Finkel: But, Your Honor --

Chief Justice Warren E. Burger: For all on the pragmatic aspect that you’re now sending to us?

Mr. Kalman Finkel: Well, as a practical manner perhaps, but I would like to point out at the outset that this individual would not have been allowed to file his petition, but for the district court declaring it unconstitutional, because there was no way for Mr. Kras to promise that he would be able to pay in six months, $40.00 or $50.00.

That petition would have been dismissed immediately.

There would have been no stay.

The only reason there is a stay in this case is that the United States District Court declared the fee unconstitutional.

Chief Justice Warren E. Burger: Would you assume or do you know whether some bankruptcy petitioners file their petition and file a statement that they will pay $1.00 a week or some such thing, and then in fact not be able to live up to that?

Mr. Kalman Finkel: Yeah, there are situations where perhaps that has happened, but in this particular case and many other cases that we represent clients, they cannot make that promise, and there is an initial fees of $10.00 that they also do not have, that has to be paid immediately.

Justice William H. Rehnquist: But more accurately, I suppose what you mean is they can’t make the promise with any reasonable expectation of performing?

Mr. Kalman Finkel: Well, they don’t know.

These are people who are, you know, have lived with debts and creditor harassment and they need something dramatic to give them a chance, and that dramatic gesture is what the purposes of the Bankruptcy Act is, to tell him that he is discharged.

The man is -- personally, he has another chance, and the United States government makes a laughing matter of it, but he has a chance to somehow be personally vindicated.

He has been accused of being a thief.

If, and as happened, the insurance company does not come into the bankruptcy court, that debt would be discharged.

Personally he will feel vindicated.

Now, in fact, he may still receive bad references from Metropolitan, but that personal vindication will have huge psychological implications to that individual; his ability to earn a living, to become rehabilitated and perhaps a productive member of society, and the mere stay just doesn’t accomplish that result.

Justice Potter Stewart: And the discharge won’t decide whether or not he was a thief or has any bearing on it?

Mr. Kalman Finkel: Well, it will in one sense, because if the insurance company had any evidence whatsoever that he committed a fraud, that debt would survive the discharge and bankruptcy, and therefore had they come into the bankruptcy court and prove their claim, that debt would have survived.

The fact that it does not survive now gives him a sort of personal vindication.

Chief Justice Warren E. Burger: How much was involved in the lost premiums?

Mr. Kalman Finkel: $1016.00.

Chief Justice Warren E. Burger: And you suppose the Metropolitan Life is going to pursue a man after the injunction and treat him as an ordinary debtor in these circumstances?

Mr. Kalman Finkel: Well, I have no way of knowing what Metropolitan will do, but it wouldn’t be surprising --

Chief Justice Warren E. Burger: Well, the generality of creditors don’t waste their time on such claims with people of that kind, isn't that true?

Mr. Kalman Finkel: I would say no Your Honor, it's not because the majority of bankruptcies that we have today are individuals and that's the reason there is a huge financial deficit in the system, are individuals with income with less than $4,000.00 who are subjected to creditor harassment and creditors do go after them and to judgments.

Some of them by the way are default judgments, that today the reason that the system is not any longer self-sufficient -- self-sufficient since 1969 is that, if not a majority, many petitioners are people with gross income of less than $4,000.00.

Consumers, the bankruptcy court is now become what was hopefully designed to be a court for consumers also, not only for business people, and these consumers have less than $4,000.00 in gross assets.

And they are harassed, there are judgments against them, even though the creditor should know that these people do not have huge sums of money.

In fact, I should also point out that Congress never intended, there is no evidence at all that Congress intended that an individual such as Mr. Kras should be denied a bankruptcy discharge, or that he was too poor.

What happened under the forma pauperis provisions basically, the referees were extorting money from the indigents.

They were making these people pay because that went into their fees, where they got -- some couldn’t pay and they didn’t get the discharge of this pay, and Congress in order to eliminate this inconsistent and unjust result setup a system of installment payments.

But there is no legislative finding or Congressional finding that an individual who is too poor for a discharge is not entitled to a statutory right to a discharge.

There is no such finding in Congress.

In fact, today, there are many people that we have to turn away, because they do not have the filing fee and legal aid does not have any funds for it, and they cannot promise.

And prior to this case, we turned away many people at our trial office before this suit was brought, because we just -- there is no funds available and there was no way that they could promise to pay within six months, and then you have to get another extension for three months, so it was not quite nine months.

But this individual is caught in a vicious cycle, and because he is so overwhelmed and so harassed, he has no where to turn, it's difficult for him to even seek employment.

He is defeated and exactly what the bankruptcy law was designed to do was to say, forget the debts, forget the creditor harassment, now we’re giving you an opportunity to start over, to rehabilitate yourself, feel free, and maybe then, not only will the debts be forgiven, but they’ll be forgotten.

If we get to all the, you know, the hardships that he had, then he will be able to uplift himself and try for a job.

Justice Potter Stewart: What was the nature of his employment?

Mr. Kalman Finkel: He was a salesman for the insurance company, and after that he was only able to find odd jobs, equaling about $600.00.

Justice Harry A. Blackmun: Except for this psychiatric overlay or his psychological overlay, is he able bodied?

Mr. Kalman Finkel: Yes.

Justice Harry A. Blackmun: Does the record show whether he has tried to get employment?

Mr. Kalman Finkel: Yes, the record indicates the petitioner -- that he has applied not only within New York City, but he has gone outside the city to seek employment, and the bad references of Metropolitan he claims has followed him outside New York City.

Justice Harry A. Blackmun: That's going to follow him after bankruptcy anyway, isn't it?

Mr. Kalman Finkel: Yes, it probably will follow him, but once discharged, then I think he has a better chance of bringing a civil action against them and he has a better chance of explaining it to an employer that Metropolitan didn’t see fit to come into court and protect that interest and really prove their case that maybe it's a false accusation, I don't know.

Justice Harry A. Blackmun: Do you feel that an employer will be impressed with that approach?

Mr. Kalman Finkel: I think it may, I just don’t know, but I think it has -- I think personally his personal sense of vindication, that's very important, will have an impact on his ability to proceed and obtain employment.

Justice Harry A. Blackmun: What you are arguing is psychology, isn't it?

Mr. Kalman Finkel: No, Your Honor, I am arguing that the individual is -- there is a procedural bar in an individual statutory discharge, and that procedural bar violates his constitutional right to be heard and has to be struck down.

Congress setup a Bankruptcy Act.

A man cannot get -- can’t even get into court unless he pays his fee.

That fee has applied to indigents is unconstitutional.

It doesn’t matter how reasonable the filing fees.

In Boddie versus Connecticut, the filing fee was very reasonable, but not as applied to indigents.

Here too, the bankruptcy installment fee may be a very reasonable thing, but not as applied to Mr. Kras.

Justice Harry A. Blackmun: As I recall, the fee in Boddie was higher than the fee here?

Mr. Kalman Finkel: It was a little higher.

The fee here Your Honor is higher than --

Justice Harry A. Blackmun: You say if it’s reasonable in Boddie, then it is reasonable here?

Mr. Kalman Finkel: No, it’s not.

The fee maybe -- a state may setup a filing fee system that is reasonable, but if it works to preclude an indigent's access to court, on bounds, it becomes unconstitutional and unreasonable as applied to that indigent.

That's what happened in Boddie, it wasn’t the amount in controversy.

The fee here is much larger than the forma pauperis application in both the trial or the appellate court under 1915; there the fees are only $15.00 and $25.00 for pauperis.

And here we have a much greater check on the man’s actual poverty on the formal pauperis 1915, there is hardly a check to determine whether the man is truly an indigent.

Justice Potter Stewart: Have you given any though to whether or not this Court in a general order could solve this situation as authorized by Congress?

Mr. Kalman Finkel: I gave it a thought about 20 minutes ago, Your Honor, when you asked that question.[Attempt to Laughter]

I would say that regardless of how small the fee is, which is the only power this Court can really have, because I think the statute mandates a certain fee prior to discharge, and regardless of how long the period will be, it will still be insufficient, it would be contrarily to the real purposes of the Bankruptcy Act.

The man should have his discharge if he cannot pay it without any payment because he is being denied his opportunity to be heard.

Now, in Boddie, I just address myself --

Justice Potter Stewart: While I interrupted you, I am curious.

Are you in formal pauperis in this court?

Mr. Kalman Finkel: Yes.

Justice Potter Stewart: I was just curious, you have a very nicely credit brief here and I wondered --

Mr. Kalman Finkel: Yes.

Justice Potter Stewart: -- where the money came to print that?

Mr. Kalman Finkel: It comes with the United States Supreme Court.

We are forma pauperis in the United States Supreme Court.

Justice Potter Stewart: Alright.[Attempt to Laughter]

Justice Byron R. White: Do you attack the District Judge's indication that the fee may be collected later?

Mr. Kalman Finkel: No, Your Honor, we don’t know where his authority is, but we have no trouble with it, because as long as the --

Justice Byron R. White: So he comes out of bankruptcy with this debt?

Mr. Kalman Finkel: He comes out with this debt and he comes out with the debt to the Federal Government of $150.00 in taxes and a few other debts, but he comes out with a complete discharge.

Justice Byron R. White: Whatever a discharge covers his debt?

Mr. Kalman Finkel: Right.

Justice Byron R. White: But it doesn’t cover this debt?

Mr. Kalman Finkel: We didn’t object to that part of the order that was inserted, and we have no -- we didn’t object to it upon consideration, we might in the future, but as of now we have accepted that.

He would survive as long as he has the discharge.

Justice Harry A. Blackmun: Mr. Finkel, one another question, does your argument to carry us logically to the conclusion that there should be no fees, maybe no fees constitutionally imposed in every or any asset-less estate?

Mr. Kalman Finkel: Your Honor, I would say that taking Boddie, this case can be distinguished from all filing fee cases and come within Boddie, because this individual although it’s not an absolute monopoly, the state has interposed a statutory scheme and there are no realistic alternatives for Mr. Kras.

He cannot offer anything in settlement for his claim.

With respect to the broader question, Your Honor, I would answer yes, unequivocally, that I feel that all filing fees that bar an indigent's access to court in the first instance should be struck down as relative depressive.

I don't say that can be found in the narrow reading of Boddie, but I do say it is found in the substance of due process on the right to be heard, and that that individual's right goes back thousands of years.

Under the Roman law there was a waiver of filing fees.

Almost 500 years ago in the statute of Henry XII, there were provisions for waiver of filing fees for indigent plaintiffs in civil cases.

There were also provisions for counsel.

On the criminal side, we have given much more than bare access.

We've allowed them in and we've given all the instrumentalities necessary to vindicate their legal rights.

Counsel, free transcript of the minutes.

On the civil side, what we're basically talking about is, get access to court, which I feel and I think the constitution mandates is part of the substance of due process, and even though under the common law they never lived up, there was disparity between the ideals and reality of the system of justice as Professor McGuire pointed out in his classic article, almost 50 years ago, most of the problems were administrative.

The courts had no way to ferret out the meritorious from the frivolous claims.

No way to determine who was really an indigent, who was more affluent.

Today, we don’t have that problem administratively.

Many courts already have waiver of filing fees.

Administratively, there can be a provision perhaps, an affidavit of merit.

If the indigent is represented by counsel that affidavit can be more thorough and more extensive.

There are provisions for recoupment in case of recovery.

There are provisions that the debt can survive.

There are penalties for perjury, that the cost would not be that high.

But Your Honors regardless of what the court does, I ask Your Honors to consider the other side of the claim, the cost and lost of personal freedom for an individual that doesn’t has his day in court is immeasurable.

The social cost to a society where there is no lack of respect to the judicial system is staggering.

It is the civil courts of the United States that an individual has the right to defend all things that dear to him, his life, his liberty and property.

And part of our Anglo American Heritage offense and equal justice on the law that it should be a meaningful concept and not a mockery.

I think the time is right for this Court to declare that a man’s right to be heard should not be dependent upon the size of his pocketbook.

And I would ask that the court consider going beyond a narrow reading of body and a broader reading of the Due Process Clause for initial access to the court to strike down all filing fees that is stand in the way of an indigent's right at least to get into court at the first instance.

Chief Justice Warren E. Burger: Mr. Finkel, you have emphasized now in this last -- the recent observation, at least three or four times, the initial access, the barrier to initial access.

There is no barrier to initial access in bankruptcy, is there?

Mr. Kalman Finkel: Yes, there is.

There is this barrier that a man will have to sign an affidavit that he will promise to pay $50 in six months that he may not be able to pay.

Chief Justice Warren E. Burger: But, he is in court, he is in court and has access when he signs that affidavit, isn’t he?

Mr. Kalman Finkel: He is in court, when he signs that affidavit, that will be totally meaningless on the empty promise --

Chief Justice Warren E. Burger: Now, that's meaningless, but you really haven’t denied in access.

You have furnished him away, just as in the Boddie the access was conditioned on an affidavit in all the courts, an affidavit of the proper posture?

Mr. Kalman Finkel: Well, Your Honor I define access to mean that the individual is in court and the relief he seeks he can obtain without any financial barriers.

That is the way I would define initial access to court.

The fact that he is in and he cannot receive any relief is to me meaningless.

First, he is not really in, the petition will not be considered at all unless he makes that promise and I am not sure, the very few debtors that will be willing to sign a sworn affidavit that within six months, they know they’re going to have $50 to pay.

Chief Justice Warren E. Burger: Well, isn’t a history of it in fact though that most indigent applications petitioners in bankruptcy do sign the affidavit now, the overwhelming majority of them?

Mr. Kalman Finkel: No, Your Honor, we don’t know and I checked with our law offices.

The thousands and thousands of people that were turned away.

You can only see the petitions before the court, the once that the people promise, but the thousands of poor people who are turned away by legal services offices because they don’t know that they will have a job and refused to sign that and there is no other way to be paid and they just don’t receive their discharge.

Once you’re in court, that is only a minored amount that the people who need a bankruptcy discharge.

There are thousands of other people who need this discharge, but do not receive it.

Chief Justice Warren E. Burger: Well, isn’t there a fact that the deficit that has being incurred or resulted the non-payment about people who have promised to pay?

Mr. Kalman Finkel: I would say no Your Honor.

I think it is just the added expenses.

It's $4.5 million, 1971, $2.5 million a few years ago.

I don’t think it has anything to do, not that much.

Chief Justice Warren E. Burger: You do not think that factor contributes to that deficit?

Mr. Kalman Finkel: Contributes, but negligible and not to override the individual's right to be there.

There is no statistics at all from the government showing in anyway what the loss would be.

There are none whatsoever.

We have waited for those statics in everyone of the briefs to show us in documentation.

What they have argued is that everybody who pays an installment will now come under forma pauperis, that may not be so.

In fact, in one of the companion case in the Southern District that we brought after we lost, the referee decided against us, the individual obtained the employment and now he promised to pay the fee.

Thank you.

Justice William H. Rehnquist: Mr. Finkel?

Mr. Kalman Finkel: Yes sir.

Justice William H. Rehnquist: Would you agree that your client probably cannot force Metropolitan to come in and defend the merits of its acquisitions against him in a bankruptcy court.

If Metropolitan doesn’t present evidence of fraud, that debt would be discharged along with all the others, but Metropolitan's failure to appear at all, for example, the res judicata against it in an action by your client, say for slander or some action of that sort?

Mr. Kalman Finkel: Absolutely not.

In fact that is one of the factors you would be looking for if Metropolitan has not come in, we did have a meeting of creditors and the creditor did not show up.

The only thing that now what stands in the way of the discharge is the fee.

We’ve gone through the entire period and the individual is unable to pay the fee.

Either he gets discharged or his petition gets dismissed.

That’s the state we're in right now, is this law suit.

And therefore, when he -- when in fact the Metropolitan did not come in and this debt is discharged, will give Mr. Kras an opportunity to possibly turn around and possibly sue them and use this as part of his proof.

Justice William H. Rehnquist: But, it is not an adjudication on the merits?

Mr. Kalman Finkel: No, it’s not an adjudication on merits, except that it has been discharged and they didn’t come into prove fraud.

That's the most, I think we can say about it.

Justice Potter Stewart: At least in your brief, there is any reliance at all of the statute.

Mr. Kalman Finkel: Well, in the lower court, we did Your Honor.

It was rejected.

Justice Potter Stewart: And they turn the -- the lower court turned it out.

Mr. Kalman Finkel: We feel that 1915 is very broadly construed.

There is -- where there is a specific statute versus the general statute of specific one covers and we do acknowledge that they did specifically overrule abolish forma pauperis --

Justice Potter Stewart: The statute came earlier, I know that forma pauperis statute goes away back, but -- there was a bankruptcy law back in the early 18th or 19th Century?

Mr. Kalman Finkel: But at the time they abolished forma pauperis for bankruptcy in 1946 or 1948, there already was 1915 on the books and they past what would the installing fees which all lower courts have considered it and we thought they were right, held that that covered the point and therefore bankruptcy is not within 1915.

Justice Potter Stewart: You are in a better position and I know this.

Has 1915 you have been given a very generous application --

Mr. Kalman Finkel: Yes, other than the bankruptcy discharge, I know of no other federal filing fee that doesn’t come within 1915.

Justice Potter Stewart: Both as a plaintiff as defendant?

Mr. Kalman Finkel: Both as plaintiff as defendant on appeal, both civil and criminally.

Justice Potter Stewart: In any kind of proceeding?

Mr. Kalman Finkel: Any kins of --

Justice Potter Stewart: And attainable in the federal court?

Mr. Kalman Finkel: Yes.

We’ve perceived at many times in various cases in social security to constitutional attacks and the whole spectrum of cases, we perceive 4% from 1915.

Chief Justice Warren E. Burger: Have you referred in your brief Mr. Finkel to any of the studies made, comparative studies made of filing fees, generally tracing the development from the time when the filling fee was – and the filing fees and aggregate were really important of the support of the court system down to the present date where it's negligible chiefly because the fees have remained static in a period of rising costs.

Do you have any of that in here?

Mr. Kalman Finkel: No, we don't have any of that in the brief.

The only thing that I refer to is the amicus curiae brief of the NLADA in Boddie versus Connecticut in which they have the breakdown of filing fee costs of all the states.

I mean which states have way over filing fees.

They have no -- they have been unable to find the classic articles, 50 years old the McGuire's and since then, the updating articles, I have been unable to find the real statistical breakdown.

But the amicus brief that we cite to in Boddie details what every state has done with respect to waiver of the filling fees and many states have given that relief either by constitutional law, common law, or statute or their own discretionary powers.

Chief Justice Warren E. Burger: I suppose as a matter of common knowledge, a $50.00 filing fee might have supported a particular clerk’s office 50 or 100 years ago and wouldn’t pay for the lights under present conditions?

Mr. Kalman Finkel: Today, the bankruptcy deficit is so enormous, I would say that it was negligible the relationship to the $50 fee.

It is $4.5 million, and 1969, it was self sufficient.

So you determine that in the last four years that has been increased deficit than the filling fee, I don’t think the responsibility because people have been paying the $50 for getting in.

So they have collected their fee and those who haven’t paid just didn’t get into the court until few District Courts declared the statute unconstitutional.

Chief Justice Warren E. Burger: Thank Mr. Finkel, thank you Mr. Korman.

The case is submitted.

Featured:

Huffman v. Boersen - Oral Argument

Thu, 23 Aug 2012 18:22:50 +0000

Case:

Huffman v. Boersen

Media File:

71-5097_19720419-argument.mp3

Related Transcript:

71-5097_19720419-argument

Transcript:

Argument of Leo Eisenstatt

Chief Justice Warren E. Burger: -- first this morning in number 71-5097, Huffman against Boersen.

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

Mr. Leo Eisenstatt: Mr. Chief Justice, may it please the Court.

This case is on petition for writ of certiorari from the Supreme Court of the State of Nebraska and involves in its essence a -- several questions involving the annulment of a marriage, a determination of paternity and the allowance or granting or the violation thereof the right to be present at trial.

These proceedings now before the Court commenced by the filing of a petition for annulment in the District Court of Hall County, Nebraska, Grand Island approximately in the middle of the state.

The defendant in that case, petitioner here Harold Eugene Hoffman was at that time incarcerated in the state penitentiary in Lincoln, Nebraska approximately a 110 miles away.

Throughout the proceedings, Mr. Huffman appeared pro se until the appointment of counsel by this Court in response to his request for a writ of certiorari.

The essential facts, as we view them, would be that on March 5, 1969, these two parties, Harold Eugene Hoffman and Faye Boersen were married in Las Vegas, Nevada.

At that time, the parties had been living in Hamilton County, adjoining Hall County in a small town known as Giltner, Nebraska.

At that time, there was -- there had been filed by Faye, a petition for divorce from a marriage contracted according to the record with Richard A. Boersen and with respect to whom there were two children at that time of the marriage.

Now the, and I will get into the facts in a little more detail, the petitioner's view of the issues in this case are in two general areas, and that is, was the equal protection of the laws violated with respect to the petitioner by reason of the dismissal of his appeal in that annulment case by the Nebraska Supreme Court because he failed to file a $75 cost security, bond or cash in lieu thereof, and secondly, were his rights to be present at the trial violated when he was incarcerated at the state penitentiary at the time of the trial.

The facts are not in dispute and although there are lengthy pleadings on file, a distillation of those facts in our opinion could not make the facts very complicated.

Now, before referring to these additional facts, I would like to footnote Nebraska provisions dealing with the matter of appeal.

Since its founding, the State of Nebraska has had in its Bill of Rights, a provision, guaranteeing right of appeal in all civil cases.

Article 1 Section 24, provides the right to be heard in all civil cases in the court of last resort by appeal, error or otherwise shall not be denied, and as announced by a long line of Nebraska cases, more particularly as it applies to this case and we've cited in our brief, the case of Ferber versus Leise which held that this right of appeal exists irrespective of the merits or the lack thereof in the court or in the record.

In other words, they take the position that our Supreme Court should not consider a case until it's been properly presented and not try to anticipate whether or not the appeal is frivolous or has some substance.

Now the records shows that Faye had been married to or entered into a marriage ceremony with Richard Boersen in June of 1964.

And she had filed an action for divorce, well, there were two of them, but the one involved is in February of 1969 and that action Boersen had filed a counter suit.

Then on March 5, as I stated, she married the petitioner in Las Vegas, Nevada.

And about a-month-and-a-half later, April 24, a divorce decree was entered.

In October of that year, 1969, she gave birth to a child, a child which the petitioner claims paternity and is also one of the issues involved in this case.

Now, in November 1970, Faye filed the petition for annulment in the Hall County district court.

Huffman was incarcerated in the state penitentiary on November 9.

The sheriff of Lancaster County pursuant to our local procedure served the summons.

He was allowed in to serve the summons on the petitioner and service in written was made of that fact.

In the pleadings that followed as I said all filed by Huffman pro se, by the way Mr. Huffman is the inmate's legal assistant at the Nebraska penitentiary.

A review of the record in this case would indicate some expertise and knowledge on his part that might not be possessed of an ordinary layman.

Now, among the pleadings filed, he raised the issue of denial of her right to annulment.

He raised the issue and claimed the right to be found -- the father of his child born in October 1969 and he also demanded in several pleadings the right to be present at any trial.

He also advised the court that he was without funds and had no counsel.

Now, the record is undisputed that about that time, Mr. Huffman had approximately a $114 of resources and this has been stipulated and admitted.

The case as I said was filed in November, in March of 1971 Faye's attorney ex parte asked the court to set the case for trial, which was perfectly in line with local procedure.

The case was set for trial on March 26. Huffman was given notice of that trial, again by the sheriff of Lancaster County, who served this upon him on March, 22.

On that same day, Mr. Huffman wrote a letter to the judge, which appears in the Appendix at Page 48, stating that he had just received this service which was four days prior to the trial, that he had no counsel, and again, renewed his demand to be present.

Now, in a prior document, which he filed, called a motion for appearance, he had advised the court of the same facts and further advised the court that all it took was a simple order by the court to have the warden produce Mr. Huffman at his trial on the annulment in Grand Island.

On March 26, the trial took place and a decree or order of annulment was entered.

Huffman's pleadings were all dismissed, held for naught.

On April 9, Huffman filed his notice of appeal and this is all in accordance with Nebraska procedure and he paid a $20 docket fee which is also required by our statute.

He also filed praecipes for the preparation of a transcript, preparation of a bill of exceptions, which were prepared; the transcript by the clerk, the bill of exceptions by the court reporter and these all appear in the Appendix.

Now Section 25, 1914 of our Nebraska statutes among other things requires that the cost security of $75 be filed.

Now our Nebraska statutes have, I think, as most states do requirements which must be followed in order to lodge an appeal in the Nebraska Supreme Court.

The notice of appeal and the $20 docket fee are denominated as jurisdictional.

Justice William O. Douglas: Was there any argument before the Supreme Court of Nebraska?

Mr. Leo Eisenstatt: No, Your Honor.

Justice William O. Douglas: This was all on the papers?

Mr. Leo Eisenstatt: This was all on documents.

Well, I wish to withdraw that.

Mr. Dowding did appear at the argument in the Supreme Court, but Mr. Huffman did not, he was in the penitentiary.

I haven't got into that point, but in the Supreme Court the --

Justice William O. Douglas: Was the Boddie versus Connecticut argued to the --

Mr. Leo Eisenstatt: No sir, it was raised however by Mr. Huffman in his pleadings.

Now as I said, he filed the praecipes, he filed a notice of appeal and the $20 docket fee.

Statute requires within 30 days of that date, the cost security to be filed.

On May 19, Faye's attorney filed a motion in the Supreme Court of Nebraska to dismiss the appeal for failure to file the cost security.

Justice Harry A. Blackmun: Mr. Eisenstatt, as a matter of practicality, how much protection is a $75 bond in Nebraska practice?

What is the average -- what do the average cost amount to, in excess of that?

Mr. Leo Eisenstatt: Very much in excess of that, Your Honor.

My own personal experience say, even a small brief is over $200, and most of the time there are $300 and $400 present prices.

Now the Supreme Court has a rule which provides for reimbursement at $2.60 of pay which comes to $195.

Justice William H. Rehnquist: Could the appellee tax the cause of his brief in the Supreme Court of Nebraska?

Mr. Leo Eisenstatt: He can -- the winning party in the appeal gets reimbursement for 75 pages x $2.60, which is taxed as cost.

Only the appellant however must file a cost security.

Justice William H. Rehnquist: And the purpose of the cause found in nearest to the benefit and of the other party, the appellee in this case?

Mr. Leo Eisenstatt: That's right, because the statutory cost as far as the state are concerned in an appeal are taking care of the $20 docket fee.

Chief Justice Warren E. Burger: What is the actual cost of printing a brief per page out in Omaha and Lincoln?

Mr. Leo Eisenstatt: In excess of $3, three and a quarter.

Sometimes -- and now up to four, depending on which printer, at least in Omaha.

Chief Justice Warren E. Burger: I see, so it could rule on $2.60 a page is reasonably modern.

Mr. Leo Eisenstatt: Very modern.

Chief Justice Warren E. Burger: But, what about the $75 statute that Mr. Justice Blackmun raised.

How old or new is that statute?

Mr. Leo Eisenstatt: That statute has been on our books since the turn of the century.

Justice Harry A. Blackmun: Now that we've interrupted you --

Mr. Leo Eisenstatt: No, that's quite right.

I would like to respond to the questions as they're raised.

Now to fill you in --

Justice Harry A. Blackmun: Could I ask one more then --

Mr. Leo Eisenstatt: Yes.

Justice Harry A. Blackmun: Somewhere in here, I have the impression that there is a statement that relief from printing cannot be obtained in the Supreme Court practices, is this a rule in your state?

Mr. Leo Eisenstatt: There is a provision, Your Honor, in the rules of the Nebraska Supreme Court, which provide that the Rule 9 (a) of the Supreme Court which is quoted on page 5 of our brief provides in part, all briefs shall be printed unless otherwise allowed by the court on good cause shown.

Justice Harry A. Blackmun: Well, I think perhaps in the opposition's papers, there was an intimation at least that she had to have her briefs printed and could get no relief and I wondered about the accuracy of that statement?

Mr. Leo Eisenstatt: I would agree with that statement based upon the background and experience of our court, our Nebraska court to date.

The provision for waiver or some kind of amendment that that refers to.

I have no knowledge of any case where that has been waived or there has been any change about it or even a provision for paying it on the installment plan, for example, or provided -- well, they wouldn't be for payment on the installment, it would be up to the printer and the petitioner or the appellant.

But the waiver of that or the right to provide typed briefs has not to my experience been permitted and in my own knowledge as far as the Bar Association is concerned, we've attempted on several occasions to get that rule amended without success.

That, of course, is outside the record.

When Faye's attorney filed the motion to dismiss appeal for failing to supply the cost security or Huffman was given notice by mail and he at that time filed an objection, the document entitled the objection.

He filed a motion to proceed in in forma pauperis.

He filed an affidavit and also filed a motion to stay the mandate but the court ruled against him so that he could lodge a petition for writ of certiorari in this Court.

The appeal was dismissed without opinion, just an order entered in their journal.

And on June 14, there was a hearing at which Faye's attorney was present and I might advise the Court that at the time involved Mr. Huffman had ordered a brief from the Gant Publishing Company in Lincoln, Nebraska at a cost of $88.58, which had to be paid in advance.

So after he paid the $20 docket fee and after he had paid the printer, his $88.58, he had less than $5 left to his name which is set forth in his affidavit.

The money that he --

Justice William H. Rehnquist: Mr. Eisenstatt, do the Nebraska decisions indicate that dismissal is automatic upon failure to file the $75 bond or does the Supreme Court on occasion exercise some sort of discretion?

Mr. Leo Eisenstatt: There is no case in the state where a waiver has been granted.

There are one or two decisions only, Your Honor, that have ruled on this and other requirements and all have been to the effect that these are reasonable requirements and that the appeal be dismissed.

Justice William H. Rehnquist: So, so for as Nebraska law is concerned, the failure to file a bond would be an automatic ground for dismissal?

Mr. Leo Eisenstatt: Although it isn't classified as jurisdictional, as the notice of appeal and the $20 docket fee, it has the same effect.

You are dismissed from your appeal if you do not comply with it.

And there has been at least one case where a dismissal has occurred because of this.

There are very few decisions, one or two at the most.

Now the rule involved in this case and for which petitioner seeks redress at this Court stems mainly from the rule in Boddie versus Connecticut, decided by this Court in March of last year.

The Court in Boddie, this Court in Boddie was careful to announce that it was deciding the case only on the basis of the fact that it was a marital situation, allowance of an indigent to file a divorce petition, and because the state exercised control over it, the marital relationship in its dissolution, it held that this case then merited the application of the rule that had long been in effect with respect to criminal cases.

Now on that basis alone, we have a similarity here in our Huffman case.

We have an annulment and a matter of determination of paternity.

The issue, of course, goes one step further and that is the matter of appeal and it is petitioner's opinion that the rule of Griffin versus Illinois, decided in 1956, is applicable here and also the cases which have followed Griffin.

Griffin held that an indigent in a criminal case was entitled to have a transcript furnished by the state, if he could not afford it in order to provide him with an appeal.

As the court pointed out, appeal is not required, but if the state allows appeals as a general practice and in its rules and procedures, then it cannot as a matter of equal protection of the law deny the same rights to indigents.

And there have been a host of cases following Griffin in the criminal field and the rule has been amplified, for example, in Williams versus Oklahoma City decided in 1969 by this Court, extended the Griffin rule to a quasi-criminal case which was a violation of the city ordinance, 90-day jail sentence and a small fine.

It also involved the issue of free transcript.

And then in December of this year, in Mayor versus Chicago, this Court extended the Griffin rule to a misdemeanor case which involved a fine only.

And based upon Boddie, which extended the right of access to the courts in a marital situation, we feel mandates, the application of Griffin and its progeny to this case.

Justice William H. Rehnquist: Mr. Eisenstatt, do you see any legal significance in what at least appears to be a factual distinction here that this bond is not something that goes to pay for something that the appellant has but is to reimburse the other party for an expense that they have incurred?

Mr. Leo Eisenstatt: Yes I realize, this is a distinction, but if in our opinion this is a distinction without a difference.

First of all, it is state action.

Secondly, it is a minimal protection.

Thirdly, it makes no difference as we see at whether this -- the cost requirement in the handling of a case is to pay a fee which is state action or to pay a printer which again is individual action or to pay a cost security.

Now in Lindsey against Normet which was just recently decided by this case the -- I think this Court has answered that question, and we must keep in mind in Lindsey, that there were two --

Justice Byron R. White: Which way did we decide it?

Mr. Leo Eisenstatt: You decided that the double appeal was not valid and put as a matter of equal protection of the law cannot be imposed upon attainment.

Justice Byron R. White: Or the double bar I guess?

Mr. Leo Eisenstatt: Yes.

Justice Byron R. White: But didn't we decide that the litigant could be forced to protect the landlord against loss of rent?

Mr. Leo Eisenstatt: That's right but there was --

Justice Byron R. White: Protect the landlord against loss, so he would have to pay money in the court, to protect the landlord against the loss --

Mr. Leo Eisenstatt: But there the Court was addressing itself protection of property that is the tenant was occupying the --

Justice Byron R. White: Well, it was protecting the landlord against the financial loss from the litigation?

Mr. Leo Eisenstatt: Well, but it did not address itself -- we're talking about the initial, the payment or requirement of paying rent during the pendency of the action.

Justice Byron R. White: That's right, and the court yeah, and the only reason to do was protect the landlord from economic loss?

Mr. Leo Eisenstatt: But it applied to a particular situation Your Honor, it dealt with property that the tenant was occupying, it was this case and the matter of cost are not opposite, I mean are not consistent or the same.

There you have the protection or as the rule stated protection of the property as a landlord, or to protect a judgment secured, you don't have that here.

Justice Byron R. White: So you say it's just not unconstitutional or that it's unconstitutional for the state to insist that litigants protect those who may sue against the cost the parties will incur --

Mr. Leo Eisenstatt: Well at least --

Justice Byron R. White: -- where the plaintiff at least as an indigent?

Mr. Leo Eisenstatt: That's right, if it denies him access to the courts and this has already been the Court's position in Boddie.

There was no requirement to there so far as protecting the other party and here in Boddie there was a waiver of the filing fees which the state mandated as well as what the sheriff required.

Justice Byron R. White: You think the state would also have to relieve non-indigents from the obligation to pay the other party's cost?

Mr. Leo Eisenstatt: Not necessarily, and there is another thing Your Honor, I would like to point out in that regard.

In the filing of the original petitions, State of Nebraska does not require a bond to protect the defendant, if the plaintiff loses and the appeal, only the appellant must file this.

There is no cost security given to the appellee.

Justice William H. Rehnquist: Isn't that a fairly common practice among all the states though to say that once that litigation has been come to a decision in the trial court that then the burden shifts and effects so far as securing costs?

Mr. Leo Eisenstatt: Yes, it's very common and it is a -- and we do not attack the essential validity of that, we agree that this is a valid exercise of state rights.

But when it prevents the indigent from coming into court or getting a rights of appeal without any regard to their merits then it is an invidious discrimination which the Constitution prescribes.

Justice Thurgood Marshall: Well, couldn't they allow both sides to proceed on typewritten papers under that rule?

Mr. Leo Eisenstatt: They could Your Honor and that was suggested Mr. Dowding in his answer brief.

Justice Thurgood Marshall: What evidence you are arguing with that, if they had done that you wouldn't have the argument, would you?

Mr. Leo Eisenstatt: Well then there wouldn't be a need for a cost security either because the only purpose of the cost security provides in the --

Justice Thurgood Marshall: But that's my whole point.

If they allowed for both sides to proceed on typewritten papers, the problem wouldn't arise because they wouldn't dismiss it then, would they?

Mr. Leo Eisenstatt: No Your Honor.

Justice Byron R. White: But they did.

Mr. Leo Eisenstatt: They did.

Justice Byron R. White: (Inaudible)

Mr. Leo Eisenstatt: Right, but the court does not permit the filing of typewritten briefs in the State of Nebraska.

Justice Thurgood Marshall: Well, I thought the rules said under extreme circumstances or something they would?

Mr. Leo Eisenstatt: I know that the rule says that Your Honor, but I know of no case where the court has ever done it.

Justice Thurgood Marshall: Well, my whole point is that the court had a choice it seems to me of exercising its discretion under its own rules, not to print, and if they exercised that discretion, there would be no need for the security bond?

Mr. Leo Eisenstatt: That's right, the only thing that the bond protects is the brief printing cost of the appellee.

Justice Byron R. White: Well did you ask for a waiver?

Mr. Leo Eisenstatt: My client did not, Your Honor.

He asked to proceed in forma pauperis in a general way without specifically referring to this provision.

Justice Byron R. White: Without specific, they were asking for waiver to the customer.

Mr. Leo Eisenstatt: Right, he asked generally for the right to proceed in forma pauperis.

Chief Justice Warren E. Burger: Is it possible then that this case comes down to a claim of abuse of discretion by the Supreme Court of Nebraska rather than constitutional issue?

Mr. Leo Eisenstatt: I would say no Your Honor, on the basis of the experience of the Nebraska Court did not ever varying from its rule requiring printed briefs.

Chief Justice Warren E. Burger: But the rules permit them to do it.

Mr. Leo Eisenstatt: They could.

Yes Your Honor, they could.

Chief Justice Warren E. Burger: So that there would be no problem if they had been excer -- if they had been asked to exercise their discretion to waive and had granted the request, is that correct?

Mr. Leo Eisenstatt: No, as to the cost bond there is no discretion, as to the printing of the briefs there would be.

Chief Justice Warren E. Burger: But if there is no printed brief, do they need the cost bond?

Mr. Leo Eisenstatt: Well the statute, 29 -- 25-1914 does not give them that discretion, it's an evidence.

Chief Justice Warren E. Burger: But what if a motion had been made?

Suppose you had been there, you would have made such a motion I am sure and then assume for the moment what we do not know and that is that the Supreme Court of Nebraska would grant the waiver of printing and you were allowed to file type written briefs, would you then need cost bond?

Mr. Leo Eisenstatt: No, Your Honor, you would not need a cost bond, but the statute does not give that discretion.

Justice William H. Rehnquist: Emotion is a kind of an odd one, that we're talking about basically whether it be the appellant more than that the appeal be permitted proceed on a type written brief?

Mr. Leo Eisenstatt: Right.

Chief Justice Warren E. Burger: Well, his emotion might will be that both parties I had assumed in my hypothetical that your emotion would be that both parties be permitted to do so first for your client's problem and second you relieve him of the need to file the bond?

Mr. Leo Eisenstatt: Your Honor, the only way that I see that the Nebraska Supreme Court could have done that would be have been to have deny the application of a statute, there is no discretion in that statute.

They would have had to do it on the base of constitutional issues --

Justice William J. Brennan: Are you saying Mr. Eisenstatt that even where they do waive the requirement for printing the briefs, even where they do that for both parties, the bond would still have had to be filed even though they have been never -- since they have been filed, and not printed, there would be no occasion ever to pay any bonds?

Mr. Leo Eisenstatt: That's right.

Justice William J. Brennan: What is this bond?

Is it a cash bond or what bond is it?

Mr. Leo Eisenstatt: It can be a secure surety bond or cash security in lieu thereof.

Justice Byron R. White: Well, is there a bond that when you file it, does it automatically collected on, and say the appellant files it and loses?

Mr. Leo Eisenstatt: Yes sir.

Justice Byron R. White: What happens to it then?

Mr. Leo Eisenstatt: If the appellant, the loosing party does not pay the brief cost is $2.65 --

Justice Byron R. White: So it's not a -- $75 dollars automatically, does it go to the appellee?

Mr. Leo Eisenstatt: No Your Honor, it's only if he doesn't pay the taxation of costs that are included in the mandate.

Chief Justice Warren E. Burger: And he could not actually cost unless there was a printing as distinguished from a type writing?

Mr. Leo Eisenstatt: Right Your Honor.

Chief Justice Warren E. Burger: Well, is it not possible to construe that, not for us, but for the Nebraska Supreme Court to construe its own statute as meaning that the waiver of printing would permit a waiver of the filing of the $75 by bond or cash?

Mr. Leo Eisenstatt: I see no discretion allow the court, it's an absolute requirement in the statute.

Chief Justice Warren E. Burger: And the statute would require them to do a useless thing and you think the Supreme Court of Nebraska would probably construe it that way as nearly as you can judge now?

Mr. Leo Eisenstatt: I would assume sir that it would.

Justice William J. Brennan: Incidentally it costs to get the briefs typed as well as printed?

Mr. Leo Eisenstatt: Yes Your Honor.

Justice William J. Brennan: And suppose the appellee -- the appellant loses, does the cost bond go to reimburse the appellee for the cost of typing when he submits a typed brief?

Mr. Leo Eisenstatt: All that the statute says is that it is conditioned that the appellant shall pay all costs adjudged against him in the Supreme Court without specification.

Justice William J. Brennan: Well might --

Justice Thurgood Marshall: Has Nebraska ever decide in a real close case that side bears its own costs?

Mr. Leo Eisenstatt: Yes sir, it had well --

Justice Thurgood Marshall: What happens to the $75 then?

Mr. Leo Eisenstatt: Then it would not.

Justice Thurgood Marshall: The state keeps it, I get it.

Mr. Leo Eisenstatt: Well no, it's released.

Justice William J. Brennan: To get a surety bond, what's the premium?

Mr. Leo Eisenstatt: It would be a minimum of $20.

Justice William J. Brennan: For $75 bond?

Mr. Leo Eisenstatt: Minimum, in some cases there are some companies that do permit a $10 fee, but it's a minimum up to $1,000.

Justice Harry A. Blackmun: Are there any statutory costs as such to in your Nebraska practice?

Mr. Leo Eisenstatt: None other than the $20 docket fee which must be paid in advance.

Chief Justice Warren E. Burger: And he did pay that?

Mr. Leo Eisenstatt: Yes, Your Honor.

Chief Justice Warren E. Burger: Out of the 114 that you said he had in his pocket?

Mr. Leo Eisenstatt: Yes.

He paid $20 to the state for his docket fee and $88.58 to the Gnat Publishing Company of Lincoln.

Justice Harry A. Blackmun: Does the appellee pay docket fee also?

Mr. Leo Eisenstatt: No he pays a $5 appearance fee, thank you, Your Honors.

Chief Justice Warren E. Burger: Thank you Mr. Eisenstatt.

Mr. Dowding.

Argument of Vincent L. Dowding

Mr. Vincent L. Dowding: Mr. Chief Justice and may it please the Court.

I would like to address myself to two points that were raised in the questioning.

First of all, the statute involved as I read it does permit discretion.

Page 5 of respondent's brief quotes this statute and it says that the appeal maybe dismissed on motion and notice in the Supreme Court that no bond has been given and certified in the transcript or within such additional time as maybe fixed by the Supreme Court for good cause shown.

So that even the failure to file this bond or undertaking and it can be cash, would not necessarily be an automatic dismissal.

So there is discretion here, but I am assuming as is Mr. Eisenstatt that they did dismiss this simply because the money was not posted.

Justice William H. Rehnquist: Do you disagree with Mr. Eisenstatt's statement that the Nebraska case law indicates that dismissal will follow virtually automatically?

Mr. Vincent L. Dowding: I respect his decision on that, but you can't tell from the record why they dismissed it here, but I think we all are assuming it was because he didn't come up with the $75.

I would like to address myself to a question Mr. Justice Douglas raised with reference to whether or not the Boddie case was raised in the Nebraska Supreme Court.

My colleague Mr. Belcher argued that motion for dismissal in the Nebraska Supreme Court, and I was informed and it was our point that the Boddie case is distinguishable herein because the purpose of this bond statute and urged to the benefit of a private litigant and not to the state.

Now there was no written opinion issued by the Nebraska Supreme Court when they dismissed.

I don't know but that basically was the only argument that was made because Mr. Huffman did raise that case very well in his objections to our motion to dismiss.

Justice William O. Douglas: As long as it's a state action, I don't suppose that would make any difference as to what the purpose of it may have been?

Mr. Vincent L. Dowding: No, I really don't whether they went off on that ground or not.

I think as Mr. Eisenstatt said it's --

Justice William O. Douglas: Are there any other decisions of the Nebraska Supreme Court on this

Mr. Vincent L. Dowding: No.

No, there isn't Your Honor.

It is our basic contention that the statute which barred held Huffman from an appellate hearing is constitutional for the basic reason that it gives the respondent herein Faye Boersen financial protection on appeal and is therefore not in violation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Justice Byron R. White: Could I ask you a question?

There is no appeal, there is no enactment test in Nebraska which -- and if that statute had been in effect, you wouldn't be here?

Mr. Vincent L. Dowding: No it would cover its past and --

Justice Byron R. White: And would you think -- is that act-- would that act be applicable or of any relief if this case were remanded for reconsideration in the light of that statute?

Mr. Vincent L. Dowding: Well if it were remanded for reconsideration, I would file a motion to proceed pursuant to that statute and then the question would be whether or not they would apply a retroactive;y?

Justice Byron R. White: What does it say?

Well it is retroactively, here a case that isn't final yet?

Mr. Vincent L. Dowding: But the problem is Your Honor is that new statute says that before you can proceed in forma pauperis on appeal, the Trial Court must say that the appeal is taken a good faith, so they may not apply it to this specific case.

But they do have --

Justice Byron R. White: Well, that would be -- that would may raise another question, but not this one?

Mr. Vincent L. Dowding: Yes, they could it and we'd certainly ask them --

Justice Byron R. White: I mean the statute -- if there is a statute, on its face.

Mr. Vincent L. Dowding: Covers it.

Justice Byron R. White: What?

Mr. Vincent L. Dowding: It covers it Your Honor.

It says that --

Justice William J. Brennan: Is that new statute?

Mr. Vincent L. Dowding: Yes and it's in affect now, passed --

Justice William J. Brennan: Is it in your brief?

Mr. Vincent L. Dowding: Yeah it's attached as an appendix to my brief.

Justice Harry A. Blackmun: As a matter of fact the statute was past pursuant or as a result of the grant of cert in this case, was it not?

Mr. Vincent L. Dowding: I don't know Your Honor whether it was or not.

I wouldn't be surprised.

But it is now in effect and we would make every attempt to proceed pursuant to that statute in order to save the expenses, because my client is also a a pauper.

Justice William H. Rehnquist: I suppose the Supreme Court of Nebraska, if this case were remanded might in term remand to the trial court for appropriate findings to whether the appeal were taken in good faith?

Mr. Vincent L. Dowding: Yes they certainly could.

With reference to the Due Process Clause and its application here we attempt to distinguish the Boddie case and say that it does not stretch to reach this case at bar.

We say this for two basic reasons and here I am just attempting to address myself to the Due Process Clause only.

In the Boddie case, the Court was very careful, too limit it to its facts and it was careful to state that it was not a holding that in some cases access to courts cannot be denied.

Chief Justice Warren E. Burger: Would you distinguish annulment from the divorce in terms of the basic approach of the Boddie case?

Mr. Vincent L. Dowding: No, I do not.

Chief Justice Warren E. Burger: State has exclusive control of each?

Mr. Vincent L. Dowding: I do not distinguish it to --

Chief Justice Warren E. Burger: You distinguish the initiation of the suit in Boddie from the right to an appeal?

Mr. Vincent L. Dowding: Yes, that's right Your Honor.

It's our theory that the right to appeal is not a fundamental right as defined in the Boddie case, under the Due Process Clause because as I understand the law, the Due Process Clause does not require a state to afford an appeal and therefore we argued from that that the right to appeal is not a fundamental right as defined by Boddie.

Justice Thurgood Marshall: But it is a right under the law of Nebraska, it's an absolute right, it's not a discretion as a right?

Mr. Vincent L. Dowding: No it isn't, but under the Nebraska law, the right to put some requirements on it is also specified and we would further state that the due process is --

Justice Thurgood Marshall: Is that specified in the constitution?

Mr. Vincent L. Dowding: No that's case law.

Justice Thurgood Marshall: The Constitution says that you have an absolute right to appeal in a civil case?

Mr. Vincent L. Dowding: That's right Your Honor, it does.

The only way we can distinguish that is saying that we're talking about the federal fundamental right under the Due Process Clause, that's the only way I can distinguish that I feel.

Justice Thurgood Marshall: And how do you distinguish?

Mr. Vincent L. Dowding: What?

Justice Thurgood Marshall: Just by saying Federal Due Process law doesn't help me, how do you say that that's not a part of the procedure?

Mr. Vincent L. Dowding: I am sorry Your Honor, I didn't hear you.

Justice Thurgood Marshall: Isn't that just integral part of proceeding as original trial where it's a matter of right?

Mr. Vincent L. Dowding: I will concede that, except that under the case law at the time this particular statutory requirement had been held to be valid.

Now --

Justice Potter Stewart: Valid under your Nebraska Constitution?

Mr. Vincent L. Dowding: Yes, that's right.

Justice Potter Stewart: The Supreme Court's decisions had said that that's this legislature could put conditions on it.

Mr. Vincent L. Dowding: That's right.

Justice Potter Stewart: Including this one.

But certainly my brother Marshall is right in the implication of his question, is he not, that a domestic relations actions such as this, under Nebraska law as it is is not final one way or the other until the appeal process has been decided.

Mr. Vincent L. Dowding: That would make -- perhaps that would then make the right to appeal in Nebraska a fundamental right under Boddie, perhaps my distinction would not be valid.

Justice Thurgood Marshall: Well, what you say is Nebraska says you have an absolute right to appeal in any civil case, if you have $75?

Mr. Vincent L. Dowding: That's what it amounts to Your Honor in Nebraska, that's right.

And the reason --

Justice Thurgood Marshall: That squares with the Federal Constitution?

Mr. Vincent L. Dowding: We feel that it does.

We feel that the Boddie case is distinguishable basically because this particular cost bond requirement is for the benefit of a private civil litigant and does not go into the state coffers.

Now in the Boddie case, there were two policies set up by the state of Connecticut, two reasons; one to recoup the cost and two to deter frivolous litigation.

Justice Thurgood Marshall: And ought to be correct to recoup part of the cost?

Mr. Vincent L. Dowding: Yes, it's right Your Honor.

Justice Byron R. White: Well isn't that equal protection for other parties to make sure that the action isn't frivolous?

Mr. Vincent L. Dowding: I agree that the policy behind this statute, one of which is --

Justice Byron R. White: Or it isn't any longer, the policy of the state anyway?

Mr. Vincent L. Dowding: I feel that it is still one of the policy for this particular statute to deter frivolous appeals.

I don't rest on that distinction.

I rest on the distinction that the state, this is a reasonable purpose a constitutional permissible purpose for state legislatures to protect civil litigants on appeal, such as in Lindsey against Normet.

Justice Byron R. White: But the -- that isn't the policy of the state of Nebraska anymore, is it?

Mr. Vincent L. Dowding: No, not now, nit in forma pauperis.

So that distinguishing Boddie on the policy grounds we feel that it's different that the state has power to protect the private civil litigants on appeal.

We feel that that distinction alone lightens the impact of Boddie as (Inaudible) under the Due Process Clause.

Now with reference to the Equal Protection Clause, and that's Griffin versus Illinois and the cases that have followed it, to my knowledge the Griffin case has not been applied to a civil litigation on the appeal level.

We attempt to go to some standard tests under the Equal Protection Clause to determine whether or not this particular legislation is valid.

Is the purpose of the statute constitutionally permissible and two, is the statute rationally set up to reach that means.

Now, in Lindsey against Normet, the Court said that at least on its face the standard bond requirement in there was constitutional.

So we feel that it is constitutionally permissible for a state to setup this type of financial protection in civil litigation.

Justice Thurgood Marshall: Do you know of any bonding company in Nebraska that give a bond to a prisoner in the state penitentiary?

Mr. Vincent L. Dowding: No, I agree that Mr. Huffman was indigent and when was unable to make this bond because of his poverty.

Justice Thurgood Marshall: Suppose the case came in the equity court or some court of Nebraska and it seized all of the money that man had, every dollar he had in the bank, his house, his clothes, his car and everything and he wanted to appeal?

Mr. Vincent L. Dowding: I think you might have a different case.

Justice Thurgood Marshall: Why?

Mr. Vincent L. Dowding: I think you have got to judge each case when you have -- when you are at the appeal level unlike Boddie, when you are at the appeal --

Justice Thurgood Marshall: Well, my case is that if we agree that in violation of the Fourteenth Amendment of the Constitution, the court gave all of this to the plaintiff in the case and left the defendant broke.

The defendant has no regrets at all if he broke?

Mr. Vincent L. Dowding: That's right, that's exactly right.

Justice Thurgood Marshall: And that also squares up for --

Mr. Vincent L. Dowding: Well, this is where I am asking the Court to draw the line.

I am not going to object to appellate fees that are set up and going to the state treasury and I think it's a fairly fine line, and I'll admit that but I feel that when you judge this legislation against the Equal Protection Clause that the state does have the right to protect private litigants.

And I think the state can come in and say probably that the appellee also has to post a bond on appeal.

I mean --

Justice Thurgood Marshall: It posted a cost bond, they just say a $75 bond?

Mr. Vincent L. Dowding: Yeah, no it's a cost bond.

Justice Thurgood Marshall: Well, if the case involved 14 constitutional points and $16 million and the brief cost $4,000 and 75 bucks.

It is a very simple point and it required 6 pages of brief in, $75.

Mr. Vincent L. Dowding: That's right, in some cases perhaps this statute is not adequate, perhaps we need more protection, but again get back to the point and that is the line that the respondent is asking the Court to establish at this point.

When a state establishes, reasonable, financial requirements to protect private litigants in civil cases, then it is constitutional.

That's the line we ask you to draw, and I am willing to concede the $20 docket fee because I don't think the state's policy -- I think in Boddie the court pointed out, that the state's policy in recouping part of the cost does not outlay this right to access.

Justice Potter Stewart: Well, ironically he paid the $20?

Mr. Vincent L. Dowding: Yes he did, and he also paid for the printed brief.

Now, I don't know if he were to come in and move to, ask for a type written brief, whether it would or not have been granted, but if he could have got a type written brief then he would have had enough money to make the bond and that's the problem, but he just came down to this last point and couldn't come up with the money.

Chief Justice Warren E. Burger: Do you agree that Nebraska's Supreme Court could not waive the filing of the $75, if they waive the printing of the brief?

Mr. Vincent L. Dowding: I think they could waive them both.

Chief Justice Warren E. Burger: You disagree with your friend?

Mr. Vincent L. Dowding: Yeah, well under on the face of the statute they are both discretionary.

Justice Byron R. White: It's like as if they just never had?

Mr. Vincent L. Dowding: They never have --

Justice Byron R. White: And they didn't in this case?

Mr. Vincent L. Dowding: I differ to Mr. Eisenstatt.

He says it, I believe it on this point, he has had more experience than I have.

Justice Byron R. White: Well, what would you -- would you say the same thing if a plaintiff in the trial court he not only really has to pay his docket fee but he has to file a cost bond to protect the defendant?

Mr. Vincent L. Dowding: As Cohen versus Beneficial Industrial Loan Company Your Honor and the question is would that case be decided different today if that plaintiff were broken that case.

Justice Potter Stewart: Well, or would it be decided differently if it were a domestic relation?

Mr. Vincent L. Dowding: Well, this is right if the Court of course follows this line of marital relations being the crucial line here of course then they wouldn't --

Justice Potter Stewart: Would it be decided differently if it were litigation that could not be settled but that the only state could determine that status of a marriage or paternity of a child.

Mr. Vincent L. Dowding: That's basically where we are at on this Huffman versus Boersen.

Justice Byron R. White: Then you would say the same thing if the state required him to post a bond to get into the trial court to pay the defendant's attorneys fees.

Mr. Vincent L. Dowding: I would, I think that the state, again if they are protecting a private civil litigants and it's got some reasonable basis in fact to the purpose they are trying to accomplish.

Justice Byron R. White: And you would say the same even if admittedly the case was not frivolous?

Mr. Vincent L. Dowding: Yes I would.

Here's what would happen in the Lindsey versus Normet.

Let's suppose that all he had was the standard bond requirement there and the tenant was absolutely broke and had a meritorious appeal, then you would have basically the same question you got here except that it's outside the scope of domestic relations.

And it would be my contention in that case that, that standard bond requirement would be valid even though it denies access because it's set up as a valid state purpose to protect the private litigant.

Chief Justice Warren E. Burger: Mr. Dowding, do you think it would be an appropriate solution of this case if the Court were to decide to remand it to the Nebraska courts and let them reconsider the whole problem in light of the new statute?

Mr. Vincent L. Dowding: I do, I certainly could not object because the purpose behind this appeal statute was to give my client financial protection.

If I were given permission to file a type written brief without coming up with the cost, I could not complain.

Mr. Huffman would then have a hearing and my client would have the same protections she had under the statute and that's the alternative relief that I ask.

I do feel however that if the Court reverses and holds this statute unconstitutional that you have thereby probably unless you stick to domestic relation situations granted an indigent a free pass on basically all litigation, because it's a lot tougher I feel -- it's easier to say that the state can afford to absorb the loss and that's not a valid purpose to reimburse the state treasury.

But I think it's a lot harder to say when you have got two individuals and they are protecting one litigation that that's unconstitutional.

I feel that once you say that, that's it's unconstitutional in this case that really I think about all financial requirements are out as far as an indigent is concern unless you stick again to the domestic relations area.

Justice William H. Rehnquist: Suppose your case here is somewhat stronger because you've had a hearing in the trial court and it is on appeal, then it would be if you simply had a cost bond requirement in the state -- I mean in the trial court before there would be any determination?

Mr. Vincent L. Dowding: I feel that's right, against State policy once, the litigant is a winner perhaps they are entitled not to behold into appeals court without some protection.

And that's the basis behind it which I feel is a valid state purpose.

Justice Harry A. Blackmun: Mr. Dowding let me go to the other issue to wet my curiosity?

Doesn't Nebraska ever let a prisoner out to defend in a trial court of the state in action of this kind of brought against him?

Mr. Vincent L. Dowding: Yes and Mr. Eisenstatt furnished that for the record.

There is a letter from the warden in there saying that all they require is an order from the court, directing that he'd be present and they will deliver him.

Justice Harry A. Blackmun: Do you know why such an order wasn't issued in this case?

Mr. Vincent L. Dowding: No, Your Honor.

The Court just overruled that there was no argument on it or anything and I felt that at that point that all (Inaudible) was after wasn't annulment and I felt that the law was clear.

She was married to Mr. Boersen, once she married Mr. Huffman and the record in this case maybe two pages.

Chief Justice Warren E. Burger: Was there any dispute on the facts at all?

Mr. Vincent L. Dowding: Not on the marriage issue and annulment issue.

There is a dispute on whether or not Mr. Huffman is foreclosed from determining that he is the father of Faye's child. He set that up.

Justice Byron R. White: Exactly was that a proper issue in this case?

Mr. Vincent L. Dowding: Well, I would say it probably was under Nebraska pleading because Huffman set it up in a cross petition.

I personally do not feel it was validly determined and I am willing to stipulate at any later litigation that Mr. Huffman can come in and determine this.

I didn't intend to have that issue determined, let's put it that way.

He filed a lot of pleadings and they weren't under any description or name allowed by Nebraska law and he did raise the paternity issue in there and it was rejected.

Chief Justice Warren E. Burger: Isn't that a rather unusual procedural device to determine paternity suit, paternity issue in annulment suit?

Mr. Vincent L. Dowding: Yes, it is Your Honor, but our Nebraska court has held that either party can raise that issue in an annulment, if it has alleged that there are issue at the marriage and as far as I am concerned that issue is not been foreclosed.

Chief Justice Warren E. Burger: That's established Nebraska law then.

Mr. Vincent L. Dowding: I believe it is Your Honor and Mr. Eisenstatt cites a case in his reply brief which indicates as such.

In closing then, we contend that the statute which brought Harold Huffman from access to the Appeals Court is constitutional.

If the Court finds that it is not, we ask for alternative relief to to afford us the same financial protection.

Justice William O. Douglas: What is that new bill, is it the legislative bill of 1920?

Mr. Vincent L. Dowding: Yes, it's attached to our brief as in appendix.

Justice William O. Douglas: But as I read it, it's not retroactive?

Mr. Vincent L. Dowding: Well, this is right Your Honor.

We probably have to go back in and ask him to apply it and if both parties agreed, they might.

Justice Byron R. White: Well, it doesn't need to be retroactive, this is still a live case?

Mr. Vincent L. Dowding: Well, we might have to go back and ask the Trial Court to certify that the appeal was taken in good faith before the appeal rules apply because that's what the statute says.

Justice Potter Stewart: Well you have to do that whether or not it's retroactive, you have to do that in every case, just under the terms of this statute?

Mr. Vincent L. Dowding: I think that the Nebraska Supreme Court would apply this.

Mr. Eisenstatt went in and said that we both want relief under the statute.

Justice Byron R. White: (Inaudible) then you'd be back?

Mr. Vincent L. Dowding: Yes.

Justice William O. Douglas: What you say is in your brief as I understand it, your argument that it was not taken in good faith?

Mr. Vincent L. Dowding: Well, I don't -- I feel the appeal is frivolous on the annulment issue.

Now, if paternity was decided invalidly against I think that the appeal has merit.

Justice Potter Stewart: You told us today that you concede that the determination of the paternity question was insufficient, invalid.

I think those words you used.

Mr. Vincent L. Dowding: Yes, I am willing just to agree that Mr. Huffman did not have his fay in the court on the paternity issue.

Justice Byron R. White: We could say so in the remainder.

Mr. Vincent L. Dowding: Yes, so stipulate.

Justice William O. Douglas: But, the question of -- basic question is the validity of the marriage, does that reach your brief?

Mr. Vincent L. Dowding: Yes, it has been decided.

Justice William O. Douglas: That is your standards of frivolous question?

Mr. Vincent L. Dowding: Yes because the Nebraska law was clear on that point that if the party is married when they enter into another marriage contract, then the marriage is void.

But, there is a Nevada statute which I didn't offer in the evidence and so it is outside the record, but it says that if parties are married when they enter into a marriage in Nevada, it's no null and void even without an annulment action.

I feel that Faye Boersen is entitled to an annulment, no question about that.

Justice Potter Stewart: It introduced, I saw in the record a certified copy of her divorce decree from the first husband which came after the marriage to this man, to Mr. Huffman?

Mr. Vincent L. Dowding: Yes.

Justice William O. Douglas: Do you think that the issue of annulment stands on a separate ground?

Mr. Vincent L. Dowding: I feel it does.

I am willing to say that the paternity issue was not decided against Harold Huffman.

The only annulment issue, I feel that's the only issue validly decided and his appeal in my opinion is frivolous.

Justice Potter Stewart: Of course it's all one law suit isn't it?

Mr. Vincent L. Dowding: Yes it is.

Justice Potter Stewart: So wouldn't it be considered so by Nebraska?

There is a complaint and there is a (Voice Overlap)

Mr. Vincent L. Dowding: Well that gets into the pleading laws.

I am willing to say the man didn't have a fair hearing on that paternity and ought to be able to litigate it.

Justice Potter Stewart: And that's part of all one lawsuit because it began as an action for annulment?

Mr. Vincent L. Dowding: Yes it is.

Justice William O. Douglas: Then you shouldn't say as you are doing your brief that the appeal was frivolous?

Mr. Vincent L. Dowding: Alright Your Honor, I will even concede that if in fact the paternity issue was decided --

Justice William O. Douglas: Yeah.

Mr. Vincent L. Dowding: -- but I am again willing to open up the Courts on remand or anything for Huffman to decide this issue.

Chief Justice Warren E. Burger: Thank you Mr. Dowding.

Mr. Eisenstatt, your time was consumed but if there is any important factor you wish to make, we will give you a minute or two.

Rebuttal of Leo Eisenstatt

Mr. Leo Eisenstatt: Just two minutes, if you may Your Honor.

First, you can't, in Nebraska, stipulate the jurisdiction as far as the paternity issue.

He said that he will be willing to stipulate, I just wanted the Court to know that a stipulation of counsel will not vest any court with jurisdiction to hear the matter.

Justice Potter Stewart: But it may have something to do with whether or not this appeal is a substantial appeal or frivolous one?

Mr. Leo Eisenstatt: Right, and as to one point with respect to the Lindsey versus Normet case, I would like to call the Court's attention to the distinguishing characteristic of that bond or payment provision for rent pending appeal and the Court said, there are unique facts and legal characteristics of landlord-tenant relationship that justifies special statutory treatment inapplicable to other litigants and then goes on to refer to the fact that the landlord is incurring expenses and the tenant will be getting free occupation.

So I reiterate my statement in my original presentation that the original or bond covering the payment of the actual rent is distinguishable from this case.

Chief Justice Warren E. Burger: You agree with Mr. Dowding that a remand to the Nebraska Courts would be an appropriate solution to this problem?

Mr. Leo Eisenstatt: I would hope it would.

I would want this Court to, I think give it a bit of a nudge Your Honor.

If they could have a chance to interpret this contrary to applying of section LB 1120, they might do it.

Chief Justice Warren E. Burger: Now that you -- when you say give them a nudge you mean by that to make it clear that we expect Nebraska to solve this problem?

Mr. Leo Eisenstatt: Yes, Your Honor.

Chief Justice Warren E. Burger: Thank you.

Mr. Eisenstatt you appeared here by our request and by appointment of the Court and after the Court I want to thank you for your assistance not only to your client, but to our Court.

Mr. Leo Eisenstatt: Thank you.

Chief Justice Warren E. Burger: And thank you Mr. Dowding.

The case is submitted.

Featured:

James v. Strange - Oral Argument

Thu, 23 Aug 2012 18:19:45 +0000

Case:

James v. Strange

Media File:

71-11_19720322-argument.mp3

Related Transcript:

71-11_19720322-argument

Transcript:

Argument of Edward G. Collister, Jr.

Chief Justice Warren E. Burger: Next in number 71-11, James against Strange.

Mr. Collister, You may proceed whenever you are ready.

Mr. Edward G. Collister, Jr.: Mr. Chief Justice and may it please the Court.

This is one of those cases that in attempting to characterize what you are doing to your colleagues back in the office, you have a little bit of difficulty identifying exactly what it is because I hate to refer to it as the Strange case.

What it is, is a direct appeal from the Three-Judge Court sitting in the District of Kansas which declared unconstitutional and enjoined the future enforcement of a statute passed by the 1979 Kansas legislature.

The statute involved, KSA 1971 sub 22-4513 is a part of the Aid to Indigent Defenders Act passed in that year by that legislature.

I think what happened to generate the passage of the entire Act was that the confusion that existed with regard to the manner and method of not only determination of indigency for the purposes of appointing counsel in criminal cases, but also the method of payment of counsel and some fashion caused the legislature to pass a rather comprehensive Act and that Act provides for the establishment of a Board of Supervisors to govern the administrative work of the system which is administered directly by the State's Judicial Administrator, Mr. James.

The Board of Supervisors is authorized to cause to be accumulated a panel of attorneys in the various districts and to formulate rules and regulations for the implementation of the Act.

Once the panel of attorneys is formulated, any district judge or magistrate may rely on any attorney on that panel for providing counsel to those who he finds indigent and requiring counsel.

The challenged portion of the Act provides that when any expense has been advanced or paid by the state on behalf of somebody who has been found to be indigent, the state is allowed an opportunity to cause repayment to -- at least be attempt a procedure that is used in 4513, a repayment statute, is that the judicial administrator causes a notice to be sent to the person upon whose behalf the expenditure was made.

Justice William J. Brennan: May I ask what was the expense embraced?

Mr. Edward G. Collister, Jr.: The expense can embrace any amount of money expended under the Act for the provision of counsel.

Justice William J. Brennan: Hold it right there, is there a fee provided for counsel?

Mr. Edward G. Collister, Jr.: Is it set by the Act?

Justice William J. Brennan: Or is there anything in counsel, are they awarded fees?

Mr. Edward G. Collister, Jr.: They are awarded fees.

Currently what -- no I should not say currently because this has been true through the history of the Act, each year the judicial administrator on behalf of the Supreme Court proposes a budget to the State Legislature which appropriates the money to fund the indigent program.

His estimate is really a guess, at least it was to start with, so in any event the money is appropriated, then the Board of Supervisors which includes the Judicial Administrator and a Justice of the State Supreme Court determine rates of compensation.

Currently the rates are figured at about $15 to $20 an hour.

$15 an hour for out of court time and $20 an hour for in court time with a maximum of $500 in any case not involving a sentence of a life imprisonment or death.

In another words for practical purposes everything, but a capital case.

Also the statute authorizes the expenditure of funds to provide defense services, let us say an investigator, I would assume the transcripts would be included although I have no state decision controlling it one way or another, perhaps experts, fax or anything that the state is authorized to initially provide on the indigent defendant's behalf under the act which covers the criminal trial, the post conviction, the collateral attack, the appeal stages of the proceedings.

Justice William J. Brennan: This are direct outlets.

Now they do not include any overhead for the administration of the program.

Mr. Edward G. Collister, Jr.: I am not sure that I quite understand.

Justice William J. Brennan: Well I gather to understand that the administrator's and it's program --

Mr. Edward G. Collister, Jr.: I am sorry, the program is administered by the Judicial administrator who does not receive any direct compensation for performing that portion of his job through the Aid Indigents Defenders fund.W

hatever staff he has is funded separately.

There are no additional employees to my knowledge.

Justice Potter Stewart: They are employees of the state however?

Mr. Edward G. Collister, Jr.: Yes sir.

Justice Potter Stewart: Just receiving the salary from the State?

Mr. Edward G. Collister, Jr.: Yes sir.

Justice Potter Stewart: And the lawyers appointed on -- by contrast are private practitioners who are appointed for a particular case, will get compensated by the state?

Mr. Edward G. Collister, Jr.: Yes sir.

Justice Potter Stewart: You do not have a -- we do not have here a state legal aid?

Mr. Edward G. Collister, Jr.: No sir, there is a statutory authorization for a state public defender system, but to my knowledge that has not been implemented by the state.

There are two public defender offices, but they are funded through a federal grant on that with a Federal Pay Spread.

Justice Potter Stewart: Right.

Now is this under the statute, this is a collectible equally whether the defendant is acquitted or convicted, is it?

Mr. Edward G. Collister, Jr.: The statute appears to read that way, yes sir.

There is no state decision interpreting any aspect of the statute handed down by the State Supreme Court.

Whether they would read some exceptions to those defendants who are acquitted into the Act, I do not know.

The statute applies equally across the board.

Justice Potter Stewart: I am familiar with the system of at least one state, at least the way it used to be where if the defendant was acquitted that was the end of it and the state absorbed the costs, but if he was convicted, he was supposed to pay off the cost over the period of his time.

Mr. Edward G. Collister, Jr.: Our research I think disclose several states where that was the case.

Justice Potter Stewart: I suppose an equal protection, an attack could be made upon that kind of system?

Mr. Edward G. Collister, Jr.: I would expect.

I think the, regardless of what the statute in its current form provides, under the District Court's decision, the Three-Judge Court the state would be prohibited from taking any kind of action to allow reimbursement or recoupment because what the District Court, excuse me, what the Three-Judge Court decided.

If I may refer to the court's opinion as printed on the jurisdictional statement and the appendix to the jurisdictional statement, I would like to refer to pages seven and eight of the appendix, where the Three-Judge Court on page eighty-seven says, “Hence any construction of the Kansas' statute which leaves intact the state's right to recover legal expenses from indigents is a construction which inevitably impinges upon and determines the rights protected in Gideon and the same reasoning is employed in the next page, leading us to conclude that whatever form the state might have enacted or might choose to enact in the future, would under that philosophy be an unconstitutional burden on the right to counsel.

This action was filed in a Federal Court in behalf of a plaintiff, David Strange who had been charged with a felony crime in the District Court, ultimately in the District Court of Shawnee county in the state of Kansas.

He was, he received the letter of demand from the Judicial Administrator notifying him of the states claim as a result of a direct outlay of $500 to his court appointed attorney, it was Mr. Wilkinson.

At that time the Federal Court action filed and ever since then the state in that case has agreed to not proceed any further and when the District Court handed down its decision, a permanent injunction restraining any enforcement of that provision of the statute was also avoided.

Justice William J. Brennan: Now I gather in this case the only expense was the $500 paid to the attorney?

Mr. Edward G. Collister, Jr.: It's -- that is my understanding, yes sir.

The issue as we see it is one that is a little bit for me to vocalize.

The issue stated in the brief is as follows.

Whether the existence of a state statutory procedure providing for the collection from an indigent defendant of moneys expended by the state to furnish him counsel constitutes an unlawful burden upon an indigent defendant's Sixth Amendment right to the assistance of counsel and that is pretty wordy.

But it is difficult to approach the subject without having to do a little bit of defining what we are talking about.

The state has attempted to treat all those who are found to be indigent equally with regard to this particular statute.

They, the state has attempted to treat them the same as would any civil judgment debt ought be treated in the state courts with one possible exception and that relates to the exemptions.

The exemptions for civil judgment debtor in a state are a little bit broader than those under the Aid to Indigent Defenders Act and the statute specifically defines what exemptions are available and what are not, and primarily the exemption is the homestead exemption.

The statute is much broader, however, than simply allowing the state to take a judgment against the person found to be indigent because it authorizes in effect the setting aside of a fraudulent conveyance and an establishment of a lien against any property that might have been transferred by the indigent prior -- subsequent to the time the crime was committed.

In trying to define what the precise issue that, the Lower Court treated, the Three-Judge Court, we have to look to the Sixth Amendment, which provides that in all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel and the precise question we ask is, what does it mean when it says the right to the assistance of counsel?

Does it mean that the state has to provide free counsel?

Because that is adding a word that is not in the constitution and in the decisions of this Court relating to the right to counsel, when this Court speaks in terms of protecting the Sixth Amendment right to counsel by providing counsel or seeing that the defendant at a criminal trial has the opportunity to be heard by a counsel, does that mean that the state has to bear the expense of providing that counsel under all circumstances?

It is a state's position that at the time the criminal defendant is tried in the State of Kansas under the Aid to Indigent Defenders Act, the constitutional right to counsel is protected.

Justice Thurgood Marshall: Because to those extents that if I ever get money any time in my life you are going to take $500 away from me?

Mr. Edward G. Collister, Jr.: It is protected in that manner with same limitations that exist with regard to any other civil judgment at the time period, yes sir.

Justice Thurgood Marshall: We are not talking about civil case, we are talking abut the criminal case?

Mr. Edward G. Collister, Jr.: I understand that the same…

Justice Thurgood Marshall: And Kansas I assume is in the business of rehabilitating prisoners?

Mr. Edward G. Collister, Jr.: Yes Your Honor.

Justice Thurgood Marshall: And so after the man has served his time and comes out and he says “well, I think I ought to get a job” and then he remembers there is no reason to get a job because I will have to give that money to the state, does that help with his rehabilitation?

Mr. Edward G. Collister, Jr.: I do not know that I can qualify as a penologist.

I think what it does do is it creates an impression with him that there are certain consequences of his acts other than the mere commission of the crime, as in this case achieving a status of probation just as the person who did not qualify as an indigent and did have some financial consequences that did hurt him.

That he did have to remember because he had to -- he had to purchase the services of counsel, would remember the same thing.

Justice Thurgood Marshall: But he has paid that.

The services, he paid for that, but this is --

Mr. Edward G. Collister, Jr.: If he has, yea sir --

Justice Thurgood Marshall: But in this case he is told that if we give, we will give you counsel, but if ever you get your hands on a buck, we are going to make you pay for it?

Mr. Edward G. Collister, Jr.: Well, the statute provides that that will occur if --

Justice Thurgood Marshall: If he gets a buck?

Mr. Edward G. Collister, Jr.: Within a five-year period, I mean I do not --

Justice Thurgood Marshall: If he gets a buck?

Mr. Edward G. Collister, Jr.: Within five years and the state can collect it.

Justice Harry A. Blackmun: Mr. Collister, let us take an extreme case.

Suppose he inherits a million dollars next week, you would expect him to pay the $500?

Mr. Edward G. Collister, Jr.: Yes Sir.

Chief Justice Warren E. Burger: Or suppose in another hypothetical case that at the time of his arrest or his trial it developed that he had $500 in the bank he saved up, he would not get the free service then would he, necessarily?

Mr. Edward G. Collister, Jr.: Well, that is in practice I think that is a lot more difficult to answer than it would appear.

My impression would be that he would not if he could afford to use that money for the services of an attorney.

Of course, he would claim that he could not use that money for the services of an attorney or that he was not sure that much money would be enough because the attorney who represented him on retainer basis might say I will charge on hourly basis.

Practically, whether or not that would in fact occur, I think it is maybe debatable, but as a matter of abstraction, I would think that would be the case.

Justice Thurgood Marshall: And if he has a lawyer for $250 and he inherits a million dollars that lawyer can get another $250 from him, can he?

Mr. Edward G. Collister, Jr.: No sir, I am assuming that they have a set agreement that he is to receive only $250, not something dependent upon acquiring money.

Justice Thurgood Marshall: Do you think -- does this help the guilty pleas in Kansas?

Mr. Edward G. Collister, Jr.: I do not have any statistics that would lead to a conclusion one way or another.

My guess Is not because I do know that we are trying a lot more cases than we have in the past, generally.

Justice Potter Stewart: Who sets the fee, certainly the defendant has no say in the amount of the fee?

Mr. Edward G. Collister, Jr.: A claim is made by the attorney to -- which has to be approved by the judge who presided over the case to the appointing in the appointing hearing.

A claim is then submitted to the judicial administrator to present to the panel that supervises the entire operation of the Act.

Assuming that the rate that is then in existence is followed, that is approved.

Justice Potter Stewart: What I have in my mind was I do not know that your brother on the other side makes this argument that the court did decide this case, but normally when a defendant is not an indigent, at least there is or might be some negotiation with his own selected lawyer as to the amount of the fee and while he may not be in a very good bargaining position at least he may negotiate a fee and here the fee, the amount of the fee is entirely beyond his control.

He is not consulted about it at all and presumably again to take an outrageous hypothetical case, Kansas might decide to pay lawyers $10,000 for this job and I know in fact you say it is limited to $500 and if you accept a non capital cases, but, or might decide to pay $500 for ten minutes of time and then just automatically charge the defendant that amount and then he would not have any say in it.

Mr. Edward G. Collister, Jr.: There are conceivable situations which might be subject to a different kind of attack than the present statute where an unreasonable is charged.

Justice Potter Stewart: There is no claim that this amount is unreasonable I gather in this case or that the general fee schedule is on or fee system is on schedule.

Mr. Edward G. Collister, Jr.: I do not believe so and further more the basis of the Three-Judge Court's decision was that any attempt regardless of whether it was a 5% of what the regular minimum schedule would be, would be an unconstitutional burden on the exercise of the right of counsel.

Justice Potter Stewart: I suppose present counsel is in a very good position to challenge that reasonable as to the fee.[Laughter]

Justice William H. Rehnquist: Mr. Collister, does the existence of this recoupment statute in Kansas tend to reduce in anyway the type of inquiry or the extent of inquiry initially made by the Trial Court when a defendant claims to be indigent?

Does the Trial Court feel free to conclude that he is indigent without any searching examination because of the existence of the recoupment statute?

Mr. Edward G. Collister, Jr.: Well again I do not have, that is not a -- my answer cannot be documented.

but my assessment of what is occurring would be that because of other reasons, our judges are getting much more careful about examining persons who allege they are indigent for the purposes of appointing an attorney and the primary reason is that the increase in the number of representations by attorneys in court appointed cases has increased so much in the last three to four years that the courts are becoming very, are much more seriously inquiring as to the indigency status than they ever did before and that approach is implemented even more by the statute, which the current statute which is in another, current Act, excuse me, which is another provision specifically authorizes the trial judge if he wishes in his discretion to require the indigent applicant to file an affidavit setting out certain information concerning his finances.

So my guess is that, there is more inquiry, more inquiry going on right now.

Justice William H. Rehnquist: But not because of the recoupment statute?

Mr. Edward G. Collister, Jr.: Correct.

Justice Lewis F. Powell: Fraudulent conveyance provision in the statute, has there been any experience in Kansas to your knowledge that suggests the legislature was motivated in the enactment of this statute by conveyances being made to enable individuals to take advantage of free legal counsel?

Mr. Edward G. Collister, Jr.: Not to my knowledge.

I have been in the Attorney General's Office for four years and I have not heard of anything that has caused the legislature to become, to react in that fashion and I suspect that what is happening in our state is happening to so many other places in the last three to five years is that every year we get into continual fight in the legislature about who is going to get what money is available and how we are going to get that money.

As a matter of fact, it was reflected in this very same Act, in 1971 when the legislature almost refused to extend any money to the judicial -- to appropriate any money to the judicial administrator to administer under the Act.

I suspect that what they were concerned about was trying to recover as much money as they could and there has been some recovery and I recognize that that recovery is not very much compared to the total expended.

Justice Lewis F. Powell: $17,000 in two years as I recall.

Mr. Edward G. Collister, Jr.: The period of time that the recoupment provision has been in effect from which approximately July 1 of 1969 through the first part of 1971 when the Three-Judge Court declared the statute unconstitutional, there has been no attempted collection since then, so it is about one year and eight or nine months.

I do not know how effective the provision would be to collecting a greater sum of money because we have not had that much expenditure to be quite honest about it.

Chief Justice Warren E. Burger: I am not sure I followed your figures.

What was the amount recouped in that period of time?

Mr. Edward G. Collister, Jr.: It is approximately $17,000.

Chief Justice Warren E. Burger: About a thousand dollars a month?

Mr. Edward G. Collister, Jr.: Roughly, whether or not the work that has to be done by the judicial administrator, the attorney general's office and the county attorneys in the state that justify that kind of recovery may be debatable, but that is the province of the legislature to decide what policy that it want to implement as long as of course it does not violate the constitution.

Our feeling about the subject matter of the District Court's opinion is that the right to counsel, the opportunity to be heard by counsel is granted and implemented by the Act.

We reviewed the decisions of various courts.

We find very few end points on this particular issue.

The California Supreme Court has held that you can't as a condition in a probation require reimbursement of moneys expended making much the same argument that is made in this case.

The Iowa Supreme Court in Dicta indicated that if the state legislature would adopt the statute, I am assuming that it would be similar in substance to ours that the state could recover money.

The Ohio Court of Appeals has allowed a similar procedure in Ohio, but other than -- the Supreme Court of New Hampshire has rendered an advisory opinion that when I read it at least indicates that under their state constitution which is different than the constitution of the State of Kansas, the state has to provide free counsel because of the wording of the New Hampshire constitution.

That is about the sum total of the precedent that we are able to present that either side is able to present for that matter.

The issues as seen by the Three-Judge Court were one, whether or not the right to counsel encompasses an absolute requirement that the state provide free counsel as opposed to allowing the opportunity to be heard by counsel.

Secondly whether or not the statute imposes an unconstitutional burden on the exercise of a constitutional right directing my attention to the later those whether or not the burden is needless or unreasonable.

In part those have to be in this kind of a case I think determinations of the legislature whether this kind of a policy is justified with the obvious time and trouble that state officials have to go through.

Justice William J. Brennan: What do you currently have on the reasoning of the District Court that the statute deters indigents from exercising the right to the assistance of counsel, thus puts the accused in the position of deciding whether you can afford to consult even with court appointed counsel.

Of course the accused has not the means to hire an attorney in the first instance, so he will not to be in a position to accept court appointed counsel when it really means is he has at most 90 days grace in paying the cost of legal services rendered on his behalf.

What is the 90 days?

Mr. Edward G. Collister, Jr.: The 90 days after the notice is sent.

Justice William J. Brennan: But when is the notice sent?

Mr. Edward G. Collister, Jr.: The judicial administrator has 30 days in which to send out the notice and then the --

Justice William J. Brennan: 30 days from what date?

Mr. Edward G. Collister, Jr.: The date the money is expended.

Justice William J. Brennan: The date of the payment appear as --

Mr. Edward G. Collister, Jr.: Which may come after the final action on the criminal case.

Usually it does as a matter of fact and then --

Justice William J. Brennan: And when an if convicted he is probably serving a term?

He is in prison.

Mr. Edward G. Collister, Jr.: Or on probation.

Justice William J. Brennan: Well, let us assume he is prison, now he was indigent when he went to trial he has no money and now he gets a notice after the lawyer has been paid that he must to do what, pay within.

Mr. Edward G. Collister, Jr.: Within 60 days --

Justice William J. Brennan: Well obviously he cannot pay.

Mr. Edward G. Collister, Jr.: And if in fact he does not pay, a judgment is taken against him.

Justice William J. Brennan: And an interest runs on that judgment?

Mr. Edward G. Collister, Jr.: Inter strands on that judgment.

Justice William J. Brennan: And he is really helpless to do anything about it because he has been an indigent all along, assuming now he was got --

Mr. Edward G. Collister, Jr.: Assuming that he's been indigent all along.

Justice William J. Brennan: And (Inaudible)

Mr. Edward G. Collister, Jr.: Yes sir.

Justice William J. Brennan: He was appointed counsel because he was indigent.

Mr. Edward G. Collister, Jr.: At some time prior he was whether anything intervenes or not I will assume that it in most cases --

Justice William J. Brennan: Well, let's us assume he does (Inaudible) I guess that in most of this cases he is indigent when he gets counsel, he is indigent when he is tried, he is indigent when he is convicted, he is in prison as an indigent, he does not have a nickel.

Now he gets a notice that he must pay within 60 days otherwise a judgment is entered with interest to run against him.

Mr. Edward G. Collister, Jr.: That is correct.

Justice William J. Brennan: Then why is it not that observation of the Three-Judge Court sound?

Mr. Edward G. Collister, Jr.: The statute as it exists creates an impediment to his choice.

Justice William J. Brennan: Not to his choice --

Mr. Edward G. Collister, Jr.: To his choice of whether to accept --

Justice William J. Brennan: Whether he can afford or even to consult for court appointed counsel.

Mr. Edward G. Collister, Jr.: I have to admit that is --

Justice William J. Brennan: Will not be in a position to accept court appointed counsel and it really means that he has at most 90 days grace in paying the cost of the legal services rather on his behalf.

Mr. Edward G. Collister, Jr.: I --

Justice Potter Stewart: The other side of coin of course is that he can very well afford it, if we assume he still remains indigent, the helpless party is the state not the indigent because they cannot collect a nickel.

Mr. Edward G. Collister, Jr.: That is also true.

My thought about the question that Mr. Justice Brennan asked was if that in fact is true, then our entire system of appointing, excuse me, then our entire system of requiring representation of counsel in criminal cases is unconstitutional for all cases except those who unlike myself are wealthy enough to afford any lawyer that they want to affor.

Justice Thurgood Marshall: But even though if he pleads guilty he doesn't have worry about it.

Mr. Edward G. Collister, Jr.: If he pleads guilty he --

Justice Potter Stewart: He has a right to counsel.

Justice Thurgood Marshall: But if he waives his right to counsel and signs an affidavit waiving it and pleads guilty you cannot collect a nickel from him, right?

Mr. Edward G. Collister, Jr.: If nothing has been expanded, yes sir.

Justice Potter Stewart: And that would be true.

Justice Thurgood Marshall: That is one way of saving 500 bucks.

Mr. Edward G. Collister, Jr.: Yes it would be.

Justice Potter Stewart: Another way would be to plead not guilty and waive counsel?

Justice William J. Brennan: And that is what I gather what the Three-Judge Court is talking about in that circumstances, say then I will not take counsel if I have got this burden on my back if I am convicted when I come out I will just, if tried the case on my own.

Mr. Edward G. Collister, Jr.: That is a possibility yes.

Chief Justice Warren E. Burger: Do you know how many people have refused counsel since this plan went into effect?

Mr. Edward G. Collister, Jr.: To my knowledge I do not have any personal knowledge either way.

Chief Justice Warren E. Burger: That means none?

Mr. Edward G. Collister, Jr.: To my knowledge none.

Chief Justice Warren E. Burger: I would take judicial notice that the proposition that people in those circumstances do not give it any thought one way or another whether at some future date they maybe called upon to pay the $500.

And going to another thing if the man is going to plead guilty and of course as Mr. Justice Stewart said he must have counsel if he is going to plead guilty, that does not necessarily mean he is going to have a $500 fee to consult about a guilty plea, does he?

He's paid you said $15 an hour.

Mr. Edward G. Collister, Jr.: That is correct, the attorney is paid on an hourly basis.

Chief Justice Warren E. Burger: So his bill might --

Mr. Edward G. Collister, Jr.: The maximum --

Chief Justice Warren E. Burger: -- $90 or $125 and not $500?

Mr. Edward G. Collister, Jr.: That is correct and the rate is much below that which is charged in metropolitan areas of Kansas on the minimum --

Justice William O. Douglas: Does Kansas sue him for the $500?

Mr. Edward G. Collister, Jr.: Yes Sir.

Justice William O. Douglas: Does Kansas name that lawyer to represent him?

Mr. Edward G. Collister, Jr.: I do not think there is any provision for that sir.

Justice Harry A. Blackmun: Well does Kansas sue him or is the judgment entered by confession?

Mr. Edward G. Collister, Jr.: The judgment is entered in effect by confession and then it is enforceable by the state in a proceeding.

Justice Harry A. Blackmun: And then tell me what is your Kansas system?

What is that judgment of lien against and how long is it valid as lien?

Mr. Edward G. Collister, Jr.: The judgment is the lien against -- let me approach that question by answering this way.

The judgment is treated almost exactly the same as would any judgment in the civil case.

It is to lien against all property that a civil judgment would operate against.

The homestead exemption exists, the lien exists for five years unless execution is issued.

If execution is not issued it becomes dormant and it's subject to reviver within a two-year period just as are all civil judgments which all are liens.

Justice William H. Rehnquist: If the man remains indigent, who is truly indigent the first place remains indigent the judgment really does not have much effect on him?

Mr. Edward G. Collister, Jr.: That is correct.

Justice William J. Brennan: Well suppose he gets twenty years prison term and I gather the state has -- gives him a sixty-day notice, he is in prison, he is still indigent and then within two years the state has to sue him, isn't that right?

No action shall brought against any person under the provision of the section to recover for sums expended on behalf of the indigent unless that action has been filed within two years after the date of the expenditure from the fund Aid to Indigents Defense.

Mr. Edward G. Collister, Jr.: I think that provision relates to the suit against the person to whom property has been fraudulently been transferred.

Justice William J. Brennan: Only to that?

Mr. Edward G. Collister, Jr.: Yes Sir.

Justice William J. Brennan: I see.

Well then --

Mr. Edward G. Collister, Jr.: Otherwise the judgment when it is filed would operate as a lien for five years just as --

Justice William J. Brennan: So if he had a twenty year term that the lien runs out while he was serving his term.

Mr. Edward G. Collister, Jr.: Yes Sir.

Justice Potter Stewart: It is in his interest to get a long prison term.[Laughter]

Mr. Edward G. Collister, Jr.: I see that my time has run out.

I do not have anything further to say.

We have tried in our brief.

We cite the authorities we found available and the similar or other statutes in other states comparable to ours.

Thank you.

Chief Justice Warren E. Burger: Mr. Wilkinson.

Argument of John E. Wilkinson

Mr. John E. Wilkinson: Mr. Chief Justice and members of the Court.

I suppose that I am the one who failed to tell David Strange that I was not free court appointed counsel and consequently, I felt morally obligated to carry his cause pretty much at my expense.

When I first confronted David Strange in the jail, I was under the impression that I was free court appointed counsel and had the statute had been called, had I known about the statute at that time, the statute became effective July 1, I think I was called on July 10, 1969, some nine days later, ten days later.

I perhaps would have done essentially the same thing I did after I plead David Strange guilty under Ex parte royal which I believe Mr. Justice Brennan decided in the favor of (Inaudible).

I would have attempted to stop the criminal proceedings at that time because contrary to what Mr. Chief Justice Burger has said he thought he would take judicial notice at, I think it is important for a young man to be advised and particularly in this young man's circumstances where he is guilty or committed his first offense to be given a chance again, and that is what he has been grappling with in his own situations from a family of 11 children.

He had a brother who was in the hospital for the criminally insane who set a bad example for him when he ran away from the (Inaudible) state hospital and got him into trouble in this case.

After I have plead him guilty to his offense David Strange got a job and he is working today.

He has a marginal existence.

He does not need this $500 judgment or any judgment against him, but he is gainfully occupied.

He is taking care of his wife, he is taking care of his baby.

This $500 judgment at the time that was to be levied against him on February fourth 1970 I believe would have put him in the ranks of the people who could not honestly apply for a job because he was judgment for material, he was legal fee material.

His work would have required -- his judgment against him would have caused his employer to expend legal fees on his behalf just to meet garnishment problems.

Now the state says and has said all along that there is only the five years involved but they can renew this judgment by a simple matter at the clerk of District Courts office.

So whether if he has five years or twenty years, it is a matter of levying execution, returning to execution unsatisfied.

Justice William J. Brennan: Do you think this statute really puts the lawyer to option telling his client always to saying I will take the $500?

Mr. John E. Wilkinson: I think it would be who the lawyer to render this advise and I would not want to impose that burden upon any judge because I think in --

Justice William J. Brennan: Well I take it you do not get the allowance without applying for it?

Mr. John E. Wilkinson: That is right.

Justice William J. Brennan: So if you had not applied for it, it had not been allowed, no judgment against the defendant would ever be entered.

Mr. John E. Wilkinson: Yes Sir.

Justice William J. Brennan: It is not really a nice position to be in, I take it?

Mr. John E. Wilkinson: That is right it was not and I have thought about it at considerable length before I decided to go ahead and file my voucher for payment of my services.

Justice Potter Stewart: Mr. Wilkinson before the enactment of this statute in your state of Kansas what was the system?

Did lawyers appointed to defend indigent criminal defendants without pay or were they paid by the state with no recoupment?

Mr. John E. Wilkinson: They were paid for by the county, expense of the county, the board of county commissioner is allowed to set aside a sum of money for the counsel for the indigent.

Justice Potter Stewart: And then without any recoupment?

Mr. John E. Wilkinson: Without any recoupment.

Justice Potter Stewart: And this was the first statewide state law on the subject?

Mr. John E. Wilkinson: Yes Sir it was a reaction to Gideon versus Wainwright.

Justice Potter Stewart: Before that was there disparity, were there variances in the way the various counties handled it?

Mr. John E. Wilkinson: Well I would think so.

I think there would be some instances where the man was on probation that a judge might say you pay back a certain sum of money to your attorney, but you see this particular statute starts out prior to the time you really learn the circumstances of the indigent accused.

The accused stands charged and you do not know whether he is going to get probation or whether he wants to contest the actions of the police, or whether not he really wants to have a jury trial, whether or not he wants to confront his witnesses, whether or not he wants to cross examine the states witnesses.

This is all done ahead of time and as you pointed out earlier he has no opportunity to determine what the amount of his judgment might be unless someone advises him in advance.

Justice Potter Stewart: But they are in control over the amount that is explained by your brother?

Mr. John E. Wilkinson: Yes sir and in answer to one of the circumstance I do know that there was a substantial judgment against an accused after the trial in Gallatin County.

He decided he would go ahead and contest the charges against him and he was ultimately acquit it and then he was saddled with the judgment.

Justice Potter Stewart: He was saddled with the judgment?

Mr. John E. Wilkinson: With the judgment.

Justice Potter Stewart: (Voice Overlap) $500 unless it was a capital case.

Mr. John E. Wilkinson: I think he says a maximum of $500, but there is an allowance.

Special circumstances depending on what the judge would allow and what the Board of Supervisors will allow.

Justice Potter Stewart: The county board is still in the picture?

Mr. John E. Wilkinson: No the county is not, it is the state board.

Justice Potter Stewart: State Board --

Mr. John E. Wilkinson: And I did not contest that, the judicial administrator and one Supreme Court justice and three of them.

Justice Potter Stewart: And it's a state agency.

Mr. John E. Wilkinson: They sort of act together primarily to the advise of the judicial administrator.

Chief Justice Warren E. Burger: After this statute went into effect Mr. Wilkinson and if you know, could you tell me whether the number of appointments went up or it went down as compared with the graph, if you were graphing it prior to the Act?

Mr. John E. Wilkinson: I would say that it stayed essentially the same.

The need for counsel in serious offense as set down by Gideon versus Wainwright was recognized by the courts and that as much as anything determined that there should be counsel appointed, but not the statute.

It had anything to do with the statute I do not believe.

Justice William H. Rehnquist: Mr. Wilkinson, does Kansas, the state bar of Kansas have a recommended minimum fee schedule?

Mr. John E. Wilkinson: Yes Sir.

Justice William H. Rehnquist: How do the limits on the fees recoverable under this Act for represent indigents compare with the similar recommended fees in the Kansas state bar?

Mr. John E. Wilkinson: I would say it is less than half of what I work for.

There is a quite a bit of movement among the lawyers in the legislature to do something about that and I would suspect that over the course of time as they pay out more money for peace or contract architects and consulting engineers and things of that nature, that we attorneys will finally get paid a reasonable fee also.

Gideon versus Wainwright, I do not want to lose sight of that because I feel like the finding of the Three-Judge District Court was correct.

That if the statute was not to deter the accused from exercising basic rights, that it is needless.

It is not necessary.

For our democracy to work.

We must have a point of emphasize here.

A real finding that for the poor in a free society we must provide free counsel.

I do no believe that is asking too much of our society.

Chief Justice Warren E. Burger: You are know addressing yourself to the policy question are you not?

Mr. John E. Wilkinson: Yes Sir.

Chief Justice Warren E. Burger: I think you have probably find universal agreement on that but as a matter of policy that certainly is desirable, but does that reach the constitutional issue that is involved in this case of the recoupment?

Mr. John E. Wilkinson: Well I do not think that you can separate the two.

I believe a recoupment to be a, in this particular instance to be somewhat of a deterrent of the exercise of basic fundamental rights.

I want to adhere to that policy.

I feel that the recoupment provision is a means of control supposedly of holding down an accused, an indigent accused in exercising basic rights.

I firmly believe that.

Justice Harry A. Blackmun: Mr. Wilkinson help me out on another aspect of deterrence.

Suppose that your client here Mr. Strange were not an indigent, but he was just above the indigency level and he had a fairly large family to support.

Do you think the fact of incurring legal fees to defend him in a criminal case might deter him from pleading not guilty and rather pushing him into pleading guilty to get it over with?

Mr. John E. Wilkinson: Yes sir I do.

I think --

Justice Harry A. Blackmun: How do you square his situation with an answer to Mr. James.

Mr. John E. Wilkinson: The actual Mr. Strange?

Justice Harry A. Blackmun: Mr. Strange.

Mr. John E. Wilkinson: Well as far as squaring the person who has eleven or, just above the poverty line, I think probably the best way that that is provided for in the statute is through the judge's interrogation as to finding out what this man has in the way of the family.

What his needs are and then after he is, after the judge has made this judicial determination of indigence then he is afforded free counsel.

I think it is within the judge, I do not think I am begging your question.

Justice Harry A. Blackmun: To the point where there are some iniquities built into any system?

Mr. John E. Wilkinson: I think so and I think that the best way to give him free counsel.

Justice Harry A. Blackmun: That explains as to give the true indigent free counsel and let the just barely over the indigency line sink or swim?

Mr. John E. Wilkinson: Well I know that Mr. Judge Temper, my ex boss and I have similar case in Federal Court gave free counsel to the man who was making $13,000 a year, making a determination that he had ten children that it was more important for him to have a counsel in this case, free counsel in the Federal District Court case.

In the normal circumstance you would not determine that this man making that kind of money would be poverty stricken, but still in need of counsel and indigent in the legal sense I suppose and that is up to the judge to determine.

After that determination has been made I feel like it is in society's best interest to make it free and make these rights variable.

Justice William J. Brennan: Do you know the statutory definition of an indigent?

Mr. John E. Wilkinson: The national defenders association and I have to apologize to the Court I did not know enough about it.

I make it is pure eyes procedures if it was ahead of time I may had analyzed all the statutes that talk about poverty levels and if you do not have it I have one copy of it, if you would like it.

Chief Justice Warren E. Burger: You will hand to the clerk later on.

You could do that afterwards, he will prepare copies of course.

Justice Lewis F. Powell: Mr. Wilkinson you state in your brief that this statute has had a chilling effect on the use by indigents of counsel.

Is there anything in the record to support that?

Mr. John E. Wilkinson: In this particular case?

Justice Lewis F. Powell: Yes.

Mr. John E. Wilkinson: No because you see I did not advise him that he was going to have to pay me back.

Justice Lewis F. Powell: But what is the basis for the statement in your brief to that effect?

Mr. John E. Wilkinson: In my brief is in the District Court's finding.

That is what they found in their decisions Mr. Justice Powell.

Justice Lewis F. Powell: They made a finding without anything in the record to support it?

Mr. John E. Wilkinson: When I filed -- I would say to some extent that is true.

When I filed this case I thought it was going to be a simple little matter because I have not given this person notice that a judgment was about to be rendered against him and neither did the magistrate judge and neither did the District Judge.

I thought I was going to be proceeding on the basis of due process notice and it was admitted in the stipulations of facts that there was no notice given to the indigent accused.

I did not contemplate that the court would keep this matter under advisement over a year and make a decision that later on the basis of some chilling effect.

Justice Lewis F. Powell: So there is nothing in the record on this subject?

Mr. John E. Wilkinson: There is nothing in another in the notice that he had to -- there is nothing in the record that he'd ever have notice either and I do not want to lose Mr. David’s Stranger’s case.

I did not cross appeal.

I did not feel that it is necessary to cross appeal in a situation where there is a judgment may have been based on some wrong reasons and I bring this up in my motion to dismiss after the jurisdictional statement was filed.

Sure we go along with the chilling effect and I can understand that from my own experience but I -- that is not on this record, but no notice to this indigent accused is in this record.

Justice Lewis F. Powell: The record does not show the number of indigents who have been provided counsel in the last two years since the statute became effective?

Mr. John E. Wilkinson: No the record does not show.

I believe I have some statistics on that that I could give to the clerk.

Justice Lewis F. Powell: From Kansas?

Mr. John E. Wilkinson: From Kansas, I was going to put them in but I thought that $17,000 would not -- it does not look like even a good deal for the taxpayers.

Chief Justice Warren E. Burger: For Kansas might well decide in the short time and it is not worth the candle and give up the whole idea, is that possible?

Mr. John E. Wilkinson: Or they may decide particularly if this decision stands and they --

Chief Justice Warren E. Burger: Then they would have a choice then, they have no options.

I am talking about independent of any judicial action if they collect an average of a $1000 a month it certainly must cost them something to collect it administratively.

That, if they are let alone, Kansas would conclude that this was an interesting experiment and abandon the whole idea.

Mr. John E. Wilkinson: Except that the attorney general will probably test if there was help to keep down the problems in court so we can get more guilty pleas and we can keep better control --

Chief Justice Warren E. Burger: There is no evidence in this record that that has happened, is there?

Mr. John E. Wilkinson: No Sir.

Justice Thurgood Marshall: Mr. Wilkinson I have a grave problem with this no notice business, you knew about it?

Mr. John E. Wilkinson: I knew about the statute is what you mean?

Justice Thurgood Marshall: You presume to have known about it.

Mr. John E. Wilkinson: Yes sir there is a…

Justice Thurgood Marshall: Is that a problem for you?

Mr. John E. Wilkinson: It is a great problem for me because I was presumed to know the law and did not, and he was to the indigent accused that is presumed to know the law.

The magistrate judge is presumed to know the law, the district judge was presumed to know the law and this indigent accused did not get any notice at all other than constructive notice.

Justice Thurgood Marshall: Well I should assume that the magistrate know that people would assume that the lawyer would tell him what the law was?

Mr. John E. Wilkinson: I think that would, you could assume that if that were the actual case.

I think that due process notice however is talked about actual notice, not constructive notice, not assumptive notice.

Justice Byron R. White: On December 22, 1969 were you in court and in terms of what probation should be?

Mr. John E. Wilkinson: Yes sir I went ahead at that particular time and asked the judge to waive the statute and the indigent --

Justice Byron R. White: Was the indigent in court then?

Mr. John E. Wilkinson: Yes he was.

Justice Byron R. White: The assigned counsel asked the district judge to enter nor not requiring the defendant to pay back.

Mr. John E. Wilkinson: That is right.

Justice Byron R. White: So he knew about it then.

Mr. John E. Wilkinson: After the fees have already been earned so to speak.

Justice Byron R. White: After then or earned but there hadn't been any judgment entered yet?

Mr. John E. Wilkinson: No sir and the judge said he did not have any authority.

Justice Byron R. White: Well I know, but there hadn't been any judgment entered yet, although he had to have notice before that by mail that he was suppose to pay it?

Mr. John E. Wilkinson: Not at that time, well yes he did at time.

Justice Byron R. White: (Voice overlap) So he had notice before there was any judgment entered?

Mr. John E. Wilkinson: That is correct.

Justice William H. Rehnquist: What is your due process contention and what other notice should he would have you say?

Mr. John E. Wilkinson: At the time he was to be afforded or provided a court appointed counsel.

Justice William H. Rehnquist: Well that is simply a question of knowing the substantive basis on which a judgment might ultimately be entered, is it not?

Mr. John E. Wilkinson: Well he did not know that.

Justice William H. Rehnquist: Well what if ever of our cases ever held that specific notice of subjecting a provision of a particular law must be given to an individual before he could be made subject to it?

Mr. John E. Wilkinson: I think Walker versus City of Hutchinson, the due process notice in them, the domain case.

Justice William H. Rehnquist: That was a lien and foreclosure, that was an action against a particular piece of property, was it not in Walker?

Mr. John E. Wilkinson: Yes sir.

I think you are talking about essentially not property as such, but you are talking about a person's ability to make his way in the society.

Justice Harry A. Blackmun: Mr. Wilkinson I suppose in this lawsuit you are on your own.

Mr. John E. Wilkinson: Yes sir.

Justice Potter Stewart: I notice in your motion to dismiss the appeal that you filed here you did indicate to us that the primary issue before the Three-Judge Court as you saw it was whether or not that David Strange has been given notice at the time counsel was appointed to him that he would be charged with paying that counsel in the event he ever had any money and that was a matter that the district, the Three-Judge District Court eventually simply disregarded.

Mr. John E. Wilkinson: Yes sir.

Justice Potter Stewart: So I suppose if we should, in the event that -- in the event that this Court decided that the District Court was wrong on the constitutional issue it did decide we should remand it to the Three-Judge Court to decide the questions that you really thought were the primary questions in the case?

Mr. John E. Wilkinson: I think that would be the case, Your Honor, because it was brought up before them.

I do not think it is necessary in view of the admission of the United States that there wasn't any notice and I had argued and I do not think that it was necessary for me to cross appeal.

Justice Potter Stewart: Right.

Justice Byron R. White: Now there was no deterrence in this case at least that's clear?

Mr. John E. Wilkinson: Well he had no notice, we do not know whether if there was --

Justice Byron R. White: He did have notice, he was not deterred.

He didn't have notice, he was --

Mr. John E. Wilkinson: I have to admit that there was no deterrence in this case and I admitted it --

Justice Byron R. White: So you must go on -- so the Three-Judge Court decided that the case was not before us.

Mr. John E. Wilkinson: Well, they -- I tried to --

Justice Byron R. White: And this is not the case you presented to them anyway?

Mr. John E. Wilkinson: That is right, that's right.

There was another case, there were other cases --

Justice Byron R. White: You were saying that he did not know anything about what the harm was and that he should not be saddled with debt that he did not know he was going to end with.

Mr. John E. Wilkinson: That is right.

Justice William H. Rehnquist: Well I suppose you can in argument to the Three-Judge District Court though make an argument that your client has been saddled with this $500 judgment and it is invalid, the law imposing it because it would have a deterrent effect on other people even though it may not have that on your particular client, whether the court accepts that maybe something else, you were standing there?

Mr. John E. Wilkinson: That is what the Three-Judge District Court did.

Unknown Speaker: To limit --

Mr. John E. Wilkinson: Yes and I think justifiable.

Justice Byron R. White: You mean it is overbroad?

Mr. John E. Wilkinson: [Laughter] Well, I think they consider this sort of a class action, accused in other similarly situated and they took into consideration if they had another case --

Chief Justice Warren E. Burger: More or less rendering judgment at large.

Mr. John E. Wilkinson: That is right.

I would like to make one statement about fraudulent conveyances if you want to get talking about --

Chief Justice Warren E. Burger: Was there any such problem in this case?

Mr. John E. Wilkinson: No sir.

It would seem to me that it would be unnecessary for the state to have such statute if someone makes a fraudulent conveyance in these circumstances.

The state would have fraud practiced upon him and could exercise its common law remedy.

This is another thing Mr. Justice why they went into 3113 (b) which dealt with fraudulent conveyance that they declare the whole statute unconstitutional.

I was reading dealing this 3113 (a).

I did include them in my petition.

I included them both in my petition that the facts of the case only relate to 3113 (a), recodified as 4513 (a).

Regardless of what you find the situation to be with the Three-Judge District Court in making an overbroad decision I want to reiterate that their decision, that the decision of Gideon versus Wainwright is sound.

This statute tends to impede and infringe upon that decision, when you take into consideration that we were bringing it for as the District Court did, we were bringing it for the indigent accused, this particular indigent accused and other similarly situated, that this Three-Judge District Court was justified in finding on the basis of Gideon versus Wainwright that he must have free counsel in order to provide him with a basic fundamental right to counsel.

A necessary fundamental right to counsel, it is not in my estimation a right that needs any subtleties attached to it as this statute does.

I urge the court to uphold the decision of the Three-Judge District Court and to reiterate again that in this society, we need to provide free counsel to the indigent accused.

I thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Wilkinson, thank you Mr. Collister.

The case is submitted.

Featured:

Schilb v. Kuebel - Oral Argument

Thu, 23 Aug 2012 18:19:16 +0000

Case:

Schilb v. Kuebel

Media File:

70-90_19711012-argument.mp3

Related Transcript:

70-90_19711012-argument

Transcript:

Argument of John J. O’toole

Chief Justice Warren E. Burger: We will hear arguments next in number 90, Schilb against Kuebel.

Unknown Speaker: Your honor prior to proceeding I would like to make a motion.

Chief Justice Warren E. Burger: Would you just protest this event for a moment that we can clear this counsel?

Mr. O’Toole, you may now proceed.

Mr. John J. O’toole: Mr. Chief Justice, may it please the court, I moved that James A. Rooney be permitted to argue pro hac vice on behalf of the appellee in this case, he is a member in good standing of the bar of Illinois but he has not been a member for more than three years.

Chief Justice Warren E. Burger: You motion is granted for the purpose of this case, so you may proceed Mr. O’Toole.

Mr. John J. O’toole: In 1963, 75th General Assembly of the State of Illinois revamped our entire bail procedure, and they did this for two-fold reasons and the main and the most important one was to assure that all persons regardless of their financial status would not be unnecessarily detained a waiting trial.

As an ancillary blessing of the system we have practically eliminated the Bondsman System in the State of Illinois.

Basically, what this legislation did was to enable a person accused of a crime to gain his pretrial freedom in one of the three manners, under 110-2 he could make an application for release on his recognizance, under 110-8 he could post the full amount of the bond, I mean the bail set by the court in either cash, stocks, bonds or real estate in double the value, or he could deposit 10% of the full amount of bail under 110-7 and all of this was very good and has been very effective.

But in doing so, they put in one anachronism and that is they impose a cost on the individuals who are released under 110-7, those that make a deposit of 10% of the full amount of bail.

In this case, John Schilb and all those other similarly situate sought and received their release under 110-7 and they were all charged a 10% bail cost upon their release or conviction.

Now we contend that this imposition of a cost on this one segment is unconstitutional for all of the people involved here seek one end and that is to be released so they could prepare for trial and not to be subject to pretrial incarceration, yet they impose the burden of supporting the entire system on one segment of that class.

The second--

Justice Harry A. Blackmun: Let me ask you do they -- have they imposed the 1% on those who deposit a 100%, he would not be--

Mr. John J. O’toole: Oh no, I think there is -- as the argument develops Mr. Justice Blackmun, you will see that if there was an over across the board imposition of the cost, I would still alleged that it would be not proper in that it could never be imposed upon indigents, true indigents, nor could it ever be imposed upon a man who is found innocent.

So, just across the board statute I do not think would solve our judges --

Unknown Speaker: You mean even if it were simply that everyone has set released under it either of the three provisions would pay $10 (Inaudible), is it still like that?

Mr. John J. O’toole: I think it would be wrong, when it became to a true indigent or to a person that was innocent.

Unknown Speaker: True indigent, might be if he could not pay up, that would be one of problem.

But you would also say it was unconstitutional as charge found innocent--

Mr. John J. O’toole: Right.

Unknown Speaker: --of the $10, is that it?

Mr. John J. O’toole: That is part of our contention before this court, where it is not only this class aspect where we say one segment is segregated out in burden.

But in addition to that, we also contend that these people who put up the 10% simply cannot afford the full amount of bail and they are penalized in their quest for justice in contrary to the long line of cases since Griffin versus Illinois.

Chief Justice Warren E. Burger: Not necessarily true.

A man might be in business and want to keep his cash, keep his cash flow position very liquid.

So, instead of buying a bond, he put up the 10% even though he had a hundred thousand dollars in the bank.

Mr. John J. O’toole: Oh yes, your honor.

I buy this fully that that statement was not meant to be a universal.

I think the statistics will bear out which we have cited some in our brief that as the amount of bail goes up, the ability to make the full bond decreases sharply and whereas some people might choose to only put up the 10%.

The fact is, that he has a choice but what about that large segment of our population?

And actually this is a moderately poor, the working man, who just does not have a sufficient assets to make that choice.

He has no choice, he has to go in and make the deposit and then he is subjected to the burden of supporting the whole system.

It is not his choice.

Unknown Speaker: I know, but everybody who walks with a lower amount pays it.

Mr. John J. O’toole: Yes, yes your honor—that was an element.

But then, if it is unconstitutional to even impose it on one person, I think the whole statute--

Unknown Speaker: Well, I gather your class here is not relative to indigent--

Mr. John J. O’toole: No, I will agree.

Unknown Speaker: Indigents, is it?

Mr. John J. O’toole: A true indigent is helped in one way, by 110-7.

And he is harmed in one way by 110-7F which is the cross provision.

If I were a true indigent, I would have a far better chance of borrowing the money if I could signed the back of that bond receipt and the one who lends it on me was willing to get full amount back.

As it is now, he only gets 90% of it.

Unknown Speaker: Yes but, you mean the true indigent would not have a 10% of those, will he?

Mr. John J. O’toole: Oh, I agree with you, your honor.

We are talking about the people who are relative.

Bail--

Unknown Speaker: But would it be about people here who, if I understand it correctly, who have posted the 10%--

Mr. John J. O’toole: That is right your honor.

Unknown Speaker: And whose complaint is that when the purpose of the bail has been served, they get back only 90% of what they deposit.

So we are really about indigents as indigents?

Mr. John J. O’toole: No, actually not indigents in the true sense of the word.

Unknown Speaker: But you are saying that the statement did not say to anybody, we will relieve you from the obligation to post a 100% of bail which is parole system, we will give you the option -- we will give you the chance of getting out on bail by depositing 10% but in that case, it is going to cost you something, it is going to cost you 1%.

Mr. John J. O’toole: I do not think they can do it if they do it in an equal manner.

Unknown Speaker: Do they say that to everybody?

Mr. John J. O’toole: Excuse me Your Honor.

Unknown Speaker: They say that for everybody?

Mr. John J. O’toole: I do not think that they have the power.

I think that the way that it is set up here is that, it is just not constitutionally permissible.

Unknown Speaker: But if I were a rich man or if I had some money and the State gave me this charge, it would still be invalid to me?

Mr. John J. O’toole: On the 10%?

I do not think that it could be practically segregated out to a question of proof in each case if an individual actually had the option, but the question remains that as long as all people do not have a choice, this is their only means of getting out on bail, they should not be charged with the burdens.

Unknown Speaker: Well as I get it-- if you have -- those who were released on own recognizance.

Mr. John J. O’toole: Right your honor.

Unknown Speaker: --are charged no fees.

Mr. John J. O’toole: Not at all.

Unknown Speaker: -- to support the bail system or administration, right?

Mr. John J. O’toole: Right your honor.

Unknown Speaker: Those who post to 100% are charged no fees.

Mr. John J. O’toole: Are charged no fee.

Unknown Speaker: The only ones who pay are those who post 10%--

Mr. John J. O’toole: That is right.

Unknown Speaker: And they are charged 10% of the 10%.

Mr. John J. O’toole: 10% of the 10% or a net of 1%.

Chief Justice Warren E. Burger: Going back to hypothetical, if someone opposes, do you require, I would like to get your answer again, suppose the statute provided for a $25 fee for everyone for administrative override, where they released on its own recognizance, where they released on a bail bond or they released on 10% or a 100% what about that?

Mr. John J. O’toole: I would answer the question in the same manner, Mr. Chief Justice and that would be that I think that it would valid as to all except the true indigent and except to those that are found innocent.

Chief Justice Warren E. Burger: Well by definition of the indigents, for all practical purposes has a waiver (voice overlap) which you cannot (Inaudible) as it were, then you would say it is invalid as to the person ultimately found innocent.

Mr. John J. O’toole: Right your honor.

Chief Justice Warren E. Burger: Now, what theory is that?

Mr. John J. O’toole: Well the theory of that is what—

Chief Justice Warren E. Burger: Constitutional Theory?

Mr. John J. O’toole: Constitutional Theory.

This court entered a decision in 1966 in Giaccio versus Pennsylvania in which a jury in Pennsylvania was permitted at the finding of a person innocent to impose court trust.

And that the court in majority opinion held that the statute was vague.

But the concurring opinion of Mr. Justice Stewart stated that in his opinion, it was a violation of due process, rudimentary due process, and I think that that is the law of the land and that should be the law in regard to this case, that in no manner can anybody impose a cost attended to a criminal proceeding and individual found innocent.

And if there is any question as to whether that is an integral part of a proceeding is probably the most important aspect because it affects the man’s family, it affects the outcome of the trial or it affects the severity of a sentence, unduly burdens of man, he losses his job and that—

Justice Potter Stewart: Mr. O’Toole, that was somewhat different at least in chronology in the Giaccio case because there was a trial and the jury found the defendant innocent and then, only then, of course the defendant required to pay something after he had been found innocent but surely, there is a cost.

There are many cost imposed upon people and under charges of criminal offenses if not monetary cost.

There is a cost of a -- a possibility of incarceration if he cannot make bail and the various others social cost and personal and psychological costs to go along with just being the target of the criminal charge even if that person is eventually found not guilty.

There are all sorts of cost, either the constitution or any judges interpreting or applying can really-- do we want to apply those costs.

Mr. John J. O’toole: I agree with you Mr. Justice Stewart that there are other costs that are created by our society.

Justice Potter Stewart: By just the levering of a criminal charge.

Mr. John J. O’toole: Right.

But this is not created by our society.

This is created by our legislature.

Justice Potter Stewart: Well and that is acquired by the society as far as (voice overlap).

Mr. John J. O’toole: It is a cost that's imminent to that proceeding.

The interesting thing to note too in relation to that cost is that prior to enactment of this new Act when we had the Bondsman, the court perform the same service, handled the same paper and never charged anybody anything.

Unknown Speaker: (Inaudible).

Mr. John J. O’toole: No.

But now, the legislation—

Justice Potter Stewart: The expense from the point of that the defendant as I gather is much, much higher until you got this so called reformed legislation.

Mr. John J. O’toole: That is right your honor.

But basically, I believed, that the difference here is that we cannot remedy the aspect of the social evil but we can remedy this cost.

Justice Harry A. Blackmun: Mr. O’Toole, you prevail here, you anticipate that the old Bondsman system will be revived?

Mr. John J. O’toole: Oh no, your honor, Mr. Justice Blackmun, that is farthest thing we want to make that eminently clear, we believe this to be very good legislation.

We feel this aspect of it is wrong and definitely not, there would not be any reincarnation of the Bondsman.

Unknown Speaker: Well obviously, there is an expense to administering this purpose.

Mr. John J. O’toole: Yes your honor.

Justice William J. Brennan: And the state somehow has to pay those expenses.

Now if you prevail, where are they going to get the money to pay the cost of administering the bail group?

Mr. John J. O’toole: The same place they got it before Mr. Justice Brennan.

Justice William J. Brennan: Out of what?

Mr. John J. O’toole: Back into old system, on the bond forfeitures, they realized X balance.

Today, under out statute, our sheriff, our state’s attorney is required to collect bond forfeitures and they go after people that do jump bond and that if a person had the full amount of bail up or he has got 10% up, right at that point you have costs coming in or cost reimbursement.

In addition to that, it is quite a record in the very foundation, the Columbia Bail Study and various other findings that the local and state and federal governments are saving millions and millions of dollars a year due to the fact that when we have enlightened legislation such as this that the jail population slips significantly and that our fewer people incarcerated waiting trial.

Now —

Unknown Speaker: Of course they could put $5 bail, they can impose $5 ahead on everyone who has admitted the bail.

In other words (Inaudible)

Mr. John J. O’toole: I will only say that we are having trouble in the area of a true indigent and I still feel that this is cost attending—

Unknown Speaker: But you would not have anymore trouble in the areas of the true indigents and you have worked with this present system where a true indigent is required to put up 10% of the bail and if he cannot pay it, he stays in jail.

Mr. John J. O’toole: That is right your honor.

The true indigent, there is no problem in that area.

Unknown Speaker: Mr. O’Toole, what do you think was the supposed policy behind the distinction between the 10% people and the 100% people?

Mr. John J. O’toole: Well, I believe this was the idea behind it, is that at the time or prior to the enactment of legislation under the Bondsman system, an individual could give the Bondsman 10%, the Bondsman in most cases would retain the entire 10%.

Unknown Speaker: You do not think it was that the 10% people would be more likely to jump bonds of those who have done a 100%?

Mr. John J. O’toole: I do not believe so, your honor.

I believe basically, it was a question that they felt if they were -- if these people were paying a charge to the Bondsman, they can pay a charge to the clerk, a charge which was never imposed on them before, but there is one basic difference in that too, is that our clerk does not assume liability for any bail jumping as the Bondsman did.

And there the cost was justified by a possible liability.

Justice William J. Brennan: It is definitely because the election that of the suspect, whether they deposit 10% or a 100% or what the judge say, in your case, you will have to deposit a 100% (voice overlap).

Mr. John J. O’toole: Mr. Justice Brennan, in the State of Illinois it is 10% flat, no discretion in the court at all.

Justice William J. Brennan: I see, in other words, the suspect might make the election whether you to deposit 10% or 100%

Mr. John J. O’toole: If he has--

Justice William J. Brennan: --if he had denied release on the his own recognizance.

Mr. John J. O’toole: Right, if he has the necessary funds.

Unknown Speaker: And this is a bailable offense.

Mr. John J. O’toole: Yes, that is right your honor, that there are a couple of offenses in the State of Illinois which are not bailable.

Chief Justice Warren E. Burger: Now going back to the preposition I suggested before and let me make a variation of it, suppose a man had a million dollars in the bank and they fix $100,000 as bail, now he has got that money out earning interest, is he likely to put up the 100% or is he likely to put up 10%?

Mr. John J. O’toole: I do not know what that individual would do perhaps he would elect to put up the 10%.

Chief Justice Warren E. Burger: (Voice overlap) it is arithmetic and common sense to put up 10%.

So it is not a poor-man rich-man argument really at all, is it?

Mr. John J. O’toole: Well, I think when you get into the poor-man rich-man area Mr. Chief Justice, this court -- in a bail application Mr. Justice Douglas said, that having that poverty in the area of bail is merely whether you have enough money to pledge for your freedom.

This was recognized by our former Chief Justice in a speech before the National Bail Conference also, that when it comes to bail, the question of poverty is a relative concept.

It might bond as a thousand dollars and I have 900.

I am a poor man because I am going to be incarcerated waiting trial, that is the concept.

Also, we have to take into – a factor I could you an example saying the State of Illinois that if an individual owned a larg ebuilding with a million dollars and he had a mortgage of a 100,000, he could not pledge that on a real estate bond because our statute requires unencumbered, that he would be relatively poor as far as that was concerned and he would have no choice as to whether he was going to deposit full or 10%.

We feel that that it is very clear from (Inaudible) that the one segment is definitely discriminated against.

We feel the relative is poor discriminated against and we feel that this is a cost pertinent to a criminal proceeding which should not be recognizance.

Chief Justice Warren E. Burger: Mr. Rooney, you may proceed whenever you are ready.

Argument of James A. Rooney

Mr. James A. Rooney: Mr. Chief Justice, may it please the court.

I think that the best way to understand why the Illinois 10% deposit provisions are constitutional to take a look at what we had in Illinois before they were passed.

Prior to 1963, when the whole bail procedure in Illinois was overhauled, we had two ways of getting out of the jail once bailed had been set.

First of all, you had a release on recognizance which was not utilized, that was perhaps cured, perhaps not cured if the release on recognizance is doubled in Illinois since the bail reform statute went through.

It has doubled.

Unknown Speaker: Yeah, the number released on --

Mr. James A. Rooney: The number released on recognizance has double and it is still not an extremely large percent.

But we still have to release on recognizance.

The only other way you can get out prior to 1963 was either to have yourself or somebody else for you pledge the full amount of the bond.

Now because you have to pledge the full amount of the bond, there were defacto three categories of people.

There were the rich who could put up the full amount of the bond, there were those who could not put up the full amount of the bond but could go to the bondsman to pay his fee and get out that way, and then there were who really -- the truly indigent who just did not have the money even to go to the bondsman, they have to stay in jail, attending the trial of their case.

Now, I think there is a difference of opinion as to the purposes of 110-7, the 10% bail deposit provisions.

They were, first of all, designed to get rid of the bail Bondsman in Illinois.

Unknown Speaker: What for is that 10% should be paid?

Mr. James A. Rooney: The 10%, usually cash.

Unknown Speaker: Usually, what are the forms may it take?

Mr. James A. Rooney: The statute says that, money, it is all.

Unknown Speaker: So, it has to be cash?

Mr. James A. Rooney: It has to be cash.

The other purpose of the Bail Reform Act 110-7 was to reduce the financial imposition on those who had to go to the Bail Bondsman.

Now, the reason why to get rid of the bail bondsman is fairly obvious, they have been the villains for all the legal journals over the last 20 year.

There were all sorts of abuses including some scandals that unfortunately involved judges and the Assistant State Attorneys in Cook County and throughout the State of Illinois but that does not mean that bail bondsman should still be around just because we had judges and Assistant States attorneys involved.

The big problem was that, by statute in Illinois, a bail bondsman could charge 10%.

Now, that was suppose to be the maximum limit that bail bondsman could charge but unfortunately in things like this, that became the minimum and it finally got to the place where the bail bondsman, not the judge, held accused to the jail in many cases because if you are unable to post the full amount of the bond and you want to go to see the bail bondsman, the bail bondsman will take a look at you and you will decide whether or not you are a good risk.

If you are not at good risk, the price went up and so 10% was the beginning of the bargaining.

Now other scandals that involved the bail bondsman having judgments vacated and not returning the pledges to the defendants, and of course the way they got the defendants back to the courtroom if the bond had been jumped was notorious.

So, what the Illinois legislature wanted to do is first of all, get rid of the bail bondsman, second of all, make it a little bit less expensive for those who are not exercising a constitutional right but exercising really statutory right to get out.

When you went to the bail bondsman, you put down the amount of your bail, excuse me, the 10% with him, the statutory amount and then the bail bondsman all he did was was sign a bond, he did not have to put down any money because he had money down in his bank, that is the way it worked.

But when you put down that 10%, that is the less you saw that -- no matter whether you were innocent, not-guilty, you forfeited 10% of the amount of your bond.

Now, I think a question was asked, where do we get the 10% and the 1%?

Unknown Speaker: Mr. Rooney then tell us, what you think is the purpose of the 1%?

Mr. James A. Rooney: The purpose of the 1% is to cover basically the expenses of the clerk in writing the bonds, keeping records on the bonds, returning forfeited bonds—it is a big operation.

Unknown Speaker: And then what is in the charge if the man who puts a 100% down?

Mr. James A. Rooney: It is not charged to the man who puts a 100% down because we feel that he is exercising a constitutional right.

We feel that the constitutional right is the right to a reasonable amount of bond.

Now, the man who gets the 100% bond, he is exercising a constitutional right to what his reasonable amount would be.

A man is exercising the 10% right is exercising a statutory right which we feel -- we are not letting him out on reasonable amount of bond, we are letting him out on 10% of what a reasonable amount would be.

Unknown Speaker: (voice overlap) is it hard for them to justify those who are out on their own recognizance?

Mr. James A. Rooney: It makes it harder to justify those who are on their on recognizance.

Unknown Speaker: What if we charge it to them?

They are not necessarily indigent.

As a matter of fact that's what likely they are.

Mr. James A. Rooney: We think they are little differently situated than those—

Unknown Speaker: Not expense wise to the system?

Mr. James A. Rooney: No, not expense wise to the system but before you are released on recognizance, the judge makes a a defacto but rather extensive look into your background and we think that these type of defendants, since it is more likely that they will show up and it is all relative, the sort of discretionary with the judge , the release on recognizance, since they more likely to show up do we think that there is sufficiently, differently situated as not to charge them.

Unknown Speaker: Well exactly -- let us now ever consider a fact free basis instead of--

Mr. James A. Rooney: I do not believe so.

Chief Justice Warren E. Burger: Certainly the cost to the state is across the board, is it not?

Mr. James A. Rooney: The cost of the state is across the board and in the stipulation of facts when we process a bond where there are securities or mortgage and the un- mortgaged real estate are put down, there is perhaps a slightly greater expense to the state then when just cash is put down under the 10% --

Unknown Speaker: Have other states adopted systems like the State of Illinois?

Mr. James A. Rooney: Not--

Unknown Speaker: Have they gone to the 10% deposit and so forth, do you know whether they charge?

Mr. James A. Rooney: No, it is unique.

Illinois is unique in charging a 1%, so you have a total (voice overlap)

Unknown Speaker: They charge a flat rate or what?

What do the others do?

Charge nothing or charge a flat rate?

Mr. James A. Rooney: Well, a good example is the federal statute.

In the federal statute, it is up to the discretion of the judge whether he lets you out at a 100% or 10%.

Now, there are all sorts of other conditions you can put on your bond.

In Illinois, the legislatures limited the discretion of the judges to releasing a man on his recognizance or setting a dollar amount of bail.

The legislature has not vested the judge with that type of discretion, perhaps by an amount of 10%, perhaps not by the amount of 10%.

Once he sets the amount, it is automatic.

Justice Thurgood Marshall: Mr. Rooney, the fact that 1%, is it not $100,000 bond and a $1000 bond are the same kind of papers, just fixing the amount of time--

Mr. James A. Rooney: Correct.

Justice Thurgood Marshall: I mean, why does not he just have flat rate of $10 for each bond.

Is anything in history on that at all?

Rebuttal of John J. O’toole

Mr. John J. O’toole: Yes, there is something in the history.

The committee that recommended the legislature that this Bail Reform Act be adopted found that, first of all, there was a 10% charge as the bail bondsman charge and that the general bond forfeiture rate brought into the state 1%.

Justice Thurgood Marshall: I see.

Mr. John J. O’toole: Out of all the bonds that are forfeited, almost all of them were written by bail bondsman at that time.

We got a return of 1% of the amount of money, so that is why they chose the 1%.

Chief Justice Warren E. Burger: At any given time do you know what is the balance or the average balance in all of the accounts maintained to this 10%?

Mr. John J. O’toole: The average balance, I can tell you how much the state ends up making each year in Cook County.

In Cook County, we end up making about $1,250,000 a year.

Chief Justice Warren E. Burger: And the interest?

Mr. John J. O’toole: In 1%.

Chief Justice Warren E. Burger: Oh no, I mean in interest, this money whether it is a 100% or 10% is put in the bank I assume, is it not?

Mr. John J. O’toole: I assume so.

Chief Justice Warren E. Burger: I assume also if we put it in the bank it pays interest.

Mr. John J. O’toole: Our public officials would be -- were missing their duty if they did not put it in that type of an account.

I do not know what the -- I guess the interest would be 1,250,000 times whatever the prevailing bank rate would be.

Unknown Speaker: That's is 1% not 1,000,000, we are taking about 10%, the 10% deposit, the total of all debts, 10% deposit is how much?

Mr. John J. O’toole: That would be 12, 12 million.

12,500,000 over a year.

Unknown Speaker: (voice overlap) that much money--

Mr. John J. O’toole: I do not know what the cash flow is and how much we do have in the accounts at any given moment.

Chief Justice Warren E. Burger: So let us assume 4%, that is quite a lot of money that is coming in.

Mr. John J. O’toole: Yes it is, but I tried to do some research on how much it costs the state to process all the bonds and it was rather a few.

I could find out that certain departments that are concerned only with bonds, the two departments I am talking about are those that once the bonds are executed are responsible for keeping track of them and that the bond refund section and those two sections, the expenses around each year are about $415,000.

This does not count at all, the salaries of people who write bonds and that is hard to find out because some are written at the police station by policeman, some are written by clerks in the courts, and we just could not find the figures on it, we tried.

Now, the difference between 1963 and now is that Illinois is granting a substantial benefit to those same people who would have to go to the bail bondsman.

The indigents still have to sit in jail.

But there is certain group, just sort of medium group between being able to put up the 100% and going to the bail bondsman.

But they do not have to go to the bail bondsman and pay 10%.

Now what Illinois has done is, let us say you got a bond set a $100, the person will put down $10 and be released and the state would charge him $1, so what in effect has happened is the State of Illinois has loaned him a for the period of the case, no matter how long it took and for John Schilb it took five months, they have loaned him $90 and they are charging a $1 interest for the term of the case and no bail bondsman can match that and that is the really the reason the bail bondsman vanished in the Illinois Courts.

Unknown Speaker: Can you make any suggestions whether the state considers that a fellow puts up a 100% and provided the state with money from which the state earns this interest enough so that he makes a contribution not unlike that of the 1% charge against the fellow who puts his own recognizance.

Mr. John J. O’toole: Yes he does during the term that the 100% is put up, that money also is invested just like the 10%.

He is not making a contribution.

I do not know what the figures on that also.

Unknown Speaker: (Inaudible).

Mr. John J. O’toole: Correct, he does not.

Chief Justice Warren E. Burger: Do you have any information of how many people who have put up a 100% in money?

Mr. John J. O’toole: Yes, in the Circuit Court of Cook County, 90% of the people put up the 10% bond.

About 10% put up the 100% and--

Chief Justice Warren E. Burger: And the 100% money be in money or real estate?

Mr. John J. O’toole: Might be money or real estate or bonds or bonds or securities.

Unknown Speaker: It has to be encumbered real estate.

Mr. John J. O’toole: An encumbered real estate.

Unknown Speaker: (Inaudible)

Mr. John J. O’toole: I am sure although we have got quite a few more (Inaudible).

The reason that 90% of the people put up the 10% bond rather than the 100% bond is based on I think on the return that they can get.

There are a lot of rich people who would much rather put up 10% and have the other 90% working for them because the state loans money at such a fantastically low interest rate.

So, I do not think that really rich man poor man makes much difference here because anybody given a choice, if they think it out, will put up the 1%.

For those poor people, the state is loaning the money at such a fantastically low interest rate that I just do not think rich man poor man applies.

Unknown Speaker: What about the recognizance people?

Mr. John J. O’toole: The recognizance people, as I tried to make clear, State considers them substantially different than the people who required the money.

Unknown Speaker: I know you said that but I do not understand it.

They are different in the sense that they do not have to put up any money.

Mr. John J. O’toole: But there are also different type of individual that the judge would not have let them out.

Unknown Speaker: That is true, but are you saying that you are deciding in advance there are certain kind of people as that people and a hundred people--

Mr. John J. O’toole: No, but the judge has to make that type of determination.

Unknown Speaker: (Voice overlap)in extensive expense of administering the program.

There is certainly an expense involved in connection with those who are released on their own recognizance that (Voice overlap)

Mr. John J. O’toole: Correct, their expenses are the same as putting up cash bond.

I am sorry I did not understand the question which you asked.

Unknown Speaker: I know the State considers them different but how are they different so that a state may satisfy their entire burden out of this one group?

Mr. John J. O’toole: They are substantially different and the judges made a decision that they are most likely to return to the court and therefore they need not to be burdened with this type of expense as opposed to the others.

Unknown Speaker: --Just made a decision that it is not going to require the people involved to contribute to the administrative cost of the cash bond system but not to the collateral bond system but not to the recognizance bond system and the question is whether or not that can be rationally supported?

Mr. John J. O’toole: I think that since we are granting to this people, a new substantial benefit—

Justice William J. Brennan: You are letting the recognizance people even a greater benefit that you are the 10% people and also from what you say it probably administratively costs a little more to the recognizance people.

So you can not justify it that way, can you?

Mr. John J. O’toole: The way I justified is over past this stream, the Illinois has never charged people out on the recognizance bond —

Justice William J. Brennan: Historically and whether or not it is a rational classification.

Mr. John J. O’toole: Well, I do not think we can charge them because they are exercising their constitutional right also.

Justice William J. Brennan: Well, much more than their constitutional right, constitution probably only guarantees in the right to not having to – not to have to pay excessive bail, does it not?

Mr. John J. O’toole: Correct.

Justice William J. Brennan: What is this Appendix B in the appellee's brief seems to bear on?

You answered a lot of the questions that have been asked you, but what are D-bonds and what are C-bonds?

Mr. John J. O’toole: That is an official designation.

There are three types of bonds I know are really High bonds of which are personal recognizance, D-Bonds which are the 10% bonds and C-bonds which are bonds when a man has posted the full amount.

In Cook County when we found that where the petty offenses, where the amount of bail is $25 or less, nobody posts a 10% bond.

Justice William J. Brennan: Well, does it at all -- you require a minimum of what, $25 or something?

Mr. John J. O’toole: On parking tickets there is a different type.

But on most cases, it is $25 to a minimum of $5.

We have also found that once you get over $25 that the amount, the percentage is 90%, it will post the 10% and 10% it will post the 100%.

Now, other that, about 10% to post to the 100% bond.

There are Illinois Supreme Court rule which govern certain types of offenses where the Illinois Supreme Court by rule and it is specified in the bond statutes that Supreme Court made specified by rule.

The Supreme Court specifies $500 cash, which means that 10% is not available to them, and that is anomaly and the Illinois Supreme Court has put that in mostly on traffic offenses and I believe it is to prevent practices of setting too high a bond by speed track judges, I believe that, that is the policy and I do not really understand —

Justice William J. Brennan: Those rules are not involved in this case.

Mr. John J. O’toole: No, there was an argument made in the Illinois Supreme Court on the petition for re-hearing that perhaps one of the Illinois Supreme Court rules would govern at 100% should have been posted rather than the 10%.

That petition for hearing was denied by the County.

Justice William J. Brennan: And that is washed out the case here.

Mr. John J. O’toole: I believed it to be Your Honor.

The Supreme has passed and said the 10% would properly apply here.

Justice Thurgood Marshall: (Inaudible) that the original one that of the three systems of bail in Illinois, there is only one that get 1% charges.

Rebuttal of James A. Rooney

Mr. James A. Rooney: Only one.

Justice Thurgood Marshall: And all three of them need court officials to do the paperwork, all three of them.

Mr. James A. Rooney: Correct.

Justice Thurgood Marshall: And the only basis of this 1% on this would be because of this special new thing?

Mr. James A. Rooney: No, because we are giving them a special benefit.

We are releasing them at 10% of the amount of the reasonable bond.

Justice Thurgood Marshall: But you could release him for nothing, on recognizance.

Mr. James A. Rooney: Yes, we could.

That is not utilized.

Justice Thurgood Marshall: That is what I think is the petitioner’s argument.

Mr. James A. Rooney: Well, I did not perhaps understand it that way.

Justice Thurgood Marshall: I think the difference is that you take position that once you reach to the point where he is not eligible (Inaudible).

He is in a different category and if he gets his 10%, he has to pay for that because he does not have to put the money, that is your position, is it?

Mr. James A. Rooney: Correct and as I try to explain, I believe that is because judges made a determination before we get to that point that he is substantially different.

Unknown Speaker: But when one is released on his own recognizance, does he execute, I know that you said, I-bond, does he execute a bond, a personal bond in the amount 15,000, 10,000, 25,000?

Mr. James A. Rooney: Correct.

Unknown Speaker: Whenever the judge fixes?

But the only difference is that he executes a personal bond without surety, really, is it?

Mr. James A. Rooney: Correct, absolutely right.

Unknown Speaker: He does not sign the bond that agreed to show up or not?

Mr. James A. Rooney: Yes, he just signs a bond promising that he will show up.

Unknown Speaker: But if he does not, he can forfeit 15,000 --

Mr. James A. Rooney: He forfeits the face amount of the bond.

Unknown Speaker: I am not sure (Inaudible)

Mr. James A. Rooney: Well, it depends on the type of the offense.

The judge sets what the amount of bond would be except for the fact the he feels this accused person is a type of person who is most likely to show up for trial and therefore the state will not have to go to additional expense of going out and looking for him and bringing him to trial.

One of the problems with the bail bond system was that the bail bonds, it was not the man that returned to defendant if the bail was jumped.

That type of value is very speculative, most of them were picked up by police officials and brought back to the court, that is where the bail bonds did not go through really any expense that way.

Unknown Speaker: Your personal recognizance is that typical kind of --

Mr. James A. Rooney: I think it is universal --

Unknown Speaker: So the bond that is signed by the individual with no assurance.

Mr. James A. Rooney: Yes, I think, it is universal throughout the court system in the United States.

Unknown Speaker: Let me ask you the same question I asked your opponent.

If you lose this case, do you anticipate to return to the old bondsman system?

Mr. James A. Rooney: I do not know how else the State of Illinois can function still having a 100% system.

If you take the 10% fee, you will have 10% system with no fee and it will be mandatory as of right now.

So what that will mean, is that after a judge finds that a reasonable amount of bond will be 100%, it will be allowed down on 10% and we can go in abrogation of the judges discretion in setting by.

Unknown Speaker: So really (Inaudible)-- let us say that the judge set bail on every case to some people and you have to put up the 100%, a lot of people (Inaudible)

Mr. James A. Rooney: Correct.

Unknown Speaker: (voice overlap) puts up 10% or 100 —

Mr. James A. Rooney: Oh, yes, and the 100% and 10% it is up to the defendant.

Unknown Speaker: Entirely.

Mr. James A. Rooney: But on the recognizance —

Unknown Speaker: The law permitted, the law permitted these three ways of identifying the bail law procedures.

Have you ever released anyone there, just (Inaudible)

Mr. James A. Rooney: That is the recognizance spot of what we in Illinois call the I-bond.

Unknown Speaker: Well what (Inaudible)

Mr. James A. Rooney: Oh, correct, I think the state has a —

Unknown Speaker: That is why that any forms of bond, in my state we have on personal recognizance Judge (Inaudible) decided a personal bond of $15,000 if we did not show up and the state would have to reduce that bond and judgement against your property or the judge could say that at many times, I will just accept your promise that you will show up, do you not have that?

Mr. James A. Rooney: It is not utilized that way Mr. Justice.

In closing, I would like to turn to the third point that the plaintiffs raised in their brief and that is that no bond cost can be imposed on any person who has found innocent and they rely on the Giaccio case and in the Giaccio case involved court cost where the jury was given the option really of punishing a person after they found him innocent.

The Illinois Supreme Court has termed this an administrative cost, but I do not think the inquiry has to stop there.

I think that, as was suggested earlier, there are some parts of our society that do not function perfectly and part of it is our criminal justice system and of course there are going to be mistakes where an innocent person, we do find innocent people and those people unfortunately, will have to bear this type of cost and there are might be a type of remedy if the state has absolutely no justification for picking them up just like the – in element of damages in the civil rights actions or in a false imprisonment action, but it is not the type of situation that should be brought up here really on a kind of class action.

And I would like to point out that there was no allegation in this that anybody was indigent, there is no motion for reduction of bond, there is no motion for Release on Recognizance and if the case is here and the plaintiff in this case is really sewing on the head of indigent people, we do not know really anything about him.

There is a stipulation of facts, but the -- it is very sketchy.

It is from down state Illinois, our office did not participate in it, but one of the real problems is that John Schilb might have been one of these people who made an intelligent decision.

He had the money, but he added up in the interest rates and came out and says, I will put down the 10% and I think that if the bond was excessive in this case, it should have been tested the general way by habeas corpus on motion for reduction of bond.

Justice William J. Brennan: Now will you Just summarize for me, what are the state interests that you assert justify this discrimination among the classes?

Mr. James A. Rooney: I think the fact that the state of Illinois is granting to these people a substantial benefit which they did not have before and also pursuing a valid purpose in eliminating the bondsman from the court system justify as the imposition of this type of cost and this quest.

They were the ones who had to go to the bondsmen before and they are the ones who had to pay the 10% before, we are letting them out on a cost of 1%.

We think that is sufficient to designate that class as the one to bear the cost.

Justice William J. Brennan: This case came out of St. Clair County, is it not?

Is it not this Belleville, (Inaudible)St. Clair?

Mr. James A. Rooney: Yes.

Justice William J. Brennan: But, how do you get in as the county states attorney?

Mr. James A. Rooney: It is an interesting situation, we have the same type of class action pending in Cook County and we felt that we had a quite an interest in this case because we handle much of the criminal litigation in Cook County and there is a possibility of loss right now of $2,500,000 to Cook County through a refund of this type of a payment.

Justice William J. Brennan: (Inaudible) St. Clair County is not abidingly interested in deal?

Mr. James A. Rooney: St. Clair County I believe was going to be here, but they called me and said they did not – they are abidingly interested.

They asked our office to handle the deal fr them.

Rebuttal of John J. O’toole

Mr. John J. O’toole: Mr. Chief Justice and may it please the court.

I just wish to make a few observations.

Initially, the issue here is the constitutionality of that cost retention provision.

This system will go on regardless of whether this discriminatory imposition of a burden on one segment is gone away with their net or if I can answer, I believe it was Mr. Justice Marshall, where did the 1% figure come from?

It came from the fact that they got 1% on forfeitures from bondsmen.

Today, they equate very close to that 1% on forfeitures and bail jumping where people deposit 10% and they deposit the full amount.

They are getting the same amount of money that they got before, the only thing they are doing today is they are charging one segment across where they never charged them -- across anybody across before.

That is basically what it is.

Justice Thurgood Marshall: I am confused, they would have paid 10% to the bond, like these people right here and there would not be any like that?

Mr. John J. O’toole: That is right Your Honor.

Justice Thurgood Marshall: So, Illinois says, if you pay us the 10%, we will let you out on the same condition and when the case is over we will give you 9% back (voice overlap) I mean, how do you lose on that?

Mr. John J. O’toole: Well, basically.

Justice Thurgood Marshall: How does this man lose?

Mr. John J. O’toole: That man did not lose at all, I agree with you that they had improved the system, there is no doubt about it, but the difference between the clerk and the bondsman is, the clerk is not having an undertaking to pay the full amount if the guy jumps bail.

Unknown Speaker: But the court would not have undertaken the pay himself, obviously.

Mr. John J. O’toole: Or it all go onto the country treasury, but the county is (voice overlap)

Unknown Speaker: Well, I mean the bondsmen are not plotting this as the case?

Mr. John J. O’toole: No, they are not, definitely not.

We do not want that.

Unknown Speaker: Well, I am worried about these people. (voice overlap) these people who instead of paying 10% have paid 9%.

Mr. John J. O’toole: That is right Your Honor.

Unknown Speaker: I mean, you pay 1%, and they are complaining?

Mr. John J. O’toole: They do not think that they should pay anything because nobody is paying for it.

Unknown Speaker: Well, I would agree that —

Mr. John J. O’toole: (Inaudible)

Unknown Speaker: Yes, Your Honor.

But, in relation to Mr. Justice Brennan’s question, there are several jurisdictions, there are three jurisdictions at present which have a 10% deposit statute such as Illinois too charge no one any cost that has —

Mr. John J. O’toole: What other states?

Unknown Speaker: Iowa and, I think it is Alaska, Your Honor.

Wisconsin last July, July of 1969 put in 10% deposit statute.

They charged the guilty who deposited 10%, 1% and charged the innocent nothing.

And in the state of New York, they have across the board 2%, I believe --

Mr. John J. O’toole: How they were released?

Unknown Speaker: No matter how you are released, but they do not have 10% system such as ours, it is not a true 10% deposit system.

Mr. John J. O’toole: Does the District of Columbis not leverage 10% or something like that?

Unknown Speaker: Well, I think that is under the federal act, your honor.

Now, right after the state of Illinois enacted our 10%, the federal government Congress — 88th Congress, there were three bills introduced in the Senate.

One of the bills was the identical provision that we have here in Illinois and that is 10% in 10% charge.

Those bills died in the committee in the 88th Congress and were resubmitted into the 89th Congress and between the two sessions of Congress, the Congress pulled out the 10% charge, so now there is no charge in the federal system which permits a judge to release a person on less than full bond in his discretion.

Now our system is contra into the federal system and those are the only jurisdictions I know that have any provision for release on less than full.

In relation to the statistics, now we just wish to make one observation in as to all people would make a deposit, their conclusion, if you return to their statistics, you would note one thing that have have not broken down.

Initially, all people who have a bond of $25 or less, this is on minor offenses, must post the full amount, there is not any 10% deposit on $25 or less, so that throws the statistics out a little bit.

The second thing is that on taking a look at their breakdown, in District Number 1 which is the City of Chicago, where 1 out of 47 puts up the full amount of bond.

If you take a look at District Number 3, which is a relatively affluent suburban area, 2 out of every 5 deposit the full amount, and what benefit do they get and why do they do it?

Well one, they have the means to do it, and just as the individual who gets out on his own recognizance and incidentally, Mr. Justice Brennan, there was no amount mentioned in our rare occasion, but then only about 2% of people.

Bail application in the state of Illinois is not at its best, well not in the record, it is just a matter of information that there is a schedule in Cook County for bail, $10,000 for this, Narcotics arrest, take the advice of the narcotics officer, these are the directions that go to the judges.

About 2% are released on their own own recognizance.

Now what benefit or why would somebody who has to full post the full amount, because he has the ability to post treasury bills, stocks, bonds, any type of security representing an interest.

He can pledge for his freedom and leave that asset in tact and earn interest while we are imposing a cost here, we are allowing this person to continue making money on his investment.

And here he sees about it, the person who was released are allowed to see the benefit, the 10% person receives the benefit.

Well, why should a system insist that one segment of those who are released on bond support that entire system and when there is not even a need for it because the same bond forfeitures that existed prior to the Act exist today.

This is actually a fiscal policy of increasing the revenues and that is all it is.

Chief Justice Warren E. Burger: Thank you Mr. O’Toole.

Thank you.

The case is submitted.

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Boddie v. Connecticut - Oral Reargument

Thu, 23 Aug 2012 18:12:10 +0000

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Boddie v. Connecticut

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27_19701117-reargument

Featured:

Boddie v. Connecticut - Oral Argument

Thu, 23 Aug 2012 18:12:09 +0000

Case:

Boddie v. Connecticut

Media File:

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27_19691208-argument

Transcript:

Argument of Arthur Lafrance

Chief Justice Warren E. Burger: Number 265, Boddie against Connecticut.

Mr. LaFrance we may proceed whenever you're ready.

Mr. Arthur Lafrance: Thank you Mr. Chief Justice, and may it please the Court.

Mr. Padnos closed by saying that when he sought was the opportunity to get into court.

I might begin by saying that that is precisely what the appellant seek in this case.

The appellants initiated this proceeding by bringing a civil rights action in the United States District Court for the District of Connecticut.

They allege in their complaint that they wished, intended to sue their husbands for divorce in the Connecticut Superior Courts, but that is welfare recipients they could not afford to pay the court cost of approximately $60.00 or more.

As a consequence, they had set their divorce papers to the Superior Court for New Haven County, with applications asking that court to waive the filing fees and to arrange service of process.

These papers where all set back by the clerk of that court.

Upon received of these papers, appellants then asked Superior Court Judge Longo and after speaking with him, the State Supreme Court Administrator Justice Carter to reverse the position which had been taken by the Superior Court Clerk Edward Orimits.

They sustained that position and as a consequence, appellants were effectively bard from access to the courts of the State of Connecticut.

They further alleged in their complaint in the District Court that this denied them constitutional rights involving Due Process and equal protection.

The appellee is moved to dismiss their motion with sustain by a -- or granted by a three-judge-panel and this direct appeal was taken to this Court.

The question which is thus presented is has Connecticut by erecting economic barriers to its court denied these appellants the rights to Due Process and equal protection of laws guaranteed to them by the Fourteenth Amendment of the United States Constitution.

If I may turn first to our Due Process contention, we founded upon the right to petition for redress of grievances, a right which is expressed in the First Amendment to the United States Constitution and which is incorporated into the Fourteenth.

The decisions of this Court in NAACP versus Button, United Mine Workers versus The Brotherhood of Railway Engineers and the United Mine Workers -- I'm sorry, the United Mine Workers versus Illinois Bar Association and the Brotherhood of Railway Trainman versus Virginia, all of these cases are squarely precedent for this.

The appellees may attempt to distinguish them on the ground that the litigation contemplated in Button was of a political nature whereas the litigation appellants contemplate is of a personal nature, but that distinction was rejected in the Mine Worker's case; a second distinction maybe that these cases involved the right of assembly rather than the right to petition for redress of grievances, but we submit that the language of these three cases discusses these two rights independently and accords to them equal status.

The right of assembly and the right to petition for redress of grievances indeed in these cases, their would hardly have been any point to assembly at all if it had not been to unable individuals as here to bring suits on their on behalf.

This is a fundamental right.

This Court has said that the right sue and defend in the courts is the alternative of force in an organize society.

It is the right conservative of all other rights and lies at the foundations of orderly Government.

Turning to our equal protection contention, it is clear that the equal protection of the laws can be denied by economic discrimination as surely as racial discrimination.

This Court recognized that in Edwards versus California in 1941 and as reaffirmed it in many decisions sense most recently in McDonald versus Board of Elections.

Perhaps the most significant case here is Griffin versus Illinois where this Court held that appellant remedies could not be denied to a person convicted of crime simply because of its inability to purchase a transcript for appeal.

Appellees brief at great length has attempted to distinguish Griffin from this case.

Appellees have set first that Griffin is a criminal case and that this is a civil case, the present proceeding.

And point of fact, however, this is a distinction which is not recognized by the constitution appears no where in the Equal Protection Clause and was not expressed by this Court in the decision in Griffin versus Illinois.

That decision dealt not with criminal procedure, but with court procedure, and it is court procedure which these appellants seek to pursue.

A second distinction offered in their brief by appellees is that in Griffin, liberty was involved whereas these appellants are at large to go about as they choose.

But in point of fact, the liberty of these appellants is substantially curd by their inability to obtain divorces in the courts of Connecticut and this Court has recognized that liberty consist of more than simply freedom from physical restraint.

A final point which appellees have made in their brief is that Griffin should not govern here because in Griffin, the state was the participating adversary.

It was the state which had put Mr. Griffin in custody whereas the divorce actions contemplated by appellants are private matters between husband and wife.

This however is an elusory distinction.

It is the state which has bard these appellants from its courts.

It is the state which has said to these appellants that they may not settle their marital affairs out of the court.

Thus on the one hand, the state has required these appellants to go in the court and at the same time has told them that they may not do so.

We submit then that the state is fully as much as an adversary in this proceeding at it was in Griffin versus Illinois.

Justice Potter Stewart: Is that the basic difference do you suppose between your case and other civil litigation generally that parties are always afraid to compromise or settle?

Are their quarrels within the form of litigation or not but the divorce matter that is a civil case which can only be decided by a judicial decree and cannot be compromised is that right?

Mr. Arthur Lafrance: That is certainly one distinction Your Honor.

Justice Potter Stewart: -- compromised here, something short of divorce?

Mr. Arthur Lafrance: Pardon?

Justice Potter Stewart: I supposed there could be a settlement here by something short of divorce just this -- like there can be and if somebody suing you for $100,000.00, you settled for short of that?

Mr. Arthur Lafrance: I don't know if any legal proceeding in Connecticut which would extend to these appellants half the divorce for one third or one fourths.

Justice Potter Stewart: Well it could agree to live apart?

Justice Potter Stewart: They could agree to live apart if they were to agree to that which in point a fact most of them have done.

What would happen is that they would be locked into marriages which were meaningless, which was barren.

They would also be cut off from some rather important rights, the right to remarried, the right to appropriate, the right to form new families.

And this Court is said that those rights are rights of considerably significant.

I might also note as we have in our brief that denial of access to divorce for the poor opposes peculiar problems which may not be post for other segments of society because denial of that access aggravates the economic circumstances under which the poor live.

It may also further weakened the family structure patterns which sociologist indicate are prevalent among the poor.

Whether or not that peculiar problem for the poor are cognoscible by this Court, it is at least clear that by Connecticut's law, anybody who is cutoff from divorce is cutoff from remarriage and is cutoff from appropriation with anyone other than her legal spouse.

What we are submitting is that since and in fact these marriages have seized to exist in legal contemplation; that fact ought to be recognized.

Now --

Justice Byron R. White: Mr. LaFrance, I gathered the sums involved here are minimum about $45.00 and a maximum about $200.00.Is that right?

Mr. Arthur Lafrance: The sums are accurate.

I would not characterize them as minimum -- minimal nor with my clients.

Justice Byron R. White: -- the facts targeting.

Mr. Arthur Lafrance: Yes.

Justice William J. Brennan: And that $45.00 to a $100.00, that's the amount of money that needs to be put up in order to --

Mr. Arthur Lafrance: A routine divorce of case would cost approximately $60.00 Your Honor.

Justice Byron R. White: $60.00?

Mr. Arthur Lafrance: Yes.

Justice Byron R. White: If you prevail of those cases, how do we contain a decision to just divorce actions?

Mr. Arthur Lafrance: I suppose this --

Justice Byron R. White: You would be involved in take a negligence actions -- any kind of civil actions, contract actions?

Mr. Arthur Lafrance: Let me first say that this Court could draw a distinction between this type of case and a case which involves purely personal private issues, a negligence, suit or contract suit are examples of litigation which does not involved with state in the same fashion that a criminal prosecution does or divorce prosecution -- pardon me, a divorce suit does.

Justice William J. Brennan: How about there has to be proceeding.

Mr. Arthur Lafrance: In Connecticut, a baster the proceeding involves the state rather extensively.

I don't know about other states.

I would not urge this distinction upon the court.

The court of course is free to adapt it.

What I would urge upon the court is simply this that anytime the states, where it be the State of Connecticut or any other state creates a state remedy through its courts.

I submit that that the remedy must be available to the poor and the wealthy alike whether it involved negligence, divorce, bastardy or whatever.

I would note that are some limitations on the reach of reasoning.

The appellees have noted that this reasoning would carry over to dog licenses, road tolls and whatever.

I contend that it is not.

The issue here is whether a constitutional right, the access to the courts maybe deny by economic barriers.

There is no constitutional right to a dog license or I supposed --

Chief Justice Warren E. Burger: On equal protection --

Mr. Arthur Lafrance: To passage through a road toll station.

Justice Byron R. White: That's a right to travel, isn't it?

Mr. Arthur Lafrance: If the right to travel were totally bard by a state by toll stations, then I would submit that the person who he is thus bard has a constitutional claim.

In Thompson versus Shapiro would be as good as citation for that as any, so with Edwards versus California.

But I did not understand that was the argument being made by the appellees.

If there is no constitutional right involved as they clearly is here, then perhaps this Court might distinguish future litigation from present litigation.

Justice William O. Douglas: Where this plaintiff said, the appellants have lawyers?

Mr. Arthur Lafrance: Do they have a lawyer?

Justice William O. Douglas: Do they have lawyers in the divorce action?

Mr. Arthur Lafrance: Yes, they do.

Chief Justice Warren E. Burger: Must they have them?

Mr. Arthur Lafrance: Oh I'm sorry, no.

I do not believe that they must.

Justice William O. Douglas: I'm just wondering extent to which this goal, if you require them to get in without payment of fees, they couldn't get very far without benefits of legal advice.

Is this lead to the appointment of lawyers in civil cases?

Mr. Arthur Lafrance: I submit that it does not.

The right to access to the courts is clearly provided for in the constitution by express provision.

There is no similar provision for appointment of counsel in civil cases or for appointment of expert assistance.

So in constitutional contemplation, there is a distinction between access to the courts and appointment of counsel.

In point of fact also there is a distinction.

Once in court, a litigate has an opportunity to obtain justice given a reasonably compassionate judge and a reasonably good case and affirm amount of intelligence.

We have those in reasonable abundance in the State of Connecticut, but if bard from court, if her papers are simply set back by the clerk of court without any consideration, there's no opportunity to obtain justice at all.

Justice Thurgood Marshall: What about appeal?

Mr. Arthur Lafrance: I'm sorry, I don't understand the question.

Justice Thurgood Marshall: Well assuming that very capable in hard rending courts here have been Connecticut go wrong and the petition I think she was desirable and above divorce and didn't get it, what is she have to pay for her appeal?

Mr. Arthur Lafrance: I would submit that she does not have to pay the court cost incident to an appeal.

Justice Thurgood Marshall: Or printing of briefs or records or any cost?

Mr. Arthur Lafrance: She might have to retain her own counsel if she desired counsel.

Chief Justice Warren E. Burger: If she can't afforded this, she can't --

Mr. Arthur Lafrance: If she cannot afford it -- the -- I supposed one other factor which is worth noting and that is that the prevalence of legal services programs and the availability of legal services attorneys take some of the urgency out of the concern for availability of counsel.

It does not relieve the urgency which is behind the issues raised by appellants in this case.

Chief Justice Warren E. Burger: Is that a factor which could be taken into if this precasten constitutional terms in fact if there is a neighborhood legal services and legal aid?

Either, there is a constitutional right to counsel or there isn't?

Mr. Arthur Lafrance: That is true Your Honor.

Justice William O. Douglas: I was thinking in terms of the equal protection clause if there was a constitution is a very specific as respects equal protection like in Griffin and Illinois to give the -- for the record free?

There's no reference to the right of appeal and the constitution.

Mr. Arthur Lafrance: Well that is correct Your Honor.

In terms of whether the absence of a reference to appeal by the constitution in Griffin case in terms of whether that therefore would require compelling the appointment of counsel in civil cases, I would only respond that the appointment of counsel is a matter which in criminal cases specifically provided for and the absence of reference to civil cases could justify this Court and inferring that the drafters of the constitution did not contemplate appointing counsel in civil cases.

Now, I have somewhat handicap in arguing a case which I'm not bringing, but I do submit that if that cases brought for the appointment of counsel in a civil case, this Court might well be justified in distinguishing this case from the arguments which would be submitted at a later time.

Justice William O. Douglas: Or it might say that the counsel should be appointed or indigence in all civil cases?

Mr. Arthur Lafrance: You might well say that or you might say only an important civil cases, defining that in various ways.

The problem here is not much different from the problem which this Court is cope with for exampling Gideon versus Wainwrigth in determining of whether counsel must be appointed only Felony cases or in misdemeanor cases determining the limit of the appointment requirements of the constitution.

Chief Justice Warren E. Burger: I suppose since -- if we accepted your arguments that the right to a divorce of this absolute nature, it would follow that the right to go into the married state would be at least comfortable statute, would it not?

Mr. Arthur Lafrance: Yes.

Chief Justice Warren E. Burger: What about two people who presented themselves for a $10.00 marriage license, said they didn't have any money but they wanted the license?

Mr. Arthur Lafrance: On this Court's rulings in Loving versus Virginia, Skinner versus Oklahoma, I would say that the state would be required to raise -- I'm sorry waive that filling fee in application for marriage if the applicants establish they could not pay fee and if the state could not show a legitimate basis for imposing the fee.

Now, I say that with the important emphasis that what is involved is a fundamental right in marriage according to this Court's decisions, and I would therefore distinguish this from a dog license --

Justice Byron R. White: Or a hunting license?

Mr. Arthur Lafrance: Or perhaps a hunting license.

Chief Justice Warren E. Burger: Would you think --

Justice Byron R. White: How about a dog house license?

Chief Justice Warren E. Burger: With an automobile license, the question then becomes or rather difficult one of equal protection of the laws.

Presumably, there is no constitution part --

Justice Harry A. Blackmun: I take it you also have the right travel involvement?

Mr. Arthur Lafrance: Yes and --

Justice Byron R. White: And the work?

Mr. Arthur Lafrance: The right to work would then raise the economic considerations which might be to a conclusion that equal protection have been denied the right to travel in itself would be a constitutional consideration and protected by decisions of this Court.

Justice Byron R. White: What provision the constitution do you claim affords the right to have access to the courts?

Mr. Arthur Lafrance: The First Amendment as incorporated into the Fourteenth, the First Amendment providing for a right of assembly and a right to petition the courts for redress the Fourteenth.

Justice Byron R. White: Redress of grievances from about whom, about official action or about private action?

Mr. Arthur Lafrance: As I read this Court's opinions in the Mine Worker's case and in the Brotherhood of Railway Trainman case, the right to petition for redress of grievances involves both private and official grievances.

Justice Byron R. White: But note the Button case?

Mr. Arthur Lafrance: The Button case was primarily focused upon official grievances in the sense that the group there was involved with advancing the political social interest of a minority group which was being impressed -- discriminating against.

Justice William J. Brennan: How about most been agreed by address -- was addressed to govern officials, who practice the policy of segregation that this was addressed to public officials, would it?

Mr. Arthur Lafrance: In Button; that is true but in the Mine Worker's case and the Brotherhood of Railway Trainman, the litigation contemplated was for private gain, for individual benefit.

Justice Byron R. White: You say that the state is constitutional required provide a form or litigating any claim of one private person against another.

It may not say that that like our courts are courts of limited of jurisdiction and to have jurisdiction decides some kind of -- to hear some kind of claims but not others.

There are just some kind things that at lead to the private sector workout the best they can.

Mr. Arthur Lafrance: What I'm saying is that, under our first Due Process argument, I'm saying that the states must afford the opportunity to come in to court and raised a claim.

The state may not provide redress for the claim, but it must at least provide an opportunity to petition for redress.

Under our equal protection argument, I am saying that where the state provides a cause of action or a remedy, it must provide equally.

Now it happens that the State of Connecticut provides for divorce.

Given that, it seems to me that it cannot say to the appellants that they may not come into court and ask for divorce, norm that it may have say to appellants that divorce is available to everybody excepting the poor.

Justice Byron R. White: Well, let's just say the equal protection argument.

Mr. Arthur Lafrance: The two arguments are quite close.

The --

Justice Byron R. White: That's not saying that this is just a burden on a constitutional right unless you can say that the constitutional right I suppose.

Mr. Arthur Lafrance: The significance of the right to petition for redress of grievances in this case comes about because of this Court's decisions of such cases as Shapiro versus Thompson in which the court had said that in order to justify racial discrimination or economic discrimination as legitimate legislative policy, a state must show that there is a compelling necessity for that discrimination.

It may not show simply that there is a rational basis for it, there must a compelling necessity.

We of course submit in our brief that there is no such necessity.

Justice Byron R. White: Well, I understand, but that's preminence on their being a constitutional right to be in burden and you say the constitutional right here is a right to petition for redress of grievances by filling a suit in the court?

Mr. Arthur Lafrance: Yes.

Justice Byron R. White: And concededly not because anybody is agreed to what the state's done to them, but because of their dissatisfaction was to conduct of some other private person?

Mr. Arthur Lafrance: I do not conceive that.

I maintain that the state has taken two entirely different types of action against these appellants: First, the procedural action of barding them from its court by imposing economic barriers; Secondly, the anacidence substantive action of requiring that the appellants go into court in order to settle their marital status.

Justice Byron R. White: Well that's -- that might make sense if they were bringing a suit to a -- how did the suits start out?

The suit started out by our sending divorce papers.

Mr. Arthur Lafrance: Yes, but you didn't -- but didn't start a suit attacking the statutes which might then be a petition for redress of grievances revolving on you from the state?

Justice Byron R. White: I suppose that what we did is tend amount to precisely that because attach to our divorce papers, we asked the state of Connecticut to waive the filling fees and arrange service of process for these papers.

Now, prior to our doing that, there was no ruling in the State of Connecticut which said that the courts lack the power to do so.

Once their ruling became apparent, we then raised the issue by raising the constitutionality of the clerk's action with the Superior Court Judge, Ms.Judge Longo and the Supreme Court Administrator, Justice Carter.

So I suppose that we've done precisely what you have suggested.

Justice Thurgood Marshall: Mr. LaFrance they have service of publication?

Mr. Arthur Lafrance: At Connecticut law provides for that, yes.

Justice Thurgood Marshall: Well under your argument, who paid for that, the state?

Mr. Arthur Lafrance: Yes.

Chief Justice Warren E. Burger: Or waived the publication?

Mr. Arthur Lafrance: Or waived the publication if that were consistent with Due Process requirements or provide for alternative means of service or notice.

Chief Justice Warren E. Burger: What about a state that allows annulments as many states do with your claims with seem to in compass that, the right to dissolve a marriage by annulment which would be a very important right to some people, would it not?

Mr. Arthur Lafrance: Yes, I believe the answer is yes.

Chief Justice Warren E. Burger: That's a -- it's a civil action, is it not?

Mr. Arthur Lafrance: Yes.

Chief Justice Warren E. Burger: I suppose --

Mr. Arthur Lafrance: Quite frankly, I'm not --

Chief Justice Warren E. Burger: Some state I suppose, it's an equitable action, but that would make any difference.

But you -- it can follow that if we agreed you, annulment would --

Mr. Arthur Lafrance: Well, I'm simply not familiar with annulment procedure.

Chief Justice Warren E. Burger: Well, it's termination of the marriage of declaration that a marriage very existed where it is legally thought to exist.

Mr. Arthur Lafrance: Without -- I would assume that my arguments would extend to that as well as to divorce.

With the court's permission, I'd like to reserve two or three minutes for rebuttal if it --

Chief Justice Warren E. Burger: Very well Mr. LaFrance.

Mr. Arthur Lafrance: If you're appropriate, thank you.

Chief Justice Warren E. Burger: Mr. Cannon.

Argument of Raymond J. Cannon

Mr. Raymond J. Cannon: Mr. Chief Justice and may it please the court.

The statute that's under attack in this case, that portion of it, 52-259 excuse me, they shall be paid to the clerks of the Supreme Court or the Superior Court for which civil cost $45.00.

That is the entry fee.

Now the problem in this case is not particularly the court cost.

It's the marrying which cases started at least in Connecticut that client or person goes usually to a lawyer if he has or a person has a case, the writ is drawn, the lawyer gives it to the sheriff or brought a proper officer for service.

And the service officer makes a fee, makes a service and returns the writ to court.

Now, the fee payable to the sheriff is paid by the client or the lawyer.

The state does not enter into that angle of the case at all.

The case is returned to court after service.

Now if they are not arrest in defendants, the sheriff has to go over the court or with the representations affidavit made the lawyer showing the type of service which would most likely reach the attention of the defendant.

Very often, that calls for publication and sometimes a series of publications, two or more.

So, it was on their basis of these features and many other features that we argued in the lower court that this is matter of legislative action rather than judicial determination.

Every state in the union so far as I know including the support of the Federal Courts have entry fees and court fees.

They're waived in the Federal Court by a form of pauper statute.

That is true to in some other states.

They have form of pauper statutes.

But there are so many factors to be taken into consideration for form of pauper statute that it would seem to me a pauper domain for the legislature.

And then that regard, we mentioned in the brief that in Connecticut right now as of July 1, they've started through the Welfare department of pilot program.

Including in it is a legal services and appropriations for it and last week before coming down, we checked in the progress of this pilot program which is funded by the Welfare department.

It's mentioned in our brief and there' a schedule attached there to showing the appropriations available.

Now that case among other actions they've had through the legal assistance program in Middlesex in County, it's involved and I think three counties, smaller counties to give it a test program, to promote and advocate legislation in the next turn around.

They have six divorces' cases printing since July 1.

They are making or negotiating a contract with the Middlesex Bar Association to conduct this because it was not only divorce case and it's not only welfare cases that probably need access to courts, but there are many, many indigence probably who can't afford litigations.

Some of there rights are waived.

The OEO or legal assistance in New Haven has paid for entry fees.

They do have appropriations entry fees.

They could have well brought this case.

It seems to me in one situation bringing the a declaratory judgment in the Connecticut Court give the Connecticut Courts of proper way to pass on this issue in a judicial fashion.

The Federal Court has held this and another cases that the clerk and the judge who says you can't get in to court unless you pay the entry fee, I have no power to waive the statute, but I can't -- the judicial capacity, we're acting these administrators and the Federal Court says that exactly that that they're acting in administrative capacity when they say they have no power to waive the court.

Whether the Connecticut Courts would have done anything on that, I do not know.

No one else, they do and I don't have the opportunity to pass on it as a group decided the Supreme Court.

The only issues here are the -- if there is any constitutional problem in this case, it's whether or not the entry fees statute provides equal protection.

It seems necessary to have these entry fee statutes, court cost, if they're reasonable in nature and do not impose an undo burden and no unfair discrimination, no invidious discrimination.

They are arbitrary or harsh, then, the fall has been allowed.

I do not know if this is a case of first impression.

There was no other similar situation and this Court has not expanded the Griffin doctrine to situations such as this.

The civil suit which doesn't have in and over itself for a no state participation whatsoever, it's a dispute between two individuals and this case here, if the judgment was rendered on this case, this is for welfare recipients.

Hundreds of other people in Connecticut that are indigent can't afford it, but there not welfare recipients.

The judgment of this case could well revert and reverse discrimination.

That's why we say it's a matter for the legislature.

At Due Process, the parties, the plaintiffs made the same claim in the Federal Court about the Due Process, but Due Process -- this three-judge court didn't even consider the issue of Due Process.

I think Due Process is pertinent cases of this type.

They have the right to go to get into court.

The only thing is the condition of getting in is him by a reasonably entry fee as these entry fees prevails throughout the United States or court cost prevailed throughout the United States.

And appeals even the federal statute of 1915, incidentally provides only that in a civil case brought in form paupers, the court may request an attorney to represent any such person unable to employ counsel.

There's plenty of cases on that and they have been interpreted to mean only that the court may request.

They cannot order representation by counsel such as they do in all civil cases.

We of course in Connecticut have numerous situations which by statute or specific circumstances allow people to get in the court without payment of fees.

Where workman's compensation, the uniform support, that's been waive, but on the statute has been waive as a matter of policy with most dates and there's others that for the moment, I just skip my mind.

Justice Potter Stewart: General Cannon, I notice in the appendix, appendix A to the brief of the National Legal Aid and Defender Association amicus brief that Connecticut as listed here is having the court's there of having power to waive these fees, is that --

Mr. Raymond J. Cannon: That's in the Uniform Reciprocals Enforcement Support Act and yes Your Honor and they waived them as the matter of policy in all cases that uniform Reciprocals Support Act provides that state may waive the cost.

That is where they collect for a wife in Connecticut, a husband some other state or vice versa.

A wife can enforce support for herself and the children by having proceedings in one state orders in the other state.

Justice Potter Stewart: I see.

So, it's limited only to the kind of an action?

Mr. Raymond J. Cannon: That's correct.

Justice Potter Stewart: An action for maintenance and support?

Mr. Raymond J. Cannon: That's correct Your Honor.

Justice Potter Stewart: I see.

Mr. Raymond J. Cannon: They have a notation there as I recall it $60.00.

Justice Potter Stewart: I see that under UERESA, I'd now see it.

Mr. Raymond J. Cannon: But there's no $60.00 fee in any court cost in Connecticut.

It would be combination of the -- if it's $60.00, the combination of $45.00 or entry fee and the $15.00 fee which the client owes to share but not the court do not involved in this situation at all.

Before it closing, either --

Justice Hugo L. Black: $15.00 fee for service?

Mr. Raymond J. Cannon: I beg your pardon sir.

Justice Hugo L. Black: $15.00 fee for what, service?

Mr. Raymond J. Cannon: Service or process against the defendant citing them in.

Served the living with him or as the usual place for both, must be the resident of the state.

Justice Hugo L. Black: What are the other cost?

Mr. Raymond J. Cannon: Well in divorce, it probably not other, but there is witness fees, investigation ordinary cases, investigation fees and the counts of course.

Justice Hugo L. Black: Investigation fees?

Mr. Raymond J. Cannon: Not in divorce, I mean --

Justice Hugo L. Black: Other things.

Mr. Raymond J. Cannon: In divorce fees -- divorce cases, I would say there's probably rate cost, the sheriff, the witnesses and publication.

Justice Hugo L. Black: Suppose the defendant comes in, suppose the plaintiff comes in and files a petition for divorce and the other spouse comes in and agrees to accept service, is there any cost there?

Mr. Raymond J. Cannon: I've never heard of that situation Your Honor.

Justice Hugo L. Black: Of accepting service?

Mr. Raymond J. Cannon: Well, the service has to do.

There some and then under the Connecticut statute by a written summons to appear in court.

Now, for word of proper form and were signed by an attorney or ordered sign by a clerk or judge rather, then they could accept service.

Justice Hugo L. Black: They could accept.

Can they just come into the court and file an answer for that in the summons of service summon?

Mr. Raymond J. Cannon: Without actually making the summons or making actual service of the summons, yes.

But there's another statute would says in every civil action shall be in a special form.

Justice Hugo L. Black: And they consent this?

Mr. Raymond J. Cannon: With the writ of summons and complaint.

Justice Hugo L. Black: And they consent for the case to be tried right way.

I'm talking about some practices that I know exist over the country.

Mr. Raymond J. Cannon: No, there's a 90-day waiting period in Connecticut.

Justice Hugo L. Black: They have to wait 90 days?

Mr. Raymond J. Cannon: After waiting 90 days at any event after they return day before it be brought to trial.

Justice Hugo L. Black: And they have to take evidence of course?

Mr. Raymond J. Cannon: They have to take evidence and it's usually two or three witnesses requires.

Justice Hugo L. Black: And why?

Mr. Raymond J. Cannon: It's usually two or three supporting witnesses required.

Justice John M. Harlan: Mr. Cannon, how would you describe the state interest that's involved in closing the door of its court circumstances of this kind?

What do you think the real estate interest is?

Mr. Raymond J. Cannon: Well I think this Your Honor, I think the fees are reasonable and then the only way it can be done it seems to me is by discretionary whereby legislature.

Justice John M. Harlan: What interest this, is the state serving consuming for the moment that there is some kind of a screening process to prevent abusive resorts of to the courts.

What others in the statement personal?

Mr. Raymond J. Cannon: I'm not sure --

Justice John M. Harlan: Not merely is the legislature because the better body to do it, but what is the -- to make the change and what is the state interest?

Mr. Raymond J. Cannon: The state interest is only -- I presumed to prevent frivolous litigation.

Justice John M. Harlan: Well, I supposed --

Mr. Raymond J. Cannon: Tend to prevent it rather.

Justice John M. Harlan: Supposing you protected it self by setting up procedures screening process of some kind that you said no or we won't waive these fees frivolous, untenable litigation, and what interest is there in the state requires across the board application?

Mr. Raymond J. Cannon: I don't think that state has legitimate interest to waive all court fees, a license within the realm of the legislature to do it, they could have do it of course, but they have to provide tax measure elsewhere, thus the entry fee do, can or do help to support the judiciary system.

As far as disputes between the parties are concerned in a divorce case, the state is a more on standing under the sidelines.

They are not a party to the action.

They don't represent, the only place that possible in their state would get interested in a divorce case as if they were minor children on welfare or in hospital or mentally retarded institution or somewhat in that sort, so welfare standpoint.

Chief Justice Warren E. Burger: Mr. Cannon, if the screening procedure were set out which required people who could not pay the fee to go through the screening in order to get a waiver of the filing fees and other costs, would that not be a denial of equal protection because rich people would not have to go through that screening process?

Mr. Raymond J. Cannon: Well I don't know how they could or have a screening process work in any event.

If I intimated that, I didn't mean it, I wouldn't think even from part from the constitutional questions which I would tend to agree with would also seem to be very commerce and then workable.

Chief Justice Warren E. Burger: But I'm not sure I have the position on it.

I'm just thinking the kind of arguments that we likely be tendered to this Court to make the poor man go through a process which rich man don't have to go through?

Mr. Raymond J. Cannon: Well, I think there are to be a reasonably form of pauper statute in every state that myself, but I don't know how it's going of the done.

There are so many factors.

There are so many situations that will come up.

I'm sure that this program, it's now being well developed some good.

The funds appropriated.

There's a total $119,000.00.

I think that was more than that though I believe.

Justice Hugo L. Black: What was that?

Mr. Raymond J. Cannon: The pilot -- there's a pilot program justice.

It is being worked out through the welfare department in Hartford, in Connecticut.

It's a special legal services project; a $119,000.00 is being tried out in two smaller counties up there and the director --

Justice Potter Stewart: Is that a $119,000.00 or people?

Mr. Raymond J. Cannon: Dollars.

And they provide legal services and their purpose is as said by the acting commission in welfare is to enable us to make recommendations for program or policy changes that our statewide programs

We are getting this form of pauper statutes.

Somebody's got to pay the sheriff for publication and newspaper and things like that.

Now, what -- there's another problem is to what appropriated state fund is going to be charge to.

We have statute of course that no state officer can spend the moneys that are not appropriated and other statute that he can only spend the moneys for the purposes for which it was appropriated.

Otherwise, this personal liability on the officer had probably other expose to other chargers.

It's sort of a complex procedure and seemed to me that it's a matter really for the -- rather really for the legislature and I think that the constitutional programs for questions raised either are not too momentous in view of the fact that access is a Due Process isn't a picture because access the court is not deny, it's him then or condition by a reasonable charge which is prevails, so far as I know that every state in the union and then the Federal Government, the Federal Courts.

Justice Hugo L. Black: Suppose the state should decide to abolish its divorce law, do you think Federal Constitution would permit it?

Mr. Raymond J. Cannon: The old cases have said so Your Honor.

Justice Hugo L. Black: What?

Have said what?

Mr. Raymond J. Cannon: The old cases which seemed to indicated that where is not likely they've been large and made it into more rarely available because --

Justice Hugo L. Black: Most provision of the Federal Constitution was violated.

Mr. Raymond J. Cannon: Would bar divorce?

Justice Hugo L. Black: If a state should bard divorce?

Mr. Raymond J. Cannon: I think it's purely state matter.

Justice Hugo L. Black: It would what?

Mr. Raymond J. Cannon: I would think Justice it's purely state matter the court may bard divorces without being in contravention of the --

Justice Hugo L. Black: Well then, you wouldn't think it violated the Federal Constitution for state to abolish divorce in town.

Mr. Raymond J. Cannon: I would not think so that bringing every state in the union has different grounds and different conditions prevailing in divorce cases.

As far as Connecticut is concerned of the end of three year residence, but now this year, they reduced it to one year to show that their --

Justice Hugo L. Black: Much up too much as conscience, would it not?

Mr. Raymond J. Cannon: Well, that is true.

Justice Hugo L. Black: That would be true among legal findings.

Mr. Raymond J. Cannon: Thank you Your Honor.

Chief Justice Warren E. Burger: Mr. LaFrance, do you have anything further?

You have about two and a half or three minutes.

Rebuttal of Arthur Lafrance

Mr. Arthur Lafrance: Let me pick up Mr. Chief Justice three points right quickly.

The first is that Mr. Cannon had suggested that the appellant should have bought a declaratory judgment proceeding in Connecticut so that the Connecticut Supreme Court would have an opportunity to rule property on the issues imposed in this case.

All I can say is that we submitted an application to Superior Court for New Haven County and then pursued it to the administrator of the court's of State of Connecticut who is a Supreme Court Justice.

Not only where we not given an opportunity to present this issue and argue it, our papers were simply sent back.

Now for failure to pay the filing fees, if we have brought a declaratory judgment proceeding, the same filing fees would have been required and our papers presumably there would have been set back.

We did make the attempt --

Justice Byron R. White: 4500?

Mr. Arthur Lafrance: Yes.

Justice Byron R. White: Or the declaratory judgment?

Mr. Arthur Lafrance: Yes, the $45.00 -- I would have to check the statutes again Your Honor, but there is certainly an entry fee attached to all proceedings brought the Superior Court.

Justice Byron R. White: 4918 close $45.00?

Mr. Arthur Lafrance: I believe so.

There is a flat $45.00 entry fee required for filling proceedings.

There are some exceptions as Mr. Cannon noted, but the declaratory judgment proceeding, I do not believe would be one of them.

Justice Potter Stewart: That is nothing at all to do with any further or other expenses across that there might be for service and so on.

As I read it on the bottom of page 3 of your brief, it just $45.00 but what it says each civil cost?

Mr. Arthur Lafrance: Yes.

Justice Potter Stewart: However, that's defined else where in your statutes, I don't know, but that's --

Mr. Arthur Lafrance: Service with me in addition to the $45.00 --

Justice Potter Stewart: -- in the civil case, you have to pay for $45.00 quite apart for any additional expenses?

Mr. Arthur Lafrance: Yes, that is correct.

The second point that I would like to pick up quickly is simply that there is no justification in Connecticut for imposing this requirement of filing fees.

It does not discourage frivolous litigation.

The wealthy can bring that litigation if they choose to do so.

What is achieved by these filing requirements is that the poor may not bring frivolous litigation.

We submit that this letter is a denial of equal protection of the laws.

Chief Justice Warren E. Burger: Because that assumed that there is a constitutional right to bring frivolous litigation as you have defined it?

Mr. Arthur Lafrance: No, it does not.

It does assumed --

Chief Justice Warren E. Burger: Sounds like the predicate for your argument?

Mr. Arthur Lafrance: It does ssumed that there's a constitutional right to bring on behalf of the poor the same of kind of litigation which the wealthy can bring.

Chief Justice Warren E. Burger: But you defined it in your hypothesis as frivolous.

You say because a rich man can bring frivolous litigation, a poor man must be guaranteed by the constitution like a merit?

Mr. Arthur Lafrance: Perhaps, I should -- well, I will argue that but I would also contend that the fee requirement in Connecticut has the further affect of discouraging meritorious litigation by the court.

In other words, it bards all litigation by the poor whether frivolous or not.

And that is a consequence which we feel that constitutional --

Justice Hugo L. Black: Your argument -- it would require as I understood it that the state fee a lawyer was a divorce -- question among the divorce?

Mr. Arthur Lafrance: I'm sorry, am I contending that?

Justice Hugo L. Black: Are you not?

Are you arguing that because of rich man can hire lawyer to get a divorce?

The state must supply lawyer for a poor women or poor men wants to get a divorce?

Mr. Arthur Lafrance: No, I'm not.

Justice Hugo L. Black: Well, how could you keep from doing it if you made them pay the call?

Mr. Arthur Lafrance: Because the State of Connecticut does not require a person to come in to court with a lawyer.

It requires a person to come in to court with the money to pay filing fees.

Justice Hugo L. Black: But the case on which you're relaying was a lawyer, wouldn't it?

Mr. Arthur Lafrance: The case on which I --

Justice Hugo L. Black: Within was not a lawyer?

Mr. Arthur Lafrance: In Griffin issue --

Justice Hugo L. Black: If it will be just Illinois?

Mr. Arthur Lafrance: It was a transcript on appeal Your Honor.

Justice Hugo L. Black: But you wouldn't say that they would be required to supply lawyer.

How could a poor person try the case without lawyer.

Mr. Arthur Lafrance: All you would have to do, I suppose would -- in the instance of divorce is go to married in Connecticut, sit and watch the informal proceedings on which divorces are granted, present his two witnesses which usually consisted of a mother and a neighbor.

Justice Hugo L. Black: Suppose they litigated and the other fellow had a good lawyer.

Mr. Arthur Lafrance: In that case the State of Connecticut has provision for the husband to be assessed for the cost of providing counsel.

I do not contend here that counsel --

Justice Hugo L. Black: Suppose -- one finally gets the divorce and use the full person?

Mr. Arthur Lafrance: Your Honor, I do not contend that a person without counsel is as well equipped as a person with counsel to litigate in court.

All I do contend is that what is required by the constitution is that the person be given an opportunity to get in to court.

The constitution does not require that the state go farther and provide counsel.

Chief Justice Warren E. Burger: I think your time is up Mr. LaFrance.

Thank you for your submission.

Thank you for Mr. Cannon for yours.

The case is submitted.

Featured:

Smith v. Bennett - Oral Argument

Tue, 25 Sep 2012 22:33:35 +0000

Case:

Smith v. Bennett

Media File:

174_19610328-argument

Related Transcript:

174_19610328-argument

Transcript:

Argument of Luther L. Hill Jr.

Chief Justice Earl Warren: Number 174, Neal Merle Smith, Petitioner, versus John E. Bennett, Warden, and number 177, Richard W. Marshall, versus John E. Bennett, Warden.

Mr. Hill.

Mr. Luther L. Hill Jr.: Mr. Chief Justice, may it please the Court.

Petitioners Smith and Marshall are presently incarcerated in the Iowa State Penitentiary at Fort Madison, Iowa.

They both attempted to file petitions for writs of habeas corpus in the District Court in and for Lee County, Iowa.

Neither petition for a writ was allowed by the Court because of the failure to pay a $4 filing fee required by Section 606.15 of the Code of Iowa.

Both petitioners attempted to appeal to the Iowa Supreme Court and the Iowa Supreme Court denied their motions to proceed in forma pauperis, apparently because of the failure to pay the filing fee, a $3 fee this time, required by Section 685.3 of the Iowa Code.

Now to back up for just a minute to get the picture of these two men, Smith was sentenced to 10 years in prison for breaking and entering.

He was paroled to his home in Iowa City, Iowa.

Shortly after he was paroled, he was picked up for an alleged parole violation.

He was returned to the Iowa penitentiary and his sentence was there, he claims, arbitrarily extended.

He filed a petition for a writ of habeas corpus.

He alleged that unconstitutional methods and procedures have been used in his rearrest and he accompanied his petition with an affidavit of poverty and a motion that he'd be allowed to proceed in forma pauperis.

He thereafter received a letter from the clerk of the Lee County, Iowa District Court.

That letter read in full as follows.

“I am returning your motion to allow petition for writ of habeas corpus in forma pauperis.

If you will mail this office $4 to cover the filing fee for the above, it will be presented to the Honorable W.L. Hughes' count, who is one of the judges in that district.”

Smith then attempted to appeal to the Supreme Court of the State of Iowa.

He moved for a leave to proceed in forma pauperis in that Court.

The Supreme Court of Iowa denied the motion.

He then applied for certiorari to this Court, as a matter of fact, he attempted to appeal to this Court.

The appeal was dismissed but paupers were treated as a petition for certiorari.

Certiorari was granted and limited to the question presented in Burns versus Ohio.

Marshall, who was the other petitioner here, pled guilty to the crime of breaking and entering.

He too was sentenced to 10 years in the Fort Madison, Iowa Penitentiary.

He attempted to file a habeas corpus petition, alleging that his plea of guilty was obtained by coercion and do arrest in violation of the Constitution, and that the County Attorney's information was fatal on its face.

He too accompanied his petition with an affidavit of poverty and a motion to be allowed to proceed in forma pauperis.

He alleged that he was wholly without funds to pay the filing fees required.

In Marshall's case, the Court in the Lee County Iowa District Court actually rendered two opinions.

In the first opinion, the Court said that the filing fee had not been paid and therefore the matter was not properly before it.

But even were the filing fee paid, still the petitioner did not allege grounds on which habeas corpus in which a writ of habeas corpus could be allowed.

Subsequently, the petitioner made a motion to settle the record on appeal.

And the Court issued another opinion in which he said, “There is no record to settle on this appeal.

The appeal can only be from the order denying the petitioner's request to file his petition for writ of habeas corpus as a pauper.”

So that the only paper is necessary to be presented on this appeal would be the application to permit the petitioner to file without the payment of the statutory filing fee, since the petition for writ of habeas corpus was never formally considered by this Court.

In the Supreme Court of Iowa, once again, this petitioner attempted to proceed in forma.

His motion to proceed in forma pauperis was denied by the Supreme Court of Iowa.

His petition for certiorari was granted by this Court, limited again to the question decided in Burns versus Ohio.

Thus both of these prisoners remained in the Iowa State Penitentiary at Fort Madison.

Their contentions, their constitutional question raised about the methods and procedures incident to their incarceration, have not been ruled on by the Iowa District Court.

The issue I think can be stated as follows.

Can the State in habeas corpus proceedings close the doors of its courts to those petitioners who, because of their poverty, are unable to pay the filing fees required by the State statutes?

In this case, specifically Iowa, the $4 fee in the District Court and the $3 fee in the Supreme Court.

Or I think the issue can be phrased somewhat differently.

I think we can say can indigents constitutionally be denied in post-conviction remedies in the Iowa's courts.

Now as I understand the State's argument, the State admits that filing fees are unnecessary in habeas corpus proceedings in Iowa, that there is no in forma pauperis proceeding in Iowa in habeas corpus.

Justice Potter Stewart: In stating your question in the second alternative way, you meant -- you mean post conviction remedy other than direct appeal?

Mr. Luther L. Hill Jr.: Yes sir.

That's what I mean, post-conviction remedy after conviction and whatever appeals there are through the criminal process --

Justice Potter Stewart: And either stated appeals deal or an unsuccessful appeal.

Mr. Luther L. Hill Jr.: Yes sir.

The State, as I say, admits that there is no in forma pauperis proceeding in Iowa in habeas corpus.

In defense of the constitutionality of these two statutes, the State argues that habeas corpus is a civil proceeding and that being a civil proceeding that cannot be, the rule of Burns versus Ohio, cannot be extended to it without extending the rule to all civil proceedings.

The State also seems to argue that in this proceeding, it is a defendant and that it would be grossly unfair to require the defendant to pay the cost of plaintiff in a civil action.

State also points out that if the plaintiff is victorious in his search for habeas corpus, the cost will be taxed against the defendant, namely, the State.

The State also argues that habeas corpus, as used by these petitioners, is purely statutory, not constitutional and that this means that the remedy should not be entitled to any high constitutional protection.

Justice William J. Brennan: Does the Iowa Court has any discretion (Inaudible)

Mr. Luther L. Hill Jr.: As I understand it, Your Honor, the Iowa Court does not have any discretion.

The statutes, the State says that the clerk shall collect both in the District Court and in the Supreme Court.

Chief Justice Earl Warren: What other post-conviction remedy does Iowa have, if any?

Mr. Luther L. Hill Jr.: There is, I believe no other post-conviction remedy, Your Honor.

Chief Justice Earl Warren: There isn't.

Justice Potter Stewart: There is provision for in forma pauperis direct appeal without (Inaudible)

Mr. Luther L. Hill Jr.: Yes sir.

Yes sir.

There is no question but what the State of Iowa has a procedure which lives up to the full letter of Burns versus Ohio on criminal appeals.

There are provisions for the furnishing of transcripts of records and there are no filing fees requirements in those cases.

Though we're moving a step beyond that now to the post-conviction, the termination of criminal post appeal.

Thank you.

Justice Felix Frankfurter: Mr. Hill, may I ask you whether the farmers that come to the Court go into the -- whatever you call them, the registry, adversity, or clerk of the Court, the funds that come in as a result of the fee, is the -- is the avowed theory that they possibly go to sustaining the cost of the judicial system?

Mr. Luther L. Hill Jr.: Yes sir.

Justice Felix Frankfurter: They go to a separate court fund or do they go into the general service?

Mr. Luther L. Hill Jr.: I'm not sure of the accounting.

I believe they go into a separate fund, the $4 fee until recently it was $3, the District Court fee.

The State added an additional dollar which helps to pay for a statistician who keeps account of the District Courts to make sure that they're keeping address for their work.

Justice Felix Frankfurter: You happen to know whether all the fees that go into carrying on litigation, does that sustain the cost of the administration.

Mr. Luther L. Hill Jr.: I would imagine not Your Honor, I do not -- I don' know.

Maybe the Attorney General can answer that question as he stands here.

Justice Felix Frankfurter: But the -- the idea is that it should in part contribute --

Mr. Luther L. Hill Jr.: It helps --

Justice Felix Frankfurter: -- to the cost to maintain the judicial administration of the Court, the legal system.

Mr. Luther L. Hill Jr.: Yes Your Honor, it helps to maintain for the -- legal system of the state.

The final argument advanced by the State is that in any case, the federal courts will be open to these petitioners; they have in, because of their poverty, exhausted their state court remedies.

I think before we move into a detail consideration of these arguments of the State, we should first see where this Court seems now to be.

You limited the grant here to the question presented in Burns versus Ohio.

Clearly, Burns versus Ohio was a criminal case.

It was a case of a criminal appeal in Ohio.

Involved there was whether a motion for a leave to appeal in the Supreme Court of Iowa could be filed by a pauper.

He not having the necessary $20 filing fee.

He, the pauper in that case, Burns, received a letter from the clerk of the Supreme Court of Iowa stating that without payment of the filing fee, the motion for leave to appeal would not be considered.

This Court held that the State cannot constitutionally impose financial barriers on the right of indigent criminal defendants to appeal.

In that case, I think the philosophy of this Court was clearly stated in the majority opinion.

There is no rational basis for assuming that indigent's motions for leave to appeal will be less meritorious than those of other defendants.

Indigents must therefore have the same opportunities to invoke the discretion of the Supreme Court of Iowa.

Here the action of the statute -- of the State has completely barred the petitioner from obtaining any review in the Supreme Court of Iowa.

I point out that the attempt to collect the $4 and the $3 in this case has completely barred these indigent prisoners from any Iowa post-conviction procedures.

Burns versus Ohio followed in time and in philosophy the decision of this Court in Griffin versus Illinois.

Griffin versus Illinois again was a criminal appeal.

In that question at issue was the cause of a transcript of a record on appeal.

This Court held that the State must furnish either a transcript or an adequate substitute.

It might be pointed out that in Griffin versus Illinois, the challengers on appeal to the -- by the indigent prisoner where a challenger is base on errors, mere errors committed by the trial judge at the trial.

They were not challengers based on constitutional questions as we have here.

Now it seems clear I think that in criminal cases, this Court, when the issue is presented, has gone very far in saying that rich and poor must be treated alike, that filing fees, cost of transcripts must not be allowed to interpose between the criminal defendant and the prosecution of his appeal.

The distinction between the Griffin versus Illinois and Burns versus Ohio, as the State has correctly pointed out, is that habeas corpus has long been held to be by most courts a civil proceeding.

This Court in the matter of Tom Tong, in 108 U.S. quoted in both briefs said that civil -- that habeas corpus was a civil proceeding.

That case has been followed by other court cases both here and in the Supreme Court of Iowa.

Justice William O. Douglas: Is that a deportation case?

Mr. Luther L. Hill Jr.: I believe that was a criminal case, Your Honor.

However --

Justice Felix Frankfurter: Why -- why did it become relevant to pass any -- express any view as to whether it was -- what the character of it, it was civil or quasi civil or criminal or quasi criminal?

Mr. Luther L. Hill Jr.: Your Honor, I can't answer that right away.

In the one Iowa case or in one of the Iowa case, they issue as a matter of bail.

And in the second Iowa case, the issue was a matter of whether it was possible to tax the cost against the county, the county being the alleged plaintiff for a minor child.

Justice Potter Stewart: Federal system it's -- it becomes quite important from at least one point of view, and that is the time for an appeal, the time in which an appeal made.

I suppose that's true in many states.

There's different time allowed there in criminal cases from that allowed in civil cases.

Mr. Luther L. Hill Jr.: Well there are a number of -- there are a number of various distinctions of course that would flow from the --

Justice Potter Stewart: Number of others but that's technical way in which you be dispositive, through which the issue can become very important.

Mr. Luther L. Hill Jr.: Now in one state at least, in Kansas, in Gleeson versus Commissioner which is cited on page 15 of the petitioner's brief, the Kansas court said that at least in cases like this, where criminal prisoners were involved who were seeking habeas corpus; habeas corpus was criminal or essentially criminal in nature.

If that route were followed by this Court, of course, there would be no distinction, I suppose, between Burns versus Ohio and Griffin versus Illinois.

But assuming that that route is closed by virtue of the decisions like Tom Tong, we move on, I think, to a consideration of the nature of habeas corpus itself.

Habeas corpus may very well be a civil remedy, but I submit to you, it is no mere civil remedy.

It is long been recognized by this Court as an essential element in the whole fabric of our constitutional system.

In Darr versus Burford, for example, the Court said, “The writ of habeas corpus commands a general recognition as the essential remedy to safeguard a citizen against imprisonment by a State or Nation in violation of his constitutional rights.”

The same kind of language appears in Bowen versus Johnston, 306 U.S.

It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty.

And there is no higher duty than to maintain it unimpaired.

I think the popular view of habeas corpus is, perhaps, expressed by the read along quotation which I certainly shant read from Hendrick which appears on page 16 of the brief.

The whole idea being, popular idea being that as long as the writ runs, nothing like Hitlerian arrest can exist in this country.

The importance of the writ, I think is evidenced by the fact that it is found in the United States Constitution not in the Bill of Rights, been in Article 1, Section 9 and its inclusion there was pointed to by Hamilton in the federalist as being one of the reasons why there wasn't a need for a Bill of Rights because this protection was already in the Constitution.

It is found in Article 1, Section 13 of the Constitution of Iowa, and it is found in the constitutions of a number of the other states of the union, and I suspect but for the poor facilities available in the morning perhaps in all of the Constitutions, the states where I found the provision are listed on pages 18 and 19 of the petitioner's brief.

With all of these background, with all of this feeling about the great writ and the freedom writ, it seems that you are here considering the extension of a rule, the rule of Burns versus Ohio, to a cause of action, to a remedy which is not ordinary, which is not a mere civil remedy.

And which gives you a very good ground to distinguish between habeas corpus and all of the other civil actions trespass, (Inaudible) and so forth.

Now this has been done by one state court.

In Barber versus Gladden, a decision by the Supreme Court of Oregon, Barber sought a writ of habeas corpus against the warden or the prisoner in which he was imprisoned.

He moved for an order authorizing the judge to direct the county treasurer to post in undertaking on appeal and to pay all fees and cost on appeal, or in the alternative, to order the requirement waived.

An affidavit of poverty accompanied this motion.

The Supreme Court of Oregon held, it said by necessary implication of Griffin versus Illinois, that the statutes requiring an appeal barring were unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

The Supreme Court of Oregon said, it maybe -- that a distinction will be suggested between the two cases, namely, Griffin versus Illinois and this case, because Griffin versus Illinois was a criminal appeal whereas Barber's appeals is a civil action for habeas corpus.

But the argument cuts the wrong way.

To be sure, habeas corpus is in form a several proceeding.

But it is one based upon the provisions of the Oregon constitution.

Its function as applied to persons imprisoned for crime is to afford relief from confinement under a void judgment, a wrong which transcends in seriousness mere errors of law at trial.

Parking back again, of course, to what was at issue in Griffin versus Illinois.

Now unfortunately, as far as I've been able to find, Oregon is the only state that has done this, but there have been two cases, the case in the District Court and the cases in the Ninth Circuit of Appeals coming out of Oregon and therefore, governed by the Oregon law, the same prisoners involved, and both cases, namely, Daugharty v. Gladden in page 21 of the brief in the Federal District Court.

There the Federal District Court stated the question whether it was necessary in a habeas corpus proceeding to pay fees to the counting clerk to obtain the transcript of record, whether that requirement of the Oregon law was constitutional.

The District Court stated that such a requirement was unconstitutional, citing Griffin versus Illinois and Barber versus Gladden.

But the Court want to held -- want to -- where they had to hold that the state court remedies have not been exhausted that this prisoner could turn to the Supreme Court of Oregon for a writ of habeas corpus.

That case was then appealed to the Ninth Circuit.

The Ninth Circuit first reversed the District Court and held that the state court remedies had been exhausted pointing out that there has been six proceedings in the Federal District Court, five proceedings in the state courts, and one proceeding in the Ninth Circuit.

And that all of these together amount into a real exhaustion of the state court remedies.

Then the Ninth Circuit went ahead to say that the dismissal of the state court appeal because a plaintiff's inability to furnish an appellate transcript deprived him of equal protection under the Fourteenth Amendment quoting directly, “We hold only that those state processes ought to be made available to rich and poor alike.”

The case was remanded to the Federal District Court to allow Oregon a reasonable time in which to take action and conformity with the opinion barring which the prisoner was to be release.

Therefore I think there are presently two cases, one in the Oregon Supreme Court, one in the Ninth Circuit following apparently the Oregon law, both of which hold that in habeas corpus proceedings, the State may not, under Griffin versus Illinois, the Fourteenth Amendment, the Equal Protection Clause thereof, may not constitutionally interpose financial barriers between a prisoner and habeas corpus proceedings.

Now the State, of course, argues that if you extend the rule of Burns versus Ohio to habeas corpus, you will extend it to all civil actions.

I would submit respective to you that that does not necessarily follow.

As we have seen habeas corpus is not a mere civil remedy.

I think you have a line of distinction there.

It is obvious that the extension was so limited in Barber versus Gladden.

This distinction that I am suggesting, the distinction which is built on the personal liberty, on the very nature of this writ and the importance of the writ, as suggested by former Chief Justice of the Massachusetts Supreme Judicial Court in an article on page -- that's quoted on page 25 of the petitioner's brief.

It was suggested by Judge Hamley of the Ninth Circuit, a distinction which makes of habeas corpus an action so important at least when used in this context that the state should not be allowed to interpose these financial barriers between the writ and the prisoner.

Now I think this whole problem can be approached from a slightly different point of view.

It is a point of view that I alluded to earlier and that in response to a question that was put to me, to some extent came out.

Namely, I believe it is the law as stated by this Court that the states must of necessity under the Fourteenth Amendment provide some kind of a post-conviction remedy for imprisoned prisoners.

Now certainly, this is the feeling of the law enforcement official to the country.

I've quoted on page 27 of the brief a statement of a special committee on habeas corpus report to the conference of Chief Justices residing from a California report.

There they said that any proposition can be stated dogmatically in this field.

It is this.

State courts must provide post-conviction corrective processes which is at least as broad as the requirements which will be enforced by the federal courts in habeas corpus through the Due Process Clause of the Fourteenth Amendment.

A State can call this remedy whatever it wants but it must provide some corrective process, see Mooney versus Holohan.

Now candor compels me to admit to you that Mooney versus Holohan, to my opinion, does not go quite that far, although it goes quite far I believe.

However in Young versus Ragen, an Illinois prisoner attempted to obtain a writ of habeas corpus.

This writ was denied by the Illinois court without a hearing because it was insufficient in law and substance.

This Court speaking through Chief Justice Vinson said, “Of course we do not review decisions which rest upon adequate nonfederal grounds, and, of course, Illinois may choose the procedure it deems appropriate for the vindication of federal rights.

But it is not simply a question of state procedure when a state court of last resort closes the door to any consideration of the claim of denial of federal rights.

And what is the effect of the denials of habeas corpus in the number -- and that is the effect of the denials of habeas corpus in a number of cases now before this Court.”

“Unless habeas corpus is available, therefore, we are led to believe that Illinois offers no post-trial remedy in cases of this kind.

The doctrine of exhaustion of state remedies to which this Court has required scrupulous adherence of all federal courts presupposes that some adequate state remedy exists.

We recognize the difficulties with which the Illinois Supreme Court is faced in adapting available state procedures to the requirement that prisoners be given some clearly defined method by which they may raise claims of denial of federal rights.

Nevertheless, that requirement must be met.

If there is now no post-trial procedure by which federal rights may be vindicated in Illinois, we wish to be advised of that fact upon remand of this case.”

If the states must furnish a post-conviction remedy for prisoners, then I think it clearly follows that that post-conviction remedy, if the teaching of Burns versus Ohio and Griffin versus Illinois means anything, that post-conviction remedy cannot be limited only to the rich.

It must be available to the poor and the rich.

It seems to me that is the philosophy of the two cases.

Now let me say that in Iowa there is a post-conviction remedy.

It is habeas corpus.

It is available to any prisoner of the Fort Madison Penitentiary who has $4.

It is not available to these two prisoners because they do not happen to have $4.

The State argues that this doesn't make any difference because the petitioners have now exhausted their state remedies and can go to the federal courts.

It is true of course that in the federal courts there is an in forma pauperis proceeding.

Justice Charles E. Whittaker: Can I ask you a question?

Mr. Luther L. Hill Jr.: Yes sir.

Justice Charles E. Whittaker: Is it true we're not that every prisoner up at Fort Madison has $4.

The State pays it, doesn't it?

Mr. Luther L. Hill Jr.: Your Honor, work is made available by the State.

The affidavits of poverty filed in these cases, Your Honor, were not challenged -- have not been challenged as far as I know by the State.

Whether these -- I think for the purposes of this hearing, we must accept those affidavits as true, and in both cases they allege that they do not have the funds with which to pay the $4 fee.

This is something -- in the Lee County Iowa District Court, this is something that the Court had considered these affidavits.

It's certainly could have made an investigation to determine whether in fact the affidavits were true but this has not been done.

And so now as in the present posture of the case, I think we must accept the statements as being true, namely, they don't have $4.

Now the federal courts probably will be open to these petitioners.

I might point out however that Iowa is in the Eighth Circuit and that it is the Eighth Circuit opinion, Willis versus Utecht cited on page 8 of the State's brief that seems to hold that exhaustion of state remedies is not shown merely because of the poverty and consequent inability of the petitioners for writ of habeas corpus to obtain habeas corpus.

In that case which involved a Minnesota prisoner, the Ninth Circuit -- the Eighth Circuit said, “The proper procedure under Minnesota law” and this after the affidavits of poverty were filed.

“The proper procedure under Minnesota law was to file an application for such a writ with filing fees in the District Court.

And that the decision of that Court was adverse then was appealed to the Supreme Court of Minnesota.

Justice William J. Brennan: (Inaudible)

Mr. Luther L. Hill Jr.: That seems to be the whole -- I say it seems to be because in that case they allude to the fact that the Supreme Court of Minnesota had special -- had jurisdiction to issue a writ under special circumstances and they specifically say at one point in the decision that the special circumstances have not been shown, but then they go ahead with this other language to the effect of the remedy.

Now whether they are saying that they don't believe the affidavit of poverty which is possible and that if the affidavit of poverty had been true, the Minnesota court would have allowed the writ under the special circumstances Your Honor, I don't know.

But at any rate, I think the thing to observe here is that in Eighth Circuit it's not altogether clear that these two petitioners can go to the Federal District Court.

It's not altogether clear.

Now not only is that an area of perhaps some little doubt, but I think that it has been one of the hallmarks of our system that one set of court should have do regard for another set of courts.

As I understand the opinions of this Court, it has been the view of this Court that it would be unseeingly for a Federal District Judge to pass on the decision of a Supreme Court of State without giving -- or the courts of a State without giving the Supreme Court or the upper courts of that State an opportunity to pass on the alleged errors.

That's what we have here.

The allegation is in the petitions for a writ are based on the actions of Iowa law enforcement officers, Iowa police officers.

And it seems altogether fitting on pauper that those allegations of unconstitutional acts should first be passed on by the Iowa courts before the matter is referred to the federal courts.

Now I think the State's argument avoids another issue which seems to me to be at the heart of these cases, namely, the distinction between those who have $4 and those without.

I've alluded to this already.

As I said, Iowa courts are open to everyone with $4, apparently, $4 plus $3 when you go to the Supreme Court.

They apparently are close to those who do not have the $4.

The fact of the matter is that in Iowa there is a post-conviction remedy, a post-conviction remedy for prisoners with the means to obtain that remedy.

That set of prisoners can go through the Iowa courts.

The other set of prisoners, namely those without the $4, are to be sent to the federal courts.

It seems again that this is exactly the kind of an invidious discrimination or characterization which this Court struck down in Burns versus Ohio and Griffin versus Illinois.

Justice Felix Frankfurter: Mr. Hill, have you had opportunity to find out what the state of the law in the various states is regarding the duty believed to furnish, to bring the habeas corpus proceedings without a filing fee?

Mr. Luther L. Hill Jr.: Your Honor, I have not made an exhaustive survey.

I know that in Oregon because of the Barber case filing fees are not required.

I know that in New Jersey, there is an in forma pauperis proceeding, statutory proceeding apparently for habeas corpus.

How many other states -- I would suspect it's a minority, how many other states though have adopted the federal system -- federal plan of having an in forma proceeding I do not know.

Justice Felix Frankfurter: Either explicitly or with reference to habeas corpus.

Mr. Luther L. Hill Jr.: I -- I --

Justice Felix Frankfurter: It would less likely, I think probably where it is, there probably is a generalized provision, would you think so?

Mr. Luther L. Hill Jr.: I would think so.

I -- I am sure that it's not been done.

I'm sure that it can be of any kind that is not been done judicially, by judicial decision in any state other than Oregon.

And I am -- I am --

Justice Felix Frankfurter: So, it's a certain, It must be a certain fiscal difficulties for courts to do it.

I mean there must be appropriation for this, isn't it?

Mr. Luther L. Hill Jr.: But I would assume again that where there is already a criminal in forma pauperis method or procedure, these same funds could be made available.

Justice Felix Frankfurter: It all depends on how legislation's view.

You happen to know what the situation is in Illinois, with reference of Griffin, I believe, they appropriated $250,000 for --

Mr. Luther L. Hill Jr.: I -- I do not know what the present situation Your Honor, I don't know, Mr. Justice Frankfurter.

In conclusion then, I think we can say that these two men are still in prison in Fort Madison.

No Iowa court has as yet passed on the merits of their claim.

We submit that philosophy of Burns versus Ohio and the Griffin case guarantees to these indigent prisoners a day in Court.

Certainly we cannot assume that their constitutional claims are not meritorious.

We would respectfully submit that this Court can hold one of three things, three routes to get it to this desired end.

This Court could hold that habeas corpus is essentially criminal in nature following the Kansas distinction, and therefore there is no distinction between Burns versus Ohio.

I rather suspect --

Justice Felix Frankfurter: Do you mean every -- every habeas corpus or for --

Mr. Luther L. Hill Jr.: Every habeas corpus where criminal prisoners are involved.

Justice Felix Frankfurter: There criminal prisoners are involved.

Mr. Luther L. Hill Jr.: Yes sir.

Not habeas corpus where a wife is attempting to gain custody of children taken by the husband or something like that.

This is the distinction --

Justice Felix Frankfurter: But there are instances as Justice Stewart has indicated, there are procedural reasons for the distinction Tom Tong or such a case where the Court had to decide whether it was a final judgment, whether there was a final judgment or whether a certification was allowed by a divided court alone, if it was -- if the case couldn't come here on certification which said merely in criminal proceeding, that was there, the purposes of having direct review.

So that the determination of whether it was civil or criminal and that in Tom Tong, it's quite unrelated to this problem.

Mr. Luther L. Hill Jr.: And as I think Justice Stewart pointed out, there are other consequences that flow, the time governance and so forth.

So I say I think probably, this approach by this Court is foreclosed.

Although saying it is essentially criminal in nature, does not necessarily strip it all of these other civil characterization.

Justice Felix Frankfurter: And as I you illustrate this, we just now have to make subdivisions for habeas corpus.

Mr. Luther L. Hill Jr.: Yes sir, which has been --

Justice Felix Frankfurter: One would have to say habeas corpus in relation to or following upon a criminal proceeding.

Mr. Luther L. Hill Jr.: Yes sir.

Which is what the Kansas court did at least.

But a second approach would be to say that habeas corpus is such an important proceeding involving, as it does, the liberty of the individual that it should be made freely available at least to those criminal prisoners who are seeking it without the interposition of a filing fee requirement.

A third approach would be the whole that the -- and I think it would be a primitive --

Justice Felix Frankfurter: Let me stop you a minute.

Mr. Luther L. Hill Jr.: Yes sir.

Justice Felix Frankfurter: As to the second, that might apply to an impecunious mother trying to get hold of her child, gained by the father.

Mr. Luther L. Hill Jr.: I think Your Honor again, you could say that it is the liberty of the individual to make the distinction.

Justice Felix Frankfurter: If you are going to draw a line of importance, that's just as importance.

Mr. Luther L. Hill Jr.: It is just as important.

I agree with that, but I think that there is available here a distinction.

It maybe a distinction without a real deference.

Justice Felix Frankfurter: What we are talking about in this case is that we --

Mr. Luther L. Hill Jr.: But it isn't --

Justice Felix Frankfurter: -- the category of -- of --

Mr. Luther L. Hill Jr.: It isn't -- we don't have a mother here seeking the child of course.

The third case which would avoid this latter -- the third way of approaching this problem which would avoid the latter difficulty which you've raised, Mr. Justice Frankfurter would be to hold that the states, as I think perhaps you have done in Young versus Ragen, that the states must furnish a post-conviction remedy.

That being true, I think it necessarily follows that the post-conviction remedy must be open to rich and poor alike.

This distinction or this approach to the problem avoids the problem with the mother and avoids the problem of characterizing habeas corpus as a civil or a criminal proceeding, because it need be neither for this purpose, it is simply, in this case in Iowa, the post-conviction remedy, and as such it should be available to all alike.

Justice Charles E. Whittaker: Mr. Hill --

Mr. Luther L. Hill Jr.: Yes sir.

Justice Charles E. Whittaker: How soundly can one contend that states must provide a post-convictions remedy when, under the laws, as I understand it, they do not have to allow even a direct appeal.

Mr. Luther L. Hill Jr.: Well it seems to me Your Honor that -- I will admit that the wording in Young versus Reagan is not quite as clear as I'd like to have it be and yet that seems to be the necessary implication of that decision, namely, that there must be some post-conviction remedy and the Court said, “If the Illinois does not have such a remedy, we want to be informed.”

Justice Charles E. Whittaker: Truly, because the federal habeas corpus could issue the statement.

But isn't it true that the State doesn't have to allow even an appeal so far as the Federal Constitution is concerned?

Mr. Luther L. Hill Jr.: That is -- that is I believe true.

Yes.

This was said in Griffin versus Illinois, but once having allowed the appeal it must be freely available.

Justice Charles E. Whittaker: Oh surely to all.

Mr. Luther L. Hill Jr.: But it just seems to follow from the Young case that there must be a post-conviction remedy.

And certainly this has been the approach of the law enforcement official.

Chief Justice Earl Warren: Even if the State Mr. Hill, even if the State was not required to have a post-conviction remedy, though it did supply one for the rich from a theory of Griffin, it would still has to supply one for the poor, wasn't it?

Mr. Luther L. Hill Jr.: This would be -- this would be following from the argument in Griffin versus Illinois once having supplied in one, it must be available to all.

Justice William J. Brennan: Well that was not the (Inaudible)

Mr. Luther L. Hill Jr.: Well in that case, then you would have to, I think, again get at the essential nature of habeas corpus.

Now if you can ignore the criminal civil characterization which we've been talking about.

And if we can say that habeas corpus is a post-conviction remedy and not characterize it as either civil or criminal appeal, then it seems to me to follow very easily that you cannot offer habeas corpus to the rich and deny it to the poor, but this is to forget the ear marks that have been put on habeas corpus I think.

Chief Justice Earl Warren: Mr. Hultman.

Argument of Evan Hultman

Mr. Evan Hultman: Mr. Chief Justice, Honorable Members of the Court.

I would have to, at the outset, conclude earlier by this battery of attorneys to as present together with the court reporters that both the petitioner here and the respondent are indeed paupers at least in comparison with the number of attorneys and counsel that are involved as far as the prisoner is concerned here today and the State of Iowa.

But I'm sure the Court will agree that the brevity of the briefs in this particular instance and that the lack of counsel as far as numbers, in no way, are a reflection on the importance of the issue which is before this Court and as being presented here today in the form as far as the two briefs are concerned, and most briefly in the case of respondent to wit ten pages and three lines.

The State, at the outset, admits the first proposition of the brief of the appellant here that a petition for a writ of habeas corpus cannot be filed in Iowa, nor can an appeal be taken in habeas corpus proceedings until filing fees are first paid.

I would hope here that the Chief Justice would be as kind to the State of Iowa as to the State of Illinois when he stated in the case at bar which is the primary case, the Ohio case that we're referring to when he stated that the State's commendable frankness in this case has simplified the issue.

Let it be known at the State of Iowa secondarily at this point, admits all of the items of record that have been alluded to by counsel with reference to the procedures, which took place up to the time this case has been presented to the Supreme Court of the United States.

But gentlemen, the State here prays that although the State of Iowa will be left upon in the same way that they'd be blessed with the different and a contrary decision.

That in the case of the Burns case which is the primary one to which it has been eluded here and which the Court has brought to the attention in granting this writ of certiorari.

Because it is the contention of the State of Iowa that we have two different cases all together involved presently from the Burns case, and the Griffin case, or in the case of Burns and Griffin, these two cases were concerned with one direct attack, if you please, direct attacks upon two criminal convictions, through the processes of three criminal appeals.

None of which are we concerned with here today as far as the issues which are acquired in the case before this Court today.

I would like to allude first of all to a premise with reference to the case of the State of Ohio that was referred to a little earlier here by one of the justices and was referred to shortly in Griffin case.

Where it has been stated by men of this Court in by other members of this Court in previous years, that a State does not have a duty under the Constitution of the State of -- of the United States nor under the Constitution of the State of Iowa, in this particular instance, to provide even a method of appeal, let alone a post criminal conviction remedy.

The State does not even have to provide this as stated by members of this particular court.

But as this Court has positive, what you do provide and here again, get back to the box of the Burns and the Griffin cases.

If you do provide in the State of Iowa or in the State of Ohio in the case of Burns, or in the State of Illinois in the case of Griffin, then you must provided equally.

Gentlemen of this Court in Iowa, paupers are allowed to appeal from criminal convictions without the prior payment of filing fees by a statute, by a statute almost 100 years ago recognizing the basis that this Court in its decision in Burns long before this Court brought this case to the attention of the 50 states of this union.

Secondarily, likewise by a statute, State of Iowa provides again more than 100 years ago that filing fees and transcripts of record are a matter to be provided at state cost to a pauper.

But again differentiated completely in accordance with the Burns and Griffin cases in cases of direct attacks upon criminal convictions and criminal appeals.

Now I submit to this Court that here today we have an entirely different question being submitted and was ever submitted in Burns or in Griffin, because here are concerned with the nature of the writ of habeas corpus.

Iowa already provides for statute what is required by Burns and Griffin by this particular court.

So we must lock to the nature of the writ itself, and it is the contention of the State of Iowa that the nature of the writ of habeas corpus has from its very beginning, all through the period of history and to its present day been a civil action to gain a civil remedy, and this has been well settled by this Court and by other courts including the Supreme Court of the State of Iowa.

Nowhere as the definite distinction between habeas corpus and criminal prosecution, then we're clearly set forth, then by this very Court in, ex parte Tom Tong.

I would like to quote because this is a very short decision but I think it's very clear.

And I would disagree with the good Justice Frankfurter when you mentioned earlier a question that we have a different issue involved here today.

I believe we have the same issue as far as the nature of the writ itself.

The Court stated on this occasion that proceedings to enforce civil rights or civil proceedings and proceedings for the punishment of crimes are criminal proceedings.

In the present case, as the Court in Tom Tong was referring, and it was a criminal case, a criminal case where a poor Chinese store merchant was in violation of an ordinance of the City of San Francisco and a criminal charge had been brought against him and he sought the writ, the great writ of habeas corpus.

And the Court said in the present case, the petitioner has held under criminal process.

The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution.

On the contrary it is a new suit, a new suit.

Justice Potter Stewart: Is that a state of habeas corpus.

Mr. Evan Hultman: This was a state writ Your Honor, yes, brought by him to enforce a civil right which he claims against those are holding him in custody under criminal process.

The proceeding is, when instituted by himself for his personal liberty, not by the government to punish him for whatever his crime maybe.

And here, gentlemen, I state to you, is the clear distinction.

Justice Potter Stewart: I suppose there's nothing in the Constitution or anywhere else that would prevent a State if it wanted to from denominating a habeas corpus writ as a criminal proceeding.

Mr. Evan Hultman: No.

It'd be very fine, but this will be in accordance with the history of the writ of habeas corpus which has been delineated and determined by statute.

In fact, as I will get to the little later argument here, the history of the -- of the expansion of this right of -- writ of habeas corpus has been statutory in nature.

It has not been constitutional in nature.

I think here is a clear --

Justice Hugo L. Black: Suppose -- suppose Iowa did denominate a criminal statute, what would be your proceeding?

What would be your argument then?

Mr. Evan Hultman: If -- Your Honor, if it were a criminal proceeding and a criminal statute defined by the Code of Iowa, then most certainly, I would agree with the decision of the Court which I do agree with wholeheartedly.

The two cases which we have mentioned earlier, the Burns case and the Griffin case, if it is a criminal matter, most assuredly then, every individual should receive the equal protection of the law.

Justice Hugo L. Black: Can it be -- can it be made in a more criminal matter than it is, exempted by the State labeling it as a criminal proceeding.

Mr. Evan Hultman: I think this would have an effect, Your Honor, but I think it should have greater delineation than just that, because the writ applies to many, many, many instances other than criminal proceedings as the Court has mentioned earlier, for example of other, with this small child who is being detained under circumstances maybe under Court order for example, and the writ is being sought to obtain the freedom.

This most certainly is not a criminal proceeding.

It would never take the course of a criminal proceeding.

It is a civil proceeding, the same as the history of this particular writ as shown into the -- from the very beginning.

Justice Hugo L. Black: My clarity was more limited to that where simply, I understood you to say that the State should simply as the statute is saying that hereafter a habeas corpus proceeding designated as criminal proceeding.

Would that change your argument?

Mr. Evan Hultman: It most certainly would, sir.

Yes most certainly.

Chief Justice Earl Warren: Mr. Attorney General, may I ask you to what issue is that language of the Tom Tong case directed?

Mr. Evan Hultman: The opinion itself, Your Honor, but it's just about a paragraph in length.

Chief Justice Earl Warren: But was it -- was it on the question of whether -- whether he was entitled to file his petition in forma pauperis or was it directed to some other instance?

Mr. Evan Hultman: No, it was not directed to a question of in forma pauperis.

No.

That is correct.

It wasn't even an issue in Tom Tong.

It was delineation of the nature of the remedy itself and I think it's very clear and can be argued at this point, the difference in the remedies here, because, for example, if we take -- if we take the criminal procedures themselves and if the great writ is what it's been contended here today, then it would most certainly be mandatory upon this Court to say that the criminal procedure is highly memorial as to bail or a violation of the Constitution of the United States, because in the case of bail, in a criminal procedure itself, we arrest the man at any given stage of the proceedings and money is the sole determination as to whether as a man remains in custody or whether he walks free with his personal freedom, even before there has been a determination if you please, as to whether he is criminally honorable or not.

And so if you follow this thinking, this reasoning, then most certainly we must throw out the entire thinking of statute of all courts on the issue of bail, because here we are depriving a man before a court is even in a jury rendered a decision or a criminal appeal taken by direct access to the appellate courts before there has been a determination, if you please, of the man's innocence or guilt.

We make a determination based on money as to whether he is to secure his freedom or we deprive him.

Chief Justice Earl Warren: Mr. Hultman is that precisely the fact, doesn't it, the judge make his decision on whether -- on what is necessary to have the man respond to the criminal proceeding.

He can place him on his own reconnaissance; he can give him a bail that is within his means.

He has many different things that he can do.

It isn't just a question of money on bail, because the Court, all the Court is interested in is to -- is to have him respond to the criminal process.

Mr. Evan Hultman: This is true.

I would agree with you, Your Honor, but in comparison to $4 and in comparison to $3 as we're discussing in the instant case, in comparison with the two defendants, if you please, in this particular action, the sum of bail would be completely prohibitive in nature according to the argument here regardless of how much it might be.

Chief Justice Earl Warren: Well, I know but it wouldn't -- suppose the judge -- suppose the judge said to him, because you are an indigent and because we feel you will respond, we'll release you on your own reconnaissance.

Mr. Evan Hultman: Yes.

Chief Justice Earl Warren: But if you did have some -- if you did have some money, well we probably require you to use some bail.

Now that isn't -- that isn't out of the ordinary; judges do that all the time.

Mr. Evan Hultman: I would agree Your Honor but again, this is a matter which is permissive, on which the Court would agree.

Chief Justice Earl Warren: Yes.

Mr. Evan Hultman: And where the Court not permissive in my particular instance and declares the fund to be $100, $500, $5,000 or $10,000, if we follow this reasoning, then this act of the Court by the demanding of bail most certainly is in violation of the Constitution of the United States, the same as the requiring of a $4 or a $3 fee.

Even more so, the State argues, because this is in the criminal proceeding itself and a stage even prior to a determination as to whether or not the man is guilty of innocent.

Whereas in the present instance, we are requiring to something as I stated in my first major premise.

We are referring not to a criminal proceeding in the present instance, but we are referring to something on beyond criminal proceedings, the major premise of the State of Iowa that this is a civil remedy on beyond the criminal proceeding together with criminal appeal.

In the using of these writs, we believe that the convict in this particular essence is the plaintiff, the same as a plaintiff in any action to protect any of the personable rights.

And most certainly if this right of personal freedom is what it is, we have many rights which are of equal value, the right to protect, the freedom of speech, the right to protect the freedom of worship, all of these rights most certainly are as basic and as sound as the protection of individual liberty.

And yet all of us would agree, I am sure, that these are civil proceedings, these are civil rights, and that necessitates civil remedies, not criminal in nature.

The State of Iowa in this instance, if you follow this particular reasoning, is made a defense in a civil action by this particular defendant.

The burden is and should be in any civil action and in this particular instance placed upon the person bringing the suit, which --

Justice Charles E. Whittaker: Mr. Hultman.

Mr. Evan Hultman: Yes.

Justice Charles E. Whittaker: The object of the suit is what, liberty, isn't it?

Mr. Evan Hultman: The object of the suit, yes, the object of the suit is that a wrong has been done, if you please.

He's been deprived -- wrong.

Justice Charles E. Whittaker: Of his -- deprived of what?

Mr. Evan Hultman: Of his personal liberty.

Justice Charles E. Whittaker: Alright.

Now then, does your argument mean that the substantive right to require into the legality of his detention depends upon nomenclature?

Mr. Evan Hultman: No.

No Your Honor.

Justice Charles E. Whittaker: Is that what you call the proceeding?

Mr. Evan Hultman: No.

No, Your Honor.

Justice Charles E. Whittaker: You didn't call it civil or criminal?

Mr. Evan Hultman: No Your Honor.

Justice Charles E. Whittaker: What's the distinction?

I thought that was the right one.

Mr. Evan Hultman: I can't -- this is the very point I'm trying to make Your Honor.

I can't draw the distinction between the right of personal liberty and its value than I can the right of freedom of speech and the right of freedom of religion and the other rights which we hold justice here, all of which, if all has been considered as civil rights.

And this is why I cannot draw the distinction and why I believe that the writ of habeas corpus is a matter of determining a civil right.

Justice William J. Brennan: (Inaudible)

Mr. Evan Hultman: Well I didn't mean just in answer to the good justice question a while ago, just a matter of nomenclature as such.

It would mean that a legislature of the State of Iowa in its process is declaring this to be a criminal right, a criminal writ, not just detaching a name, a nomenclature up here.

That was the basis of my answer to the question here.

The Iowa legislature, Your Honor just enacted, in just putting nomenclature to determine the basis of rights in order to courts of the State of Iowa and this would not be the basis of my answer to this question.

It would only be because the right itself has been given and putting a criminal form as a criminal right, this writ as a part of criminal procedure by statute in proper.

Justice John M. Harlan: What would you -- what would you think would you think would be the situation if the State pass a statute like the Federal 2255?

Mr. Evan Hultman: I'm not sure that I follow the question, sir.

Justice John M. Harlan: Never mind.

Mr. Evan Hultman: I'm not sure if I follow.

Thus, we believe that that this writ is most certainly and always had been civil in nature.

Here I would like to allude just very briefly to the history of this particular writ.

In the case of the original Habeas Corpus Act, this Court is well aware of the fact that criminals, convicted criminals, were specifically even denied this right in its original form, in its original Act in 1679.

Criminals didn't even have the right to use the famous writ, the writ of habeas corpus.

In fact as Justice Frankfurter points out in Darr versus Burford, the case which has been referred to earlier, until the Federal Act of 1867, only federal prisoners even enjoy this particular right of the writ of habeas corpus.

State prisoners didn't even enjoy this particular right.

And so is the position of the State of Iowa that this right has basically drawn and been expanded from a basis of statute in nature and not constitutional in nature.

Justice Hugo L. Black: What -- what statute of 1867 were you referring to?

Mr. Evan Hultman: This is the Federal Act of 1867.

It's cited in the brief, Your Honor and has been referred to by Justice Frankfurter in the Burford, Darr versus Burford, case which is also cited.

Justice Hugo L. Black: Did I -- did I understand you to say under them prisoners in the states have not been entitled to a writ of habeas corpus?

Mr. Evan Hultman: As far as federal law was concerned, sir, as far as federal law was concerned.

In Iowa, most certainly before this time further, they were entitled to the writ of habeas corpus as they are now.

In the event, they filed a filing fee of $4 in the case of a District Court and $3 in the case of a Supreme Court.

Justice Charles E. Whittaker: Were they entitled to that remedy or not before 1689?

Mr. Evan Hultman: No.

No sir.

1867, Your Honor.

The original Habeas Corpus Act, I would say is most certainly in Iowa.

But if we go beyond, if we go beyond to the point where we assume for just a moment which I don't think that the State must do, if we assume that there are indigents in the State of Iowa or in any other state in the union that can't afford, even though in the State of Iowa as our brief points out, even prisoners in the State of Iowa are gainfully employed and in a matter of a very few days, even prisoners have sufficient money to provide the basis for the filing for a filing fee because they --

Justice Hugo L. Black: Is that the issue before us?

Mr. Evan Hultman: Pardon.

Justice Hugo L. Black: That issue, as I understood, was not before us.

I understood that there is no challenge --

Mr. Evan Hultman: I am --

I can't actually answer that question, Your Honor.

That was deposited by the other counsel.

I was not the Attorney General prior to the --

Justice Hugo L. Black: Well what does the record show?

Mr. Evan Hultman: I am not just sure on this point, Your Honor as to what the record does show.

I think it does have bearing even though it has been admitted.

Let us assume for argument that it has been admitted by the State.

Justice Hugo L. Black: Why -- why wouldn't it have a bearing?

Mr. Evan Hultman: I think it has --

Justice Hugo L. Black: The question would still be whether a pauper that's been shown and not denied, whether a pauper would be allowed to get a writ of habeas corpus.

Mr. Evan Hultman: I think it has a bearing for this reason.

That this, as a counsel for the State will get to in just a moment.

This is one of the great dangers that are inherent in such an extension of the Act itself.

Unknown Speaker: Do you think the basis in which (Inaudible)

Mr. Evan Hultman: It's in your brief.

It's in the State's brief.

It's a matter of state law and I -- pardon sir.

Unknown Speaker: I suppose (Inaudible)

Mr. Evan Hultman: Well I have referred to the statutes of the State of Iowa, which states that prisoners are gainfully employed Your Honor.

Well this is not an argument of counsel.

The statute is cited in the brief.

This is a fact by law in the State of Iowa that even prisoners are gainfully employed in the State of Iowa.

Chief Justice Earl Warren: Do all prisoners get the money?

Mr. Evan Hultman: Not in every instance.

They are eligible Your Honor.

But if --

Chief Justice Earl Warren: How do you know that this man has gotten the pay?

How do we know?

Mr. Evan Hultman: This -- this Your Honor, I cannot -- I cannot state.

No.

Chief Justice Earl Warren: Yes.

We're bound by the record, aren't we?

Mr. Evan Hultman: Yes, Your Honor.

It is believed by the State of Iowa that if such an extension were to be made that there are practical considerations within this extension as requested and wished here that would then lead be the seed of the destruction of the true value of the writ of habeas corpus itself.

Why?

Because it would do these things.

It would place an unbearable burden on the courts at all levels because, as this Court has held, this writ is not a matter of res judicata, it can be filed today, it can be filed tomorrow, it can be filed the next day, and everyday for the entire period that this prisoner is confined in a prison or institution of any kind.

Not only can he file it, but of course he can take the appeal and thus by making extending this rule of doctrine, making it completely free, we would be placing an unbearable burden on the Court.

We would be depriving, if you please, few who have meritorious claims, the few who do have and most certainly there are those who do a prompt and a fair disposition of their particular condition whatever it maybe, a writ of habeas corpus or anything else.

Justice Potter Stewart: How would you get a proper and fair disposition of their meritorious claims if they didn't have to support them?

Mr. Evan Hultman: If they did not, sir?

Justice Potter Stewart: Yes.

Mr. Evan Hultman: I am referring to not just in the case of the writ of habeas corpus, but all proceedings of every kind, all criminal even a poet decisions of the Court in the normal course of a criminal action because of the tremendous load which would be placed upon the courts of a given state, this given district court where this penal institution is located, the Supreme Court of the State of Iowa, if you please.

Justice Hugo L. Black: Mr. Attorney General, did I understand you to say that, roughly speaking, all the nature of your institutions can straight to get a $4 if they really have to?

Mr. Evan Hultman: Most certainly sir.

Most certainly.

All of their needs, clothing, foods, shelter, and everything, are provided as a matter of law first and secondarily these men are allowed to bear money, Yes Your Honor.

Justice Hugo L. Black: Are your all courts flooded with petitions of habeas corpus with these $4, with these available $4?

Mr. Evan Hultman: We have had a great number of them Your Honor.

In fact there had been a great number filed just on the basis of this Court as was the case in the case of the Massachusetts and New Jersey courts when they likewise had --

Justice Hugo L. Black: But the $4 came along with it.

Mr. Evan Hultman: Pardon, sir.

Justice Hugo L. Black: But the $4 accompanied the position.

Mr. Evan Hultman: Yes, Your Honor.

Justice Hugo L. Black: And you think now if that they don't mean that if the state to get $4, there would be an avalanche.

Mr. Evan Hultman: There will be a great deal more, I am absolutely positive of this Your Honor.

I think -- I think the record of other courts as cited in the brief who have referred to this very thing that is indicative of that thing.

Justice Charles E. Whittaker: (Inaudible) didn't reach that however by denying their affidavits of poverty in such a case.

It would be an issue of question whether they have $4.

You didn't -- you didn't do it here.

Mr. Evan Hultman: That is true, but this will take a considerable amount of time and effort on the part of the Court.

Well certainly and I would not argue with the Court that this was not done here, because as I posited earlier, and I must be bound by the record of course, I was not the Attorney General of the State of Iowa at this time, and so I cannot speak as the Attorney General as to the action that was taken at that particular time.

Justice Hugo L. Black: Does the Attorney General's office answer -- make responsible for these petitions or the local county?

Mr. Evan Hultman: They -- in the case of the first filing of the writ in our lowest court, Your Honor, it would be the County Attorney of the given county.

In fact, in response to the question asked earlier, the last long distance call I had before I left the State of Iowa was from the County Attorney from this very county positing the statement which I just previously made to the Court.

Chief Justice Earl Warren: I was wondering in the preparation of your argument about the avalanche it would flow from any such rule if we made any comparison between the number of petitions for habeas corpus in your state and those in Oregon where they -- where they do permit them to file in forma pauperis.

Mr. Evan Hultman: No.

I cannot Your Honor.

This I cannot.

I do not have the statistics --

Chief Justice Earl Warren: I am sure we get more in this Court from Iowa.

Now we do from Oregon.

Mr. Evan Hultman: Well there -- in that instance, Your Honor.

I think it's well to point out in just before closing and I shall close that the Oregon case and the federal case which has been posited here following the Oregon case which was based upon the decision that the Oregon court made, it's very interesting to me to see the position which the Oregon court took there and the language that they used.

They used the language that the basis for their position in the State of Oregon was the fact that they felt they posited that this Court would thus make the extension to the area of the case that we're arguing here today and thus the Oregon court is bound and they use very strong language that this was the determining basis for them making their decision.

In conclusion, the writ of habeas corpus, we contend, is a civil and not a criminal procedure.

The questions of our liberty have long been decided in civil actions brought to them to enforce them and in Iowa, one who institutes a civil action, must pay a reasonable filing fee.

It should not those who make use of our courts to enforce their fundamentals of liberties bear at least a nominal share of the burden.

It is submitted that an extension of the burden of proof to one of these basic liberties would require an extension to all of them.

Why should the line be brought at a writ of habeas corpus for civil liberty?

Why not for the prosecution of rights of free speech and of all of these other most precious liberties, which are just as important, or the rights of child custody or confinement in mental cases?

The Burns case is the logical, the legal, and the practical line of demarcation, the line between criminal and civil rights and criminal and civil procedure.

Therefore, respondent respectfully urges that this Court upholds the constitutionality of the Iowa statutes in this particular essence.

Chief Justice Earl Warren: Mr. Hill, would you like to --

Rebuttal of Luther L. Hill Jr.

Mr. Luther L. Hill Jr.: There's nothing further --

Chief Justice Earl Warren: You have nothing further.

Before we recess, Mr. Hill, on behalf of the Court, I should like to express our appreciation to you for having accepted this assignment as a public service.

We're always comforted when lawyers will do that.

And we feel that the interest of justice has always made more secure by reason of it.

So we appreciate it.

Thank you very much.

And Mr. Attorney General, we thank you for the very diligent, very arduous way in which you are protecting rights of your own statement.

We adjourn now.

Featured:

Burns v. Ohio - Oral Argument

Tue, 04 Dec 2012 20:37:49 +0000

Case:

Burns v. Ohio

Media File:

581_19590518-argument

Related Transcript:

581_19590518-argument

Transcript:

Argument of Helen G. Washington

Chief Justice Earl Warren: Number 581, William W. Burns, Petitioner, versus State of Ohio.

Mrs. Washington.

Ms Helen G. Washington: May it please the Court, my argument will be very brief.

As in Griffin against Illinois and Eskridge against Washington State Prison Board recently decided by this Court, this case concerns an indigent convicted defendant who was deprived of the appeal rights given him by state law, solely because he was too poor to pay one of the costs of appeal, here the docket fee demanded in advance for docketing his appeal papers.

As in the Griffin and Eskridge case the only question is whether the Due Process and Equal Protection clauses of the Fourteenth Amendment prohibited the state from denying appeal rights given to others, to one who does not have the money to pay the cost.

The details giving rise to this question maybe quickly stated.

The petitioner was convicted by a jury of a felony in a trial court in Ohio.

He was sentenced to life imprisonment in the state penitentiary.

Upon an appeal to the Intermediate Court of Appeals, his conviction was affirmed.

Ohio Law gave him further appeal rights in the Supreme Court of Ohio.

Under the law there is an appeal as of right if a constitutional question is involved.

In other cases one whose conviction of a felony has been affirmed by the Court of Appeals, may move the Supreme Court of Ohio for leave to appeal and will have leave granted if good cause for the appeal is shown.

The state statute and the rules of the Supreme Court provide, however, for the payment of the docket fee of $20 before the appeal papers will be docketed.

This petitioner who was in the penitentiary without the assistant of counsel prepared a motion for leave to appeal, a motion for leave to proceed in forma pauperis and then affidavit of poverty.

He transmitted these papers to the Supreme Court of Ohio together with a copy of the notice of appeal filed in the Court of Appeal.

The Supreme Court, acting through its clerk, immediately returned his papers to him, with the explanation that the docket fee required by statute and the Court's rule had not have been paid and that an appeal in forma pauperis was not an acceptable substitute.

Thus the Supreme Court of Ohio construed the statute and its rules as denying access through the Court to those who were unable to pay the fee, although everyone else could have his appeal docketed.

Under the Griffin and Eskridge decision such a discriminatory interpretation of the statute cannot stand.

Since Ohio has a general policy of allowing appeals, or appeal rights in the Supreme Court, it under those decisions cannot consistently with the Fourteenth Amendment deny them to one who does not have the money to pay the cost.

I don't think I need to elaborate anymore on that point.

We rest our case on the decisions in the Griffin and Eskridge cases.

On brief the state advances only one reason why those cases should not apply here.

The state says that the petitioner has had one appeal here, his conviction was affirmed and that he is not entitled to anything more, that when Ohio does give a second appeal it can establish any conditions for it that it sees fit.

I think that this is a misreading of Griffin.

The teaching of that case certainly is that if a state does grant appeal, it should grant it to rich and poor alike, that would be regardless of the level at which appeal was, regardless of whether it was the first, second or tenth appeal.

And we submit that this case could return to the Supreme Court of Ohio with appropriate instructions to give petitioner his rights.

Chief Justice Earl Warren: Mr. Vance.

Argument of William M. Vance

Mr. William M. Vance: Mr. Chief Justice and justices, please the Court.

I think the whole question before this Court here is whether or not the effect of Griffin should be extended because in Griffin under the statues of the State of Illinois, felony cases are appealed only and directly to the Supreme Court of Illinois.

Misdemeanor cases are appealed to the appellate court.

Before our case can be appealed or considered on appeal by the Supreme Court of the State of Illinois, they had to have a transcript.

Griffin had no transcript and he said he had no money to buy one, therefore, his case was heard in lower court one appeal.

In Ohio it is different.

Our primary appellate court is the Court of Appeals, a three-judge court of which we have ten in the state.

In this case Burns was convicted in the trial court.

He had self retained counsel.

He was not a poor man.

He appealed to the Court of Appeals.

He had his transcript.

He got a full appellate review before the Court of Appeals and his case was affirmed.

Now at that stage, he filed a notice of appeal to the Supreme Court of Ohio.

He did the necessary administrative step two of notifying the prosecuting attorney before he filed his application for an appeal.

At that time as I say he apparently was not indigent, he had his own self retained counsel.

He had his transcript.

He went out and he had his review.

He dropped and abandoned, at that time that contemplated appeal to the Supreme Court of Ohio.

It was not until years later after Griffin, the Griffin decision had been announced and after he had spent those intervening years in the penitentiary where whatever resources that he might have had when he first went in were undoubtedly dissipated and he was in truth and in fact a pauper, that he then goes and without taking that necessary step of notifying the prosecuting the attorney, he files his notice of appeal in the Court of Appeals and one in the Supreme Court of Ohio and tries to do it on a pauperis affidavit and they send back and say it takes $20 to get here in this Court on that kind of a motion.

Justice Felix Frankfurter: What was the date of conviction?

Mr. William M. Vance: The date of the conviction, if it please the Court, was in 1953.

It was four years later that he attempted this second attempt to appeal, the first one having been abandoned.

Chief Justice Earl Warren: If he had the $20 and had paid it to the Court, would he have been properly before the Supreme Court?

Mr. William M. Vance: He would not because he had not, before doing that, notified the prosecuting attorney.

I have set forth in our brief --

Chief Justice Earl Warren: Is that problem construed that way by your Supreme Court?

Mr. William M. Vance: I don't know, if it please the Court, whether that question has ever been raised, because I think that just routinely the prosecuting attorney is notified, before they file the motion.

Chief Justice Earl Warren: Do they have to file notice before they appeal to your Court of Appeal?

Mr. William M. Vance: No.

Chief Justice Earl Warren: And then another one to -- before he appeals to the Supreme Court.

Mr. William M. Vance: That is correct.

Chief Justice Earl Warren: They have to file both times?

Mr. William M. Vance: Yes, with the prosecution.

Chief Justice Earl Warren: Alright.

That is your procedure.

Mr. William M. Vance: That is correct.

Justice Felix Frankfurter: You have to get permission don't you?

Mr. William M. Vance: Get permission of the prosecuting attorney?

Justice Felix Frankfurter: No, no, no, the Supreme Court or --

Mr. William M. Vance: Oh yes, what he attempted to do, file is nothing but a motion for leave –

Justice Felix Frankfurter: Yes.

Mr. William M. Vance: -- a motion for leave, and there is no matter of right involved in this case at all.

Chief Justice Earl Warren: But what I'm -- my point is does he have to -- suppose he had the money, he has already filed one with notice to the prosecuting attorney under his original appeal, now when he seeks to go to the Supreme Court, if he had $20 and paid it, would he have to file another notice with the prosecuting attorney?

Mr. William M. Vance: Right, I take it from the statute if Your Honor please he would, because that reason is as follows.

Chief Justice Earl Warren: Is that the practice in your state?

Mr. William M. Vance: Yes it is a practice.

It says that before the filing of a notice of appeal or a motion for leave, for leave must first be obtained a copy thereof must be served upon the prosecuting attorney.

Chief Justice Earl Warren: But did he serve it on the prosecuting attorney?

Mr. William M. Vance: Not in this latest attempt, he did on the first attempt when he abandoned, which he abandoned.

Justice William J. Brennan: (Inaudible)

Mr. William M. Vance: That is correct.

He filed with the --

Justice William J. Brennan: And the court did not consider his application.

Mr. William M. Vance: No.

Justice William J. Brennan: Never got beyond the clerk?

Mr. William M. Vance: Never got beyond the clerk's office.

Justice Charles E. Whittaker: (Inaudible)

Mr. William M. Vance: Not in the 1957 attempt, no, although required by statute, he had not done that and hasn't done so yet.

But back in 1950 or 1951 when he filed his motion for leave to appeal in the Supreme Court of Ohio, he had complied with the statute and given a copy of it to the prosecuting attorney, and then he went no further with it, he just dropped it.

Justice William J. Brennan: But Mr. Vance this case is not before us (Inaudible) in Ohio that indicates that his failure to serve this notice had anything whatever to do.

Mr. William M. Vance: No that's the peculiar thing.

It's merely here on a letter from the clerk of the court.

Justice William J. Brennan: As far as we know, all that we have is that it was not accepted in the Supreme Court because it was not accompanied by payment of $20.

Mr. William M. Vance: By $20, that's it.

Justice William J. Brennan: Well then what significance can we attach to if it's the fact, I assume it must be, that he didn't serve the required statutory notice on the prosecutor?

Mr. William M. Vance: Well I think that's significance in this, that even if he had sent his $20 he wouldn't have been properly before the Court.

Justice William J. Brennan: Well, what significance can we attach to it?

There is nothing before us in this case that anything whatever to do with his failure to be heard in the Supreme Court.

Mr. William M. Vance: I think You Honor is correct.

Justice Charles E. Whittaker: (Inaudible)

Mr. William M. Vance: I think he probably must because there is nothing except for my statement in the record, to indicate there was that debate, it's in my brief.

Justice Charles E. Whittaker: The man had no lawyers.

Mr. William M. Vance: He had no lawyers, at his time, in 1957.

Justice Charles E. Whittaker: (Inaudible)

Mr. William M. Vance: That is correct.

Justice Felix Frankfurter: Now is there -- will an appeal lie at any time after the Court of Appeals make an adjunct decision?

Mr. William M. Vance: Yes we have no time limitation for appeal to the Supreme Court.

Justice Felix Frankfurter: From the Court of Appeals?

Mr. William M. Vance: That's correct.

Now --

Chief Justice Earl Warren: Well then why wouldn't the first notice be sufficient?

Mr. William M. Vance: I raised that question in my own mind frankly, whether or not the effect of that first notice would carry over, but the statute says that when a motion for leave to file is -- a motion for leave to appeal is filed, a copy of it shall served first upon the prosecuting attorney and that this was not a proceeding on the notice filed back in 1950, but it was an entirely new notice and an entirely new proceeding.

Justice Charles E. Whittaker: (Inaudible)

Mr. William M. Vance: That is correct and I can say in all candor to this Court that, that was not why the clerk returned the paper.

He returned the paper because the rule of the court says that he will accept no filing except when the $20 docketing fee is paid, now that's squarely before the court.

Justice Felix Frankfurter: He says that, he says that, the clerk says that what you just (Inaudible)

Mr. William M. Vance: Yes.

Justice Felix Frankfurter: But was there, clear me up, was there after the Court of Appeals for the first appellate division turned it down (Inaudible), did he then file a notice to the Supreme Court?

Mr. William M. Vance: He did and also served to prosecuting attorney.

Justice Felix Frankfurter: (Inaudible)

Mr. William M. Vance: Yeah.

Justice Felix Frankfurter: And anything after that?

Justice Tom C. Clark: What happened to that?

Mr. William M. Vance: He abandoned.

Justice Felix Frankfurter: When you say he abandoned, formally or how do you express that?

Mr. William M. Vance: There was nothing ever -- never filed, there was no transcript brought up for any thing.

Actually he brought about that time a mandamus action to compel the Court to proceed on other indictments that were pending against him and in the litigation of that he was defeated by the appellate court of Hamilton County, and then he simply went to jail and proceeded no further with any appeal.

Justice Felix Frankfurter: Well he is now worse off than having file something (Inaudible) than if he hadn't done anything and began to file (Inaudible)

Mr. William M. Vance: That is quite true, that's quite true.

Justice Felix Frankfurter: So that in view of your actual statute of limitation anybody has been convicted, no matter how far back, the conviction was reviewed in your Courts of Appeals and your appellate courts, it can now file a notice of appeal.

Mr. William M. Vance: Yes, and that that is of course what makes it such tremendous importance in the State of Ohio.

We have some 16,000 felons in our penal institutions and literally thousands of them would come within that category, where if griffin is extended, to say it that covers not only the furnishing of a transcript, but the payment of this minimum fee of $20, we are faced with simply thousands and thousands of belated appeals, based upon --

Justice Felix Frankfurter: Is this an estimate of yours or have any statistical basis.

Mr. William M. Vance: I have no statistical basis.

Justice Felix Frankfurter: Therefore the question is how many convictions affirmed in Appellate, your intermediate Appellate court for which review was sought, no reason given and no reason was sought, proceedings cannot be brought saying he didn't -- we couldn't because he didn't have $20.

But you just say that's your guess there --

Mr. William M. Vance: That is just my guess, yes, I'm rather --

Chief Justice Earl Warren: Well the same thing was said about Griffin when it was here, but I haven't seen that happen in Illinois or the other states --

Justice Felix Frankfurter: Not in Illinois but –

Mr. William M. Vance: Of course we think there is a tremendous difference a transcript of testimony which run in to the hundreds of dollars and a $20 filing fee.

Now Griffin draws this --

Justice Tom C. Clark: (Inaudible)

Mr. William M. Vance: Well it's a lot easy to get $20, than it is to get $2,000 to get a transcript, that's the whole point.

Justice Tom C. Clark: Did he have a right to -- could he appeal as a matter right?

Mr. William M. Vance: There is no constitution question.

He could appeal as a matter of right to the Court of Appeals and did.

Justice Tom C. Clark: Well what about from there on?

Mr. William M. Vance: No he -- unless is there a constitutional question involved, then he can only appeal by leave of court, in a felony case.

Justice Tom C. Clark: Did he have any constitutional question?

Mr. William M. Vance: There were none involved in his case.

Justice Felix Frankfurter: But what's that phrase that you use in Ohio in denying these leaves of appeals, a regular phrase about no constitutional --

Mr. William M. Vance: No debatable constitutional rights involved.

Justice John M. Harlan: (Inaudible)

Mr. William M. Vance: I don't think they did Your Honor.

Justice John M. Harlan: There is no record.

Mr. William M. Vance: No.

I simply --

Justice John M. Harlan: (Inaudible)

Mr. William M. Vance: I wasn't involved in that case at that time, I wasn't even in the country at that time, but Mr. Schoettmer who will share my time is the Assistant Prosecuting Attorney and he is thoroughly familiar with the factual background of the case.

Justice Felix Frankfurter: Is the record here?

Mr. William M. Vance: The record is not here accept that --

Justice Felix Frankfurter: (Inaudible) you said pleas to appeal will only be granted if there is a constitutional question, is that right?

Mr. William M. Vance: Oh no, no appeal is a matter of right, if there is a constitutional question involved.

Justice Felix Frankfurter: Oh, in the Supreme Court?

Mr. William M. Vance: Yes same thing.

Justice Felix Frankfurter: And the other --

Mr. William M. Vance: But in the Court of Appeal you can appeal without leave.

Justice Felix Frankfurter: No, I'm not asking, I want to know whether on what grounds, if may I ask this, on what grounds can you ask the Supreme Court to review the affirmance of a conviction in the appellate court, on which ground?

Mr. William M. Vance: On any ground, even the weight of the evidence.

If the -- on the hearing of their motion for leave, they are convinced that there was some injustice done here in the --

Justice Felix Frankfurter: Well so that insofar as anybody knows, if he had his $20, he said he could have been heard in the Supreme Court in that case?

Mr. William M. Vance: It's my opinion --

Justice Felix Frankfurter: So far as anybody knows?

Mr. William M. Vance: By the leave of the Court.

Justice Felix Frankfurter: By the leave of the Court.

Mr. William M. Vance: That is correct.

Justice Tom C. Clark: Did he file (Inaudible) though?

Mr. William M. Vance: In the Court of Appeals, yes.

Justice Tom C. Clark: You mean in the Supreme Court.

Mr. William M. Vance: No they do accept, it lose --

Justice Felix Frankfurter: Was that in -- is there any decision of the Supreme Court or this merely a what shall I say, careful clerk or clerk (Inaudible) $20 is there any decision of the Supreme Court of Ohio that if in fact an application is made for the Supreme Court to take the case, with an affidavit that he is a pauper, he is indigent, is there a decision of the Supreme Court of Ohio, that they (Inaudible) but they can't take it.

Mr. William M. Vance: No --

Justice Felix Frankfurter: The statute forbid it, does the statute forbid it?

Mr. William M. Vance: The statute says that the clerk shall not accept a filing until the following fee is paid.

Justice Felix Frankfurter: But does it say anything about -- is the statute -- the statute hasn't been construed?

Mr. William M. Vance: Construed not in a case, but by the rules of the Court.

The Court has adopted a rule, yes sir.

Justice Felix Frankfurter: By the rule of the Court.

Mr. William M. Vance: Yes.

Justice Felix Frankfurter: And does that rule exclude application to the Court to be relieved from the operation of the rule because of poverty?

Mr. William M. Vance: Not specifically.

It simply says that the no case shall be docketed unless it is the -- that --

Justice Felix Frankfurter: Well that, we have such a rule too you're your application (Inaudible)

Mr. William M. Vance: Yes.

Chief Justice Earl Warren: Well, Mr. Vance the clerk in his letter said this will served to acknowledge receipt of your motion for leave to proceed in forma pauperis motion for leave to appeal and notice of appeal, we must advice that the Supreme Court has determined on numerous occasions that the docket fee required by Section 1512 of the General Code of Ohio and the rules of practice take precedence over any other statute which may allow a pauperis affidavit to be filed in lieu of a docket fee.

So either the clerk is wrong or your court has construed it to mean that there is no access to that court at all unless the $20 fee is paid.

Mr. William M. Vance: What Mr. Wallace, the clerk means there, there has been no decided cases determining it, but the justices of the court under whom the clerk operates has told him on many occasions not to take anything unless he gets the $20.

Chief Justice Earl Warren: He doesn't say that.

Mr. William M. Vance: No, he says the court has determined, but it --

Chief Justice Earl Warren: The Supreme Court has determined on numerous occasions --

Justice Felix Frankfurter: Why don't you --

Mr. William M. Vance: Enjoin administrative determinations.

Justice Felix Frankfurter: May I ask you (Inaudible) a good reason, why didn't you say there is no judgment of the Supreme Court of Ohio before us, the clerk isn't the court?

Mr. William M. Vance: That's what we are contending, there is no judgment of the Supreme Court of Ohio for this Court to review.

Justice Felix Frankfurter: It says on writ of certiorari that the Supreme Court of Ohio --

Mr. William M. Vance: Yeah.

Justice Felix Frankfurter: That implies the Supreme Court of Ohio did something, either affirmatively or negatively which is the record of the Court, there is no record of the Court.

Mr. William M. Vance: You have nothing here but a letter from a clerk.

Justice Felix Frankfurter: (Inaudible) from the clerk?

Justice Tom C. Clark: How can he get one unless the clerk (Inaudible)

Mr. William M. Vance: Yeah that's quite true.

Justice Hugo L. Black: Now may I ask you this question --

Justice Felix Frankfurter: Well he can go to the Supreme Court and ask mandamus or something?

Justice Hugo L. Black: (Inaudible) but let me ask you this, in his motion for leave to appeal, you say that if you raise a constitutional question in this appeal, he had a right to appeal as a matter of right --

Mr. William M. Vance: If the face of the record shows that there is a constitutional record.

Justice Hugo L. Black: His motion has not been denied, has there?

I mean the facts (Inaudible) have not been denied and he alleges that in his motion for leave to appeal, the judgment against him was rendered upon error, prejudicial conflicting with his constitutional guarantees with the Fourteenth Amendment of the Constitution of the United States, he alleges that.

Mr. William M. Vance: Yes, he alleges it.

Justice Hugo L. Black: That's the ground on which he sought the appeal.

Mr. William M. Vance: That is correct.

Justice Hugo L. Black: And if there is a genuine constitutional question as well, he can appeal as a matter of right and not merely by leave?

Mr. William M. Vance: Right.

Justice Felix Frankfurter: Is there -- have you (Inaudible) -- has your Supreme Court (Inaudible) jurisdiction of mandamus?

Mr. William M. Vance: Yes, the Supreme Court has.

As a matter of fact all of our courts --

Justice Felix Frankfurter: We haven't yet got a letter from the clerk saying I would accept your petition for mandamus, have we?

Mr. William M. Vance: No, no, and there has been no effort to --

Justice Felix Frankfurter: Not constant, I mean (Inaudible), not so long ago was a case that this Court, but not this Court, but a case where the question was what the power of the Supreme Court (Inaudible) was and it was argued them that statute is clear and every thing else and Chief Judge McGruder wrote for that court that I believe that when I told so, but not before.

How do we know what the Supreme Court of California may do (Inaudible), does anybody know?

Are you prepared to tell us?

Mr. William M. Vance: I am not.

Justice Felix Frankfurter: Is Washington prepared to tell us?

Justice Hugo L. Black: Are you prepared to tell us whether this prisoner can go up and see the Supreme Court personally?

Mr. William M. Vance: If he has a case pending, I handle habeas corpus cases and I have had many prisoners who come over and go before a Supreme Court and act as their own counsel, they are always brought over and make a personal appearance.

Justice Hugo L. Black: But this man leaves the jail and goes to see the Supreme Court --

Mr. William M. Vance: They have a guard with them, but they do an admirable job of arguing their own case sometimes.

Justice Felix Frankfurter: Inaudible) he was able to file the document with the Supreme Court of the United States.

I know (Inaudible) and other courts are, but perhaps you can do the same even in Ohio.

Chief Justice Earl Warren: Well Mr. Vance --

Mr. William M. Vance: (Inaudible)

Justice Felix Frankfurter: No he didn't, he just (Inaudible)

Mr. William M. Vance: Wyoming (Inaudible)

Chief Justice Earl Warren: Mr. Vance I understood you to say that its been your contention all along that this was not -- he was not appealing from the judge on the Court, but this was only a letter from the clerk, do you raise that in your brief?

Mr. William M. Vance: We do not.

Chief Justice Earl Warren: Did you raise at any place along the line?

Mr. William M. Vance: No.

Chief Justice Earl Warren: Well then --

Justice Felix Frankfurter: We instead have a judgment.

Chief Justice Earl Warren: It's a little late now.

Mr. William M. Vance: Yes it is, I didn't raise it.

The Court raised it and asked me that I (Inaudible) thought about it.

Chief Justice Earl Warren: Yes.

Justice Felix Frankfurter: You can't foreclose people saying there is no judgment because you didn't raise it.

Is there a judgment?

Mr. William M. Vance: No there is only a letter from clerk.

Justice Felix Frankfurter: Fine.

Mr. William M. Vance: We feel here that the due process, equal protection is not involved, the same rule applies in this man as to all other people who file in the Supreme Court of Ohio.

He had his appeal, he had his transcript, and the Griffin decision is rather a black and white affair, it says the rich here and the poor here, actually we as all know life is great mass of grays, with all degrees of fluence in it.

That here is a man who has $100 saved up, a hard working man who has $100 to pay the matriculation fee of his son, who wants to go to college and he gets into some trouble and he wants to appeal his case and he has to reach down and take this $100 to get in.

But here is the other fellow on the other hand who stole a $1,000 and blew it up in one wild night of entertainment, so he is broke and he gets into that fix and the taxpayers have to let him in for free and furnish him with a lawyer and give him a transcript and let him file a (Inaudible), where the man with a, just a modicum of money has to expend that until he too is a pauper.

Chief Justice Earl Warren: Well Mr. Vance let me ask you this please, suppose this was a constitutional case and nothing else in it, and the defendant had no money, made his affidavit such as he did here, could he file it, could he document it?

Mr. William M. Vance: He could not ender the existing rules of the Court, with this exception and we -- I was afraid that question might be asked.

Chief Justice Earl Warren: Why is that (Inaudible)[Laughter]

Mr. William M. Vance: And I thought over the lunch period what I would say to you and I do believe that this is it, that the rule making power is the Court itself and if they can make rules they can modify rules and I think in a hard situation where they were caught on the horns of a dilemma, the Court has the plenary power to say that although this is not customary with this Court, in this case we want to hear in this case and you can come in without paying this $20.

Chief Justice Earl Warren: Alright now could they do that just as well if it wasn't a constitutional case, but --

Mr. William M. Vance: I think they could, I think it's within the plenary powers of the Court.

Chief Justice Earl Warren: To get back to Justice Black's question, how could a man avail himself of that, how could he get into court to have that determined by the Supreme Court if their clerk wouldn't file because he didn't have $20, that's --

Mr. William M. Vance: And the answer is that he couldn't, unless the Court through the communications between the clerk and the Court became aware that there was a crucial matter that they wanted to hear.

Chief Justice Earl Warren: I see.

Justice Felix Frankfurter: This court --

Justice John M. Harlan: (Inaudible)

Mr. William M. Vance: Not to my knowledge.

Justice Felix Frankfurter: Mr. Wallace gets many number of letters addressed to the court --

Mr. William M. Vance: Yes.

Justice Felix Frankfurter: So then treat it as though they were form of certiorari.

Mr. William M. Vance: Yes.

Justice Felix Frankfurter: Clerks are not (Inaudible) court.

Chief Justice Earl Warren: Well Mr. Vance you have answered Justice Harlan that as far as you knew no one had ever tried to do that, what was the clerk referring to when he said on numerous occasions the court has held that they cannot do that?

Mr. William M. Vance: Well --

Chief Justice Earl Warren: Now there must have been somebody --

Mr. William M. Vance: Yes it's a series of letters, but what I thought the justice meant was has anyone got himself into a position where the Court has overridden its own rule.

Chief Justice Earl Warren: Oh I see.

Mr. William M. Vance: As I suggest it might have; Mr. Schoettmer of the prosecuting attorney's office.

Argument of Harry C. Schoettmer

Mr. Harry C. Schoettmer: May I please the Court.

Chief Justice Earl Warren: Mr. Schoettmer.

Mr. Harry C. Schoettmer: Counsel suggested that I knew this case personally as of the trial level and however that's just not so, I did not try the case, it's an assistant tried it who is long gone, however it fell upon my shoulders to take it after he left, I have to bury his dead, even though this man is obviously still alive.

Justice Frankfurter I would like to say that your position here, that this is a letter from a clerk and not a judgment is the correct position that this man should go back and do something else and get a judgment first and when I first came into Burns' case in this appeal I had a very similar thought, however, I think we have to concede this fact that this letter from the clerk is in reality and in effect the judgment of the Court.

In other words it would be impossible in Ohio for a citizen to file a mandamus action in the Supreme Court without paying $20.

It is also impossible and there is a court decision on this in the Wanamaker case, Wanamaker versus Miller that counsel for the petitioner has cited, that a petitioner or a plaintiff could not file a mandamus action against the clerk of the Supreme Court in a Court of Appeals.

Even though be could file it in forma pauperis in the Court of Appeals it would not lie against the clerk of the Supreme Court.

The Wannamaker case spells out fairly firmly.

So, admittedly this is --

Justice William O. Douglas: What is the citation for the Wannamaker?

Mr. Harry C. Schoettmer: Your Honor --

Justice William O. Douglas: It seems to be in the briefs.

Mr. Harry C. Schoettmer: 160, it's on page ten of petitioner's brief in the note, 164 Ohio State 174.

Here is the case in question, and I think we have to face up to it.

As Your Honor pointed out this is a unique case, we have no record to go back to, we have no law as such except the Griffin, there is no long line of thought on this issue, but I think we can say this, that in the first instance we should concede therefore that the letter of the clerk of the Supreme Court is in effect the judgment of the Ohio Supreme Court, and I say that because in my interpretation of Wannamaker case, there were certain -- there was this mandamus action brought against the clerk of the Supreme Court and the Supreme Court members all stepped down and Court of Appeals members stepped up and made the decision in the Wannamaker case.

Justice William J. Brennan: May I ask the fact, the fact you are telling us that Ohio concedes for the purpose of this case, this Court may treat the letter as the judgment of the Supreme Court of Ohio.

Mr. Harry C. Schoettmer: I think in effect in the law of the Supreme Court of Ohio that that has to be accepted Your Honor, even though we would love --

Justice Felix Frankfurter: That is not binding -- I want to ask -- that is binding on us.

We have held again and again what the state court thinks of a judgment is not in our view necessarily of a judgment.

Mr. Harry C. Schoettmer: Well, it is a unique position for that reason.

Our second point that I think we should concede here in this Burns case is it without the payment of $20 by Burns that no papers could be filed in the Supreme Court and therefore he could not file under the law his motion for leave to appeal.

Now Your Honor you mentioned before, so how he could possibly get into court?

Suppose the Supreme Court wanted to hear a case that was in the Court of Appeals, and how could it get to the court?

Has there ever been a circumstance where the Supreme Court has ordered a case that had been heard in the Court of Appeals into its court?

That if Ohio does have that procedure, the Supreme Court can order a decision of the Court of Appeals certified to it.

At this stage of our history in Ohio we have not had the position in such a circumstance that the party could not pay the $20.

Without question in my opinion, if that did happen, if that were true in Burns, without question if the Supreme Court said we want to hear that case from a first district appellate court bring it up here, if Burns comes in and says well Your Honor I don't have $20, I am confident that the Supreme Court of Ohio would say we'll waive the $20 without any question in my mind that the Supreme Court would not (Inaudible) its own order because of its rule of $20.

Chief Justice Earl Warren: That wasn't exactly the question I ask.

I assumed of course that the Court could waive its own rule if it wanted to do it, but my question was, were there any cases where the defendant was the one who wanted to have a hearing in the Supreme Court and where the Supreme Court gave him that relief even though he could not pay the $20.

Mr. Harry C. Schoettmer: Not that I know of.

Chief Justice Earl Warren: Yes well that's my only question.

I can see the other very, very plainly, but this a little different, you must --

Mr. Harry C. Schoettmer: On that question, but this just establishes our point that much harder and that is this.

In the light of the concessions that we have made here, these two points, we feel that and we request that it be conceded that a court, the Supreme Court of Ohio, this Court, any court has a right to determine the conditions precedent to the procedure to be followed in perfecting an appeal to that court, as long as they are reasonable.

Now when they are unreasonable, when they are completely out of hand without question, the Court maybe infringing on somebody's rights, but as long as these conditions precedent are reasonable, we feel that without question any court can say what a man has to do in order to perfect an appeal to that court, why?

Chief Justice Earl Warren: Even though it denies to an indigent person a right that a person with money could have?

Mr. Harry C. Schoettmer: You Honor I don't know why it's so necessary to say that money is such a separate and distinct type of condition precedent to any other type of condition that might be put forth.

Any number of things a court can say that it has to be done by the defendant or by the appellant in order to get in.

Now why we should select money as some significant or extra important sensitive condition I just don't understand that.

Justice Felix Frankfurter: What discrimination have you in mind in which you can classify the granting and the not granting, has the element of time within which you must file it?

Mr. Harry C. Schoettmer: That's one Your Honor, no this is another.

Justice Felix Frankfurter: (Inaudible)

Mr. Harry C. Schoettmer: Counsel mentioned notice, now let's assume that --

Justice Felix Frankfurter: What kind of a distinction is there between -- is there discrimination in any sense of that meaning, that one fellow you must give notice as against the fellow who didn't have to give notice, is that it?

Mr. Harry C. Schoettmer: That's right and if one does not, then he doesn't get --

Justice Felix Frankfurter: Is that discrimination in any invidious or hurtful sense?

Mr. Harry C. Schoettmer: Well, I don't think it's invidious or hurtful and I suggest that to Your Honor in the light of my discussion with the Chief Justice in that, in the history of Ohio we've never had that circumstance develop in an appeal, up to this time, up to this man.

Justice Felix Frankfurter: But you didn't have that because you didn't have the Griffin case until recently.

Mr. Harry C. Schoettmer: Well --

Justice Felix Frankfurter: The Griffin case didn't make a distinction.

For my point of view it's least fiction to say that was the law all long, it wasn't, it was made so in Griffin.

Mr. Harry C. Schoettmer: Well, a pauper, what is a pauper as such Your Honor, I know you have -- this Court has declared to what is it, but even here, even in this Court, when you allowed a man to file in a pauper (Inaudible), is he a true pauper?

A true pauper I suggest to this Court without aid without assistance of some kind cannot get into this Court, because you demand of course that he file some written, typewritten pleading.

He must have something here must he not?

Justice John M. Harlan: (Inaudible)

Mr. Harry C. Schoettmer: No.

But every convict in Ohio, I suggest has money.

Chief Justice Earl Warren: Every what?

Mr. Harry C. Schoettmer: Every convict in Ohio has money.

Chief Justice Earl Warren: Do you pay him for work in Ohio?

Mr. Harry C. Schoettmer: We do.

Chief Justice Earl Warren: What, how much per day?

How many days would he have to work to earn $20?

Mr. Harry C. Schoettmer: I would say about three months.

Chief Justice Earl Warren: Three months?

Mr. Harry C. Schoettmer: He gets about -- a single man in Ohio, this is Revised Code 514516, a single person who is a convict in Ohio gets $0.04 an hour.

Chief Justice Earl Warren: You mean --

Mr. Harry C. Schoettmer: Nine hour day.

Justice Felix Frankfurter: Automatically?

Mr. Harry C. Schoettmer: Automatically, that's by statute.

Justice Felix Frankfurter: But not -- he doesn't get anything for extra -- you haven't got occupational labors for --

Mr. Harry C. Schoettmer: No we do not Your Honor, we do not.

But if he has --

Chief Justice Earl Warren: But I supposedly if he had money the warden would know it, wouldn't he?

Mr. Harry C. Schoettmer: Without question, the warden has to account to it.

Chief Justice Earl Warren: You make no question, you raise no question as to whether he is a pauper or not in your papers, as I read them, as a fact I thought Mr. Vance conceded it, said he is wholly without funds now.

Mr. Harry C. Schoettmer: The problem -- all right sorry Your Honor, the problem comes out is who has to determine he is a pauper.

He signs an affidavit, and I'm sure the law is fairly general concerning men with these criminal records, should we believe them right off, should the state go out and examine what his accounts are --

Justice Felix Frankfurter: (Inaudible) very different question, that question comes up all the time in the federal court, and even in this Court.

We have applications here asking for relief (Inaudible) and it has (Inaudible) but that isn't the problem in this case is it?

Your problem is what Mr. Justice Harlan suggested, that the instances in which make men really want to appeal to your Supreme Court for another review, haven't got the necessary $20, it's so insignificant, so unreal a limitation upon the power of getting hearing from that Court, that the legislature or the judiciary has the right to make that decision.

That's what this case turns on?

Mr. Harry C. Schoettmer: That's right.

Now the question is if a man has an honest appeal, can he somewhere sometime in his course of conduct after his appeal by the appellant court, get $20?

We maintain that this $20, if you please as set forth by the Court, is one of those reasons, one of those manners, one of those means that the Court uses to stop frivolous appeals, to stop men who were just -- fought the Court to come in and talk to it.

Chief Justice Earl Warren: Well, I didn't know, I didn't know that you had raised that in your briefs or below.

As I understood, the state does not assert the petitioner's allegation of poverty is in bad faith.

If you've briefed that question in your brief please call my attention to it.

Mr. Harry C. Schoettmer: You Honor it has not been, and for this reason --

Chief Justice Earl Warren: And on the contrary haven't you conceded that it's not done that in bad faith.

Mr. Harry C. Schoettmer: In effect on the application for writ of certiorari, we --

Chief Justice Earl Warren: Well that's why you raise it here.

Mr. Harry C. Schoettmer: We should have raised it at that point and I had in a note here, to have raised it at that time and it was not raised when the application for writ was granted by the Court.

Chief Justice Earl Warren: Can you concede at one time and then rely on it later?

Mr. Harry C. Schoettmer: I assume not Your Honor, but I'm only trying to put forth the type of case as this, that this is an important --

Chief Justice Earl Warren: We're not interested in the type of case, we're interested in this particular case right here.

Mr. Harry C. Schoettmer: This particular defendant then.

Chief Justice Earl Warren: Yes.

Mr. Harry C. Schoettmer: This is what we're interested in and we think that our decision by this Court, that would go along the line and extend the Griffin case for this defendant is unfortunate, for this reason, already this Court has had the merits, the factual matter of the case before it, in the form of the codefendant who had paid his $20 and who did file application of writ of certiorari to this Court on the merits of the case itself.

Justice John M. Harlan: What case is that?

Mr. Harry C. Schoettmer: That's was the Lotts case Your Honor.

It was -- I have a note on it.

Lotts versus State of Ohio, certiorari denied December 15, 1958, Supreme Court report, 115 volume 79 number 5 miscellaneous docket 482 are the numbers that I have.

Justice William J. Brennan: Were they tried together?

Mr. Harry C. Schoettmer: Yes Your Honor, all the way they were jointly tired together.

Justice William J. Brennan: What was this robbery or what?

Mr. Harry C. Schoettmer: It was burglary of an inhabitant dwelling and which carries of course a life sentence when no mercy is extended by the jury.

Second county indictment was grant larceny in the matter of stealing.

Justice John M. Harlan: (Inaudible) that Lotts case where your court --

Mr. Harry C. Schoettmer: There was Your Honor.

Justice John M. Harlan: There was?

Mr. Harry C. Schoettmer: Yes.

Justice John M. Harlan: (Inaudible)

Justice Hugo L. Black: If $20 is so small, that to be ignored what about 50 (Inaudible)

Mr. Harry C. Schoettmer: Well –

Justice Hugo L. Black: Where would you go with that?

Mr. Harry C. Schoettmer: Whatever is reasonable Your Honor and each case must stand on its merits as to what is the reasonable.

Now in this case we have $20.

We maintain that $20 is reasonable.

The $20 --

Justice Hugo L. Black: Under any circumstances (Inaudible), you maintain --

Mr. Harry C. Schoettmer: Yes Your Honor.

Justice Hugo L. Black: -- $20 just be ignored?

Mr. Harry C. Schoettmer: In the year 1959 we cannot conceive of a position where a defendant is in such circumstances that if he is -- wants to make a good honest appeal, it is not privilege, it is not flaunting the Court that he somewhere cannot pay his $20 fee.

Justice Hugo L. Black: Through (Inaudible) in the United States.

Mr. Harry C. Schoettmer: I suppose the truth Your Honor.

I think we have to look as to whether it's reasonable or not and Justice Frankfurter made this statement in the Griffin case, he said something to this effect.

In order for -- to avoid or immunize abuse and waste a state may appropriately hedge, not only gives leave for -- about the opportunity to prove a conviction wrong.

When a state not only gives leave for appellate correction of trial errors, but must pay for the cost of its exercise by the indigent, it may protect itself so that frivolous appeals are not subsidized and pubic money is not needlessly spent.

Chief Justice Earl Warren: Well is that such a small amount that it doesn't -- that it shouldn't preclude any indigent from paying it, why would it be such a burden on the state to waive it?

Mr. Harry C. Schoettmer: Well, because it fellows like Burns Your Honor, remember this is a deputy sheriff.

I know it's not the record, but we are talking about Burns and who he is and what he has done since he has been in the penitentiary.

Chief Justice Earl Warren: That isn't hardly in the case as I see it.

I thought you were talking about people here and not --

Mr. Harry C. Schoettmer: We are.

Chief Justice Earl Warren: -- and not about a person, I don't find anything in the record on that, but what is the answer to that question?

Now I can see where it's quiet a burden on the state or at least on some state, where you have a trial that involves 2,000 or 3,000 or 4,000 pages of testimony that require them, require the state to pay for that transcript, that's quite an amount of money, but if as you say, any indigent in prison or in America, could if he wanted to pay $20 for access to your Supreme Court, why it would be such a burden on the state to waive that fee when in order to give indigents exactly the same standing before the courts to people with money.

Mr. Harry C. Schoettmer: Your Honor as a matter of fact it undoubtedly would not be a burden upon the State of Ohio to waive this $20 filing fee.

Chief Justice Earl Warren: Well then why it is such an important issue here?

Mr. Harry C. Schoettmer: Well, only because we feel that first of all this man has had his appeal, that the Griffin rule should not be extended, that the Supreme Court of Ohio should have the right to say what are the reasonable necessary procedures and we feel that it is the prerogative of that court to determine its procedural development and we're confident that this Court would say that any reasonable procedure that Supreme Court says it must have is perfectly all right.

We're trying to suggest this Court --

Chief Justice Earl Warren: I think no one would disagree with you, if you said that everybody could have but one appeal in the Ohio and that, that stopped right there at the Court of Appeals, but when you prescribe another procedure, above that whereby people who have means can have access to the Supreme Court, but through which indigents can have no access, then it seems to me you've got an entirely different problem.

Mr. Harry C. Schoettmer: Well, of course we have to take a position that there -- as to the $20 filing fee and honest appellants, ones who want to be heard, because they have an honest conviction in their rights and in the errors that were committed against them, we feel that there is no such thing as an indigent with less than $20.

Chief Justice Earl Warren: So you think it is just a per se case?

Mr. Harry C. Schoettmer: That has to be our position.

Justice Felix Frankfurter: I have now read the two Wanamaker cases and it doesn't help me in the slightest with my problem (Inaudible).

The first Wanamaker case says that a lower court can't mandamus the clerk of the Supreme Court, and tell that clerk what did you do with reference to matters before that court, (Inaudible).

And the second Wanamaker case simply would be the general rule that involved this problem at all, that the clerk has always the duty of seeing that the formal requirements are satisfying and he can't pass on the merits of a mandamus, any connection with that and we should think that it's properly prepared or accompanied by regular filing fee, that doesn't deal with my problem at all whether action could be added to the Court, so that the court when it held to waive its requirement of fee, will respond, and not the clerk in giving the general rule, he is just (Inaudible) in that regard.

Mr. Harry C. Schoettmer: That's correct Your Honor.

Justice Felix Frankfurter: The appellant in those two cases, with all due respect to Mrs. Washington, you shed no light on my problem at all.

Justice Tom C. Clark: May I ask you on the second one, how did first -- how did Wanamaker there get notice of the Supreme Court has been held for mandamus against the clerk.

Mr. Harry C. Schoettmer: I don't know that Your Honor.

Justice Tom C. Clark: Exhibit B I think shows you did it by (Inaudible).

Did they decline, did the Supreme Court decline the issues of mandamus for clerk?

Mr. Harry C. Schoettmer: I think the Court said –

Justice Felix Frankfurter: (Inaudible)

Mr. Harry C. Schoettmer: Yes and then the Supreme Court stepped aside and reversed it, I believe that was right, isn't that right judge?

As I recall the case.

Justice Tom C. Clark: It came up here to us, that he asked us to reverse their refusal, to give him a mandamus.

Mr. Harry C. Schoettmer: Yes he did, I believe he denied it Your Honor.

The only point in that case, that I said what I did was this, that I believe the Court goes on to say that the clerk must do whatever the Supreme Court says it must do as a robot, as an (Inaudible).

If he accepts the paper incorrectly against the orders of the Court then he should -- the Court will fire him.

If he refuses to accept papers, and the Court will have to handle him in its own course as it sees fit because it is -- he is its robot.

Now because the clerk turns down the applicant, therefore it is apparently the order of the Court that he do so.

That's what I meant Your Honor.

Chief Justice Earl Warren: Mrs. Washington.

Rebuttal of Helen G. Washington

Ms Helen G. Washington: I don't know whether I ought to get into this view of counsel's concession that the letter of the clerk should be treated as the judgment of the Court.

But the Wanamaker case, if they -- that when the clerk carries out the instructions of the Court he is acting for the Court, and in this case the clerk was carrying out the instructions of the Court, the letter say so --

Justice Felix Frankfurter: How you know, how do I know?

Ms Helen G. Washington: His letter says so.

Justice Felix Frankfurter: He simply says this is the regular thing, that you require a filing fee, but the specific problem whether a specific appeal, it then raises the general question whereby a court could say, is it a new problem for us hereafter to indigently establish, he weighs this, was not before the Wanamaker Court and is not to be inferred from the clerk's letter, it is just telling a routine order of (Inaudible)

Ms Helen G. Washington: Well, the clerk's letter does indicate that the Court has ruled on this question and that he is following that ruling, at least that is my interpretation of it, and I think for practical purposes it has to be treated as the order or the judgment of the Court.

Chief Justice Earl Warren: Mrs. Washington before you sit down I would like to express the appreciation of the Court to you for assuming this responsibility of defending this indigent prisoner.

We are always comforted by the fact that members of our bar are willing to do that as a public service and we feel very much indebted to you.

And gentlemen may I say that we appreciate the prudent manner in which you have represented the State of Ohio and also for your very extreme frankness that you have displayed in this case and that of course without regard to decision in this case, very well.

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