' f CAUSES OF POPULAR DISSATISFACTION WITH
THE ADMINISTRATION OF JUSTICE
HEARING
BEFORE THE
SUBCOMMITTEE ON
CONSTITUTIONAL EIGHTS
OP THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-FOURTH CONGRESS
SECOND SESSION
MAY 19, 1976
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
72-948 O WASHINGTON : 1976
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington. D.C. 20402 - Price $1.40
earchl franklin pierce law center
rorw Concord, New Hampshire 03301
ON DEPOSIT AU6 1 9 1976
4; avrJHJ f*/ *r
/ CAUSES OF POPULAR DISSATISFACTION WITH
THE ADMINISTRATION OF JUSTICE
HEARING
BEFORE THE
SUBCOMMITTEE ON
CONSTITUTIONAL RIGHTS
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-FOURTH CONGRESS
SECOND SESSION
MAY 19, 1976
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
72-948 0 WASHINGTON : 1976
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 - Price $1.40
FRANKLIN PIERCE LAW CENTER
Concord, New Hampshire 03301
Boston P-sblic Library
Boston. ?m 02116
COMMITTEE ON THE JUDICIARY
JAMES O. EASTLAND, Mississippi, Chairman
JOHN L. McCLELLAN, Arkansas ROMAN L. HRUSKA, Nebraska
PHILIP A. HART, Michigan HIRAM L. FONG, Hawaii
EDWARD M. KENNEDY, Massachusetts HUGH SCOTT, Pennsylvania
BIRCH BAYH, Indiana STROM THURMOND, South Carolina
QUENTIN N. BURDICK, North Dakota CHARLES McC. MATHIAS, Jr., Maryland
ROBERT C. B YRD, West Virginia WILLIAM L. SCOTT, Virginia
JOHN V. TUNNEY, California
JAMES ABOUREZK, South Dakota
Subcommittee on Constitutional Rights
JOHN V. TUNNEY, California, Chairman
JOHN L. McCLELLAN, Arkansas HUGH SCOTT, Pennsylvania
EDWARD M. KENNEDY, Massachusetts ROMAN L. HRUSKA, Nebraska
BIRCH BAYH, Indiana HIRAM L. FONG, Hawaii
PHILIP A. HART, Michigan STROM THURMOND, South Carolina
JAMES ABOUREZK, South Dakota
Jane L. Frank, Chief Counsel and Staff Director
Douglass Lea, Counsel
Lydia Grieg, Chief Clerk
(ID
CONTENTS
HEARING DAY
Page
Wednesday, May 19, 1976 1
OPENING STATEMENT
Tunney, Hon. John V., U.S. Senator from California, chairman, Sub-
committee on Constitutional Rights 1
WITNESSES
Bond, Hon. Julian, Georgia State senator 29
Davidson, James Dale, executive director, National Taxpayers Union 53
Davis, Edward Charles III, respondent in Paul vs. Davis 5
Ehrlich, Thomas, president, Legal Services Corporation 18
Field, Thomas F., executive director, Tax Analysts and Advocates 48
Karpatkin, Rhoda H., executive director, Consumers Union 35
Lewis, John, executive director, Voter Education Project 32
Neier, Aryeh, executive director, American Civil Liberties Union 58
Neuborne, Burt, professor of law, New York University, former assistant
legal director, American Civil Liberties Union 60
PREPARED STATEMENTS
Bond, Hon. Julian, State senator from Georgia 31
Davidson, James Dale, executive director, National Taxpayers Union 57
Field, Thomas F., executive director, Tax Analysts and Advocates 51
Karpatkin, Rhoda H., executive director, Consumers Union of United
States, Inc 42
Neier, Aryeh, executive director, American Civil Liberties Union 64
Neuborne, Burt, professor of law, New York University, former assistant
legal director, American Civil Liberties Union 64
ADDITIONAL MATERIAL
Chiefs of police flyer, Jefferson County and City of Louisville Police De-
partments, Louisville, Kentucky 12
Jones, Frank N., executive director, National Legal Aid and Defender
Association 23
Prepared statement by the National Clients Council 21
APPENDIX
Assembly Bill No. 3704, California legislature, introduced by Assemblyman
Knox," Mar. 15, 1976 72
Letter from Richard A. Givens, regional director, Federal Trade Com-
mission, New York Regional Office, to Senator John V. Tunney 121
Letter from Francis M. Wheat, president, Los Angeles County Bar Associa-
tion, to Senator John V. Tunney, chairman, Subcommittee on Con-
stitutional Rights 71
Newspaper article from the Christian Science Monitor, "Cutting Access
to the Courts," by Mark G. Yudof, professor of law, University of
Texas, Austin, Texas, Apr. 14, 1976 114
Remarks to participants in the "Pound Revisited" Conference 115
Remarks of Charles R. Halpern, executive director, Council for Public
Interest Law 116
Statement of the American Judicature Society 120
(Hi)
CAUSES OF POPULAR DISSATISFACTION WITH THE
ADMINISTRATION OF JUSTICE
WEDNESDAY, MAY 19, 1976
U.S. Senate,
Subcommittee on Constitutional Rights,
of the Committee on the Judiciary,
Washington, D.C.
The subcommittee met, pursuant to notice, at 9:30 a.m., in room
357, Russell Senate Office Building, Senator John V. Tunne}r (chair-
man of the subcommittee), presiding.
Present: Senator Tunney.
Also present: Jane L. Frank, chief counsel; Douglass Lea, counsel.
OPENING STATEMENT OF HON. JOHN V. TUNNEY, A U.S. SENATOR
FROM THE STATE OF CALIFORNIA ; CHAIRMAN, SUBCOMMITTEE
ON CONSTITUTIONAL RIGHTS
Senator Tunney. Today's hearing borrows its theme from a speech
delivered 70 years ago by a young Nebraska lawyer named Roscoe
Pound .
Pound startled the organized bar of his day by assessing the causes
of popular dissatisfaction with the administration of justice.
His was a broad-ranging analysis — some of it focused on general
considerations about the role of law, some on the idiosyncracies of the
Anglo-American system, some on judicial organization and procedure,
and some on judicial administration.
Many of his observations still hold true — for example, his comment
on the strains caused by using the law to resolve great moral questions
and his observation that, in Anglo-American jurisprudence, there is a
conflict between the individualized treatment of specific cases in the
common law and the collective orientation of other means of making
public policy.
And yet our era differs considerably from the first decade of this
century. When Pound spoke in 1906, blacks could not belong to the
organized bar; women could not vote; workers and many other
interests were scarcely enfranchised.
Thus, today's hearing is designed to reconsider Mr. Pound's re-
marks and reassess the situation for 1976.
Some of this work was begun earlier this year at a conference in
St. Paul, Minnesota, jointly sponsored by the Judicial Conference of
the United States, the Conference of Chief Justices, and the American
Bar Association.
(1)
In St. Paul, the Chief Justice, Attorney General and several hun-
dred judges and lawyers discussed ways to ease the caseload in the
courts, especially the Federal courts.
They failed to discuss the broader issues about access to the justice
system — issues central to Dean Pound's remarks of 70 years ago.
And, with the exception of a handful of invited guests, they failed
to include the people — the users or would-be users of the justice
system.
Indeed the St. Paul conference would have been better titled "The
Judicial Causes of Dissatisfaction with the Populus."
Today's hearing is specifically designed to ask the broader questions.
We are exploring why so many Americans — consumers, taxpayers,
minorities, women, civil libertarians — are dissatisfied with the justice
system, and what the Congress ought to do about it.
My indepth study of these issues began 3 years ago when my
Subcommittee on Representation of Citizen Interests (now merged
with this subcommittee) held extensive hearings on the adequacy of
legal representation.
Because of that inquiry, I have some views which, I predict, many
of today's witnesses share.
First, what are the causes of dissatisfaction?
To begin with, Federal and State courts are overcrowded and the
costs of litigation are astronomical. Interminable delays result from
seemingly meaningless procedures. Once in the courtroom, litigants
are treated on an assembly-line basis, by arrogant and insensitive
court personnel.
Beyond the courts, most of the other parts of the justice system
are also unresponsive: Lawyers, a necessary ingredient to any court
case, are generally inaccessible and too expensive for average citizens;
laws and regulations are too complicated to understand and often
unenforced; and Government departments and agencies are mired in
red tape.
Moreover, recent Supreme Court decisions have made the Federal
courts less accessible to the ordinary citizen and have substantially
curtailed their ability to vindicate basic constitutional rights.
In Eisen v. Carlisle, the Court severely restricted the ability of
small claimants to secure effective relief through class action suits.
By requiring these claimants to incur the massive costs involved in
notifying each and every individual who might have a similar legal
claim, the effectiveness of the class action as a vehicle for securing
judicial attention to the rights of the consumer has been severely
eroded.
In Warth v. Seldin, the Court set a "standing" requirement so
stringent that it left victims of discriminatory zoning ordinances
virtually without recourse in Federal Court. The Court dismissed the
complaint of inner city minority residents, arguing that the damage
suffered by their exclusion from suburban communities was too re-
mote to warrant the Court's consideration.
And in Doe v. Virginia, the Court "summarily affirmed" a 200-
year-old State statute forbidding private homosexual acts. Without
ever hearing arguments, the Court, in effect, has made a dramatic
and powerful decision that dangerously encroaches upon the cherished
right of privacy.
In other cases, where the Court has consented to review the merits
of an individual's constitutional claim, substantive rulings have set
a precedent which threatens to restrict severely the individual's
access to judicial review.
In Paul v. Davis, for example, the Court took a very narrow view
of the due process clause's reach over State activities, holding that it
was exclusively limited to cases where individuals could show that
State activity directly restricted their liberty or property rights.
Under this standard, the complainant, who will testify today, was
given no redress from a police practice of publicly-circulating lists of
accused shoplifters who had never been convicted in a court of law.
Finally, in United States v. Miller, the Court shrunk the legally
protected scope of an individual's expectation of privacy in regard
to his own personal papers. Now, once people have transmitted their
bank statement to a financial institution, they have forfeited their
fourth amendment protection. They take the full brunt of the risk
that the third party may transfer this information to the Government.
The Court's opinion is all the more startling since the California
Supreme Court, in an eloquent opinion by Justice Mosk, had unan-
imously concluded that individuals should have access to the courts
to challenge a subpena of their bank records and their admissibility
at trial.
These recent decisions have contributed to widespread cynicism
and alienation from the justice system.
I recall that one witness at my earlier hearings on lawyers said,
"the system works against me, not for me." No doubt, we'll hear more
of that today.
What are some remedies, and, particularly, what should the
Congress do?
Above all, we must retool, and, where necessary, redesign the justice
system so it cares about people.
With respect to court congestion, we need more and better-trained
court personnel.
We also must expand alternative dispute resolution mechanisms.
Some needed changes involved the adversary process and lawyers.
Others include experiments with "no-fault" settlements and with
informal proceedings without lawyers.
In this respect, I fundamentally disagree with the views of Solicitor
General Bork at the recent St. Paul Conference. He said that litigation
resulting from social welfare legislation was "legal trivia" and ought
to be removed from the Federal courts.
In my view, no cause involving fundamental human rights should
be removed from the courts unless and until alternative processes
are fully operating and in place.
We also need to make legal services more available. Low-cost
mechanisms to deliver legal services must be encouraged, including
legal clinics, prepaid legal plans, and paralegals.
More information must be made available about what lawyers do,
where they are, and what they cost. I am delighted that the California
State bar and several others have commenced some experiments with
advertising to let people know more about lawyers.
More must be done to simplify the legal system: to adopt model
probate codes, and other kinds of standardized forms and remedies.
I favor no-fault auto accident insurance.
The Congress must prod the legal profession to serve more people,
and increase funding and other incentives for civil and criminal legal
services for the poor and middle-income groups.
It must also play an active role with respect to some of the recent
Supreme Court rulings: To facilitate the bringing of consumer class
actions; to relax standing requirements; to authorize courts to award
attorneys' fees to prevailing parties in public interest litigation; to
require the updating of inaccurate arrest information, and to protect
the privacy of personal bank records.
I have authored or supported legislation on most of these subjects,
and am fighting to enact these bills into law.
In sum, today's hearing is very important. It should serve to focus
more public attention on the enormity and gravity of the issues.
In our justice system, people must come first.
The subcommittee spent a good deal of time assemblying our
witnesses for today, and I am very pleased that everyone could come.
No group is better qualified to address these issues.
Our first witness is the respondent in a recent Supreme Court
decision that, in my opinion, has a devastating impact on our con-
stitutional protections.
The second witness is president of the major Federal program to
provide legal services to the poor in civil matters.
Our third is a State senator, long active in civil rights issues, who
will be accompanied by two lawyers who, to my knowledge, are the
best known litigators in the Nation for the rights of minorities.
Our fourth witness runs the Nation's largest consumer organization
and herself has litigated many of these issues.
The next witnesses run two different taxpayer organizations, both
involved in court action on behalf of taxpayers.
Our final witness, a frequent guest at subcommittee hearings, is
the executive director of the ACLU, which has brought most of the
landmark constitutional challenges in this century.
I have read the prepared statements, and I am impressed with their
high quality. The agenda for the Congress is a long one, and we are
taking a major step today.
I would like to point out that in as much as we have six witnesses,
we are going to have to stay within rigid time limitations; otherwise
we will not be able to get through the agenda. We are going to have to
have about 25 minutes per witness. There are questions that I would
like to ask the witnesses, and if the witness cares to be asked questions
then I would ask for an abbreviated reading of the prepared statement,
which will be incorporated in the record as if read. If the witness
decides that he wants to read the entire statement then there will be
less time for questioning. I am going to stick rigidly to the 25-minute
rule for all witnesses.
Our first witness is Edward Charles Davis, who is respondent in
Paul v. Davis, and who is accompanied by Daniel T. Taylor.
Thank you for being with us. Please proceed.
TESTIMONY OF EDWARD CHARLES DAVIS, RESPONDENT IN
PAUL v. DAVIS
Mr. Davis. How the police departments and police chiefs publish-
ing and circulation of an active shoplifter's notice branding me as a
convicted criminal, and also an active shoplifter, has affected my
personal life.
On June 14, 1971 while leaving a Louisville retail store, I was
detained by a security guard and accused of stealing something from
the store or "looking like I should have." Following a police court
hearing, the case was dismissed.
Shortly thereafter my name and picture appeared in a police
department notice listing me as a "known active shoplifter." This
action on the part of the police has caused me irreplaceable damage to
my good reputation, which I have worked hard for over the years.
The reason I say I have worked hard for my good reputation is because
of my social and economic position in this country. My reputation is
something that does not come automatically. In my experience, the
negative of me is assumed by the general American public, especially
white America. The listing of my name and photo in a publication
circulated among businesses in Louisville has been punishment for a
crime I never committed.
This action on the part of local police has resulted in untold humilia-
tion and embarrassment to me by, my family, associates, and profes-
sional colleagues, especially at the then place of employment, the
Courier- Journal and Louisville Times photographic department.
Shortly following the publication, my department head, executive
director of photography, called me into his office and informed me
that two of the members of the staff had saw the active shoplifter's
notice and that I was listed on the notice by the Louisville Police
Department, and that if I was arrested for any reason whatsoever I
would be fired.
At that time my department head also informed me that the shop-
lifting notice would impair my ability to perform my photographic
duties; he felt that the company could not feel free to send me on any
assignments that would require me to come in contact with local
retail stores.
Unfortunately, it did not take long for everyone in the department
to know that I was on an active shoplifters' list, and at that time I was
the only black working in the department, which made it extremely
difficult for me to function. I suffered untold humiliation and ridicule
from members of my department. After 6 or 7 months the pressures
on the job and strain on m}r nerves got to the point where I felt
the only way out was for me to resign in order to regain back my
full sanity and what little self-respect I had left. I used the excuse of
continuing my education as the reason for my resignation. It was
difficult enough being the only black photographer at the Courier-
Journal and Louisville Times, but virtually impossible for me to
function with the abuse from the general public and the unique
situations I was placed in as a news photographer.
Even after everyone learned that I was unjustly placed on the
shoplifting notice, the jokes and questions still persisted and I kept
finding myself in extremely embarrassing positions due to my job,
and the people I come in contact with. For an example, one em-
barrassing incident was when an acquaintance of mine called the owner
of the newspaper and accused me of detaining him so that someone
could break into his house and steal his personal possessions, a ridic-
ulous accusation, made believable only by the shoplifters' publica-
tion. The only reason why I had any dealings with this person who
made this accusation against me is because he asked if I would make a
picture for him to go on his. campaign poster as a favor for him.
After communicating with this person after he had made these ac-
cusations to the owner of the company, he gave me reason to believe
that he was motivated to accuse me because of a direct result of the
shoplifters' notice. Since then I was cleared of the accusation by
police detectives, which in their opinion found the whole incident
bizarre. I was informed of the phone call made by this man by my
department head, who also informed me that I must be cleared by
the police of this accusation made against me. Here, too, exemplifies
the extent of the assumption of guilt by the department head.
I found myself not doing simple things, like not going downtown,
not wanting to go shopping with friends. The publicity surrounding
my case and my decision to seek help through the justice system also
created unwarranted humiliation to myself and my immediate family.
After finally leaving my place of employment I found it difficult to
find jobs in my expertise, because the newspaper that I was em-
ployed with was the only daily in town, and perspective employers
in other lines of work were reluctant to hire me because of the publicity
and implications of the police department's publication.
The publicity surrounding my case and my decision to seek help
through the judicial system also created unwarranted humiliation
to myself and my immediate family.
Now 5 years later after trying to clear my name through this
country's judicial system I am broke, without employment, emo-
tionally sick and in a state of anxiety. In my experience, the inability
of the court system, the people who operate it, the political and
economic environment as it presently exists has made a mockery of
justice.
Being black in this society has all too often been considered a crime
in itself, especially^ when attempting to get a piece of the American
pie. In seeking some sort of legal compensation "the right way"
through the courts, I find myself, a young black person, totally dis-
illusioned with American society, its judicial system and its political
and economic system, a system that tells the rest of the world its
way is best.
f have neither the financial nor the emotional drive to continue
fighting with this system any longer. And I ask, should I have to?
If I was a well-known white middle-class salesman of high standing
in the community in which I worked do you think this police publica-
tion would affect my earning ability?
To this day I have no criminal record. I am wondering what the
final judgment on my case would have been if nry last name was
Firestone.
I say to you, this police action is claiming to the Louisville com-
munity that I am an active criminal and a convicted one.
Have I done anything to merit punishment by the State without
due process?
Can you make the presumption of innocence after viewing the active
shoplifters' notice?
If a person's good reputation is of worth, why is mine taken away
without due process of law, especially when it has been done by State
officials?
Why should I be punished by the State without due process of law?
I say to you, it was not mere defamation but an official branding
as a criminal without due process of law by the State. The State has
condemned me, an innocent law-abiding citizen, as a criminal. Arrest
is guilt of a crime in most minds.
The Supreme Court tells me to go back to the State where I got
screwed the first time and more than likely will get screwed again. I
find myself caught in the middle of a corrupt and inadequate judicial
system on one side and with police officers with broad discretion a^
powers on the other; damned if I do, damned if I don't.
Must I leave it up to the criminal to right his wrong?
The Supreme Court ruling on my case has confirmed what the
brother on the corner has always been telling me in a roundabout
way about this system, that for the black man that gets caught up in
the system, having no political and economic power or stake in the
system, had better step lightly because the system can and will crush
him at will.
Richard Nixon appointed four Supreme Court Justices, and they
all voted against me. One day I would like to appoint four Supreme
Court Justices, all from different geographic locations, all seeing things
the way I do.
Here I sit, born with a social stigma, being black, and the stigma
attached to it and its negative stereotypes, and I work to reverse it.
What gains I have made the State has taken away intentionally,
without regard for due process of law; no accident. I am suffering
from the act of official tyranny.
Have I the right of privacy, the right to due process of law, the right
to the assumption of innocence?
If a publication of this active criminals list was to aid only mer-
chants, businessmen and their security police, how did two of the
Courier-Journal and Louisville Times staff photographers get hold
of it?
How could my department head go to a store and see it?
How was I able to go to the police department at three different
times with three different excuses for having a need for this publica-
tion and receive it? None of us are merchants or security officers.
I have suffered grievous mental anguish, summary punishment, I,
an innocent person. The past cannot be relieved or revised, reversed
or relived. I have suffered injustices in the lowest courts in the land;
now I must suffer the ultimate alienation in the Bicentennial year of
this country by way of the Supreme Court, but then again, I have
always been made to feel like an alien in my own country, even in
early childhood.
Injustice and alienation is nothing new for me, other members of
my family, and friends. When I was young my father, Edward Y.
Davis, Jr., was forced to sell four lots to the State for $300. The $300
did not equal the amount he paid in taxes for the lots.
8
Some years later he was forced: to sell Kis property to Urban Re-
newal in which the nonblack owners with property of similar size and
value were paid twice the amount he received. About 10 years later
my father had property auctioned off by the State; $17,000 was
invested in the building, the building was sold for $1,999 just to pay
off a $2,000 lumber bill that was past due.
Another one of my later experiences was when driving a newly
purchased used car I was stopped, arrested, handcuffed, waited an
hour and a half for a tow truck to tow my car in, then rushed off to
jail with excessive speed, all because of a recently expired license plate.
I asked a friend of mine, who is a police court judge, if the officers
actions were routine. He told me, "It is routine for that to happen
in your part of town if you are black, but normally officers give traffic
citations for the offense. It is left to the discretion of the police officers
to issue a citation or arrest you. It probably would not have happened
if you were on the other side of town and were white middle-class."
One of my many experiences.
Another one of my alltime greats was the time when I was garnisheed
for $90 without due process of law. I was garnisheed and the $90 was
deducted out of my check. I went to court and asked the judge why
this happened. He said I was summoned to appear in court and did
not. I protested to the judge. He then showed me where I signed a
proof of service. It was proven in fact to be a forged signature signed
"Eddie Davis." I told the judge I never signed any business sig-
natures "Eddie Davis," only "Edward C Davis III." This gave me
a suspicion to believe that someone who knew of me forged the
signature thinking I go by what my friends know me as. The bailiff
testified under oath that I was not the person served. The summons
named me as Edward C. Davis III and not Eddie Davis. The judge
refused to return my money, but I finally got my day in court. To
make a long story short, a car dealer got my $90 claiming I owed a $90
bill for work he thought was done on my car, and the proof of that
thought to be done work was the testimony of an auto estimator
who admitted he did not see any work done on the car or did any
himself. He was only told it was and had a bill unsigned with a de-
scription of my car and my name.
One of the greatest legal tragedies I have witnessed was the sen-
tencing of 4% years given my attorney, Daniel T. Taylor III, who
sits beside me, without due process of law for contempt. The only
crime I could see him guilty of was defending his client and trying to
make the system work for the socially and economically disadvantaged,
confronting judges that are tyrants carried in the hip pockets of
businessmen does take a toll.
In conclusion, the only thing Congess can do for me personally is
to give me economic justice. I do not mean food stamps or extended
unemployment benefits; I need a stake of the system, a piece of the
rock; for example, a bank, factory, company, the means to produce a
self-sufficient place in this society. Then I could move in the neighbor-
hood of the judge. Maybe he would get to know me. He may even see
that I am a human, a citizen, and not an alien in this country. He
might even change his attitude and have true feelings for justice.
Why can't blacks melt in the melting pot?
On May 19, 1976, I am still an alien in my own country, the country
of my father. He was alienated, too.
9
Thank you.
Senator Tunney. Thank you, Mr. Davis.
The story that you tell is a very compelling one. The outrage of
having your picture and name published and then disseminated
throughout the community is one that can only be truly compre-
hended when we listen to you testify as to how it has affected your
life
The Supreme Court, in overturning the circuit court's decision in
your case used, what I am sure to you, is a meaningless technicality:
that you should have sought relief in the State courts. Recognizing
this, I would still like to be able to ask you why you have not sought
such relief in the State courts. Is it just that you are emotionally,
spiritually worn out? Or is it the present financial burden of seeking
such relief? What are the reasons that made you decide not to go to
the State courts?
Mr. Davis. I think my attorney should answer that question.
Senator Tunney. Okay.
Mr. Taylor. We have in our State what is called a statute of limi-
tations, which, of course is universal in any jurisdiction, so Mr. Davis
and myself and his other council had to opt at the time, to borrow
and appreciate your word, at the time of the outrage we had to opt
which forum to move in. We are foreclosed from further relief. To use a
phrase, we are sitting there with egg on our face, as it were. There is
no way we can get back in State court. It is somewhat similar to the
case of a couple of weeks ago, again, an action in Federal court of
deprivation of constitutional rights where the Burger Court said that
you move too late or — once again we have the old form instead of sub-
stance thing, but to make it short, we are foreclosed at this time. We
put our reliance in the Federal system, Senator.
Senator Tunney. I assume that the Supreme Court knew that you
were foreclosed?
Mr. Taylor. Senator, I do not know what their familarity is with
the law after that decision.
Senator Tunney. Did you indicate in your brief that you were
foreclosed from going into the State court?
Mr. Taylor. In honesty with you, we did not think that the case
should or would conceivably turn out — we did try to anticipate what
technicality they might proceed to, I think, avoid their responsibility
in the matter, and we could talk more in terms of showing a compelling
interest in immunity of judicial leaders and the office and that type of
thing.
Senator Tunney. What about the future; will the arrest record ever
be expunged?
Mr. Taylor. Senator, the case, if you please, the hearing, you
might say, the ongoing program in conjunction with the ACLU and
the other organization would have been to move in this area from
success in Mr. Davis' case, which we were very hopeful for, and then
into any expungement action which the prior court — and, of course, I
make the contrast between the Warren Court and the Burger Court,
which the prior court had given some sort of signal could be coming.
Senator Tunney. Has this shoplifters' notice been updated?
Has it been circulated in other jurisdictions?
Mr. Davis. Not to my knowledge.
10
Senator Tunney. Most employment application forms ask whether
the applicant has ever been arrested.
Do you believe if you answered truthfully that your chances for
employment would be prejudiced in the future?
Mr. Davis. Yes. Definitely.
Senator Tunney. Have you made any plans regarding your future?
Mr. Davis. I am still seeking employment. I will probably finish
up college and I might possibly even move out of town.
Senator Tunney. You mentioned the harassment and pressure that
was brought to bear on you by your coworkers, about the fact that
you had this record.
Did you at any time see the police chief and ask him to remove
your name from the list?
Mr. Davis. It wouldn't have done any good. I mean, the flier had
already been circulated; the damage was done.
Oh, we did seek an injunction, and we did not get it.
Senator Tunney. And you did not get it?
Mr. Davis. Did not get it.
Senator Tunney. Was that in the State court?
Mr. Taylor. It was in the Federal Court. It was the Christmas
season and we sought to block the dissemination, and failed totally in
the district court, which, of course, threw us out. It was the Sixth
Circuit that sent us back to an evidentiary hearing, and from there to
the Supreme Court.
Senator Tunney. I see. To read from the chief of police's flier,
which will be incorporated as a part of the record: "These persons
have been arrested during 1971-72 or have been active in various
criminal fields in high density shopping areas." Of course, that is the
flier in which your name appears.
I can only say that I think that the court is dead wrong in the
decision that they made. To disseminate a person's picture bearing his
name throughout the business community and to say that this person
has been arrested — despite the fact that the outcome of the arrest
was a dismissal of charges — is just unconscionable, and I am very
displeased with the decision. I wish that it had been the other way.
Does your lawyer have any suggestions as to what the Congress
might do?
Mr. Taylor. If you please, Senator, Eddie and I came over here
at your invitation, and there is just something that I just very quickly
want to say to the Senator, and it is this : I take direct issue with
Chief Justice Burger's remark as expressed in the Renquist opinion
about this plethora of litigation in the Federal system. Had Senator
Alvarez been here today, I had occasion last year to be in South
Dakota defending Sioux Indians. Now, I did not notice at that time
any paucity of Federal resource when it came to prosecuting minority
people. I did not notice any failure of court rooms or judges or prose-
cutors over from Washington talking about the system, how it works.
The system, it seemed to me, works against the people, and particu-
larly I subscribe to what Justice Douglas said over and over again
repeatedly, that the problem was not overloading the court; it was
orientation that the Court wants to preserve, and I refer to the
Supreme Court, preserve it province.
But I submit, just merely as a workaday civil rights radical lawyer,
that if there are not enough courts to handle the preservation of the
11
rights of the people then the remedy is to make more courts, or what-
ever, and not to deny the people their rights. I just did want to say
that to you, sir.
Thank you.
Senator Tunney. I concur with your belief that this decision is
offensive, whatever the reasons. I can understand its justification —
the technicalities that were applied by the Court — but I still find the
result offensive. I want to thank you both for coming here.
Good luck to you.
Mr. Davis. Thank you.
[The chiefs of police flier referred to above follows :]
12
TOt BUSINESS MEN IN THE METROPOLITAN AREA
The Chiefs of The Jefferson County and City of Louisville Police
Departments, in an effort to keep their officers advised on shoplifting
activity, have approved the attached alphabetic ally arranged flyer of
subjects known to be active in this criminal field*
This flyer is being distributed to you, the business man, so that
you may inform your security personnel to watch for these subjects. These
persons have been arrested during 1971 and 1972 or have been active in
various criminal fields in high density shopping areas »
Only the photograph and name of the subject is shown on this flyer,
if additional information is desired, please forward a request j.n writing to»
PUNNING AND RESEARCH UNIT
LOUISVILLE DIVISION OF POLICE
633 WEST JEFFERSON STREET
LOUISVILLE, KENTUCKY U0202
NOTE! ALL REQUESTS SUBJECT TO APFROVAL BY THE RESPECTIVE CHIEF OF POLICE,
This flyer's preparation is accredited to officers of the Second(2nd)
Police District, Tactical Unit, and Detectives of the Criminal Intelligence
Section, in cooperation with the Planning and Research-Development staffs
t,.
of the Police Departmwts.
Sincerely,
du/
Col'. Ed^ar 'Paul^' Col/Hussell McDaniel
Chie£>6f Police Chief of Police
Louisville Division of Police Jefferson County Police
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JEFFERSON C0UNT1
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CCLCNA ZACHERT
18
Senator Tunney. Our next witness is Mr. Tom Ehrlich, who is pres-
ident of the Legal Services Corporation, a distinguished former dean
of Stanford Law School, and also a friend.
It is nice having you before us now.
TESTIMONY OF THOMAS EHRLICH, PRESIDENT, LEGAL SERVICES
CORP.
Mr. Ehrlich. Thank you very much, Senator. It is a pleasure to
be here.
Seventy years ago, when Roscoe Pound gave his famous speech,
he began with a reminder of our obligation that "justice is to be done
equally to the rich and to the poor. . . ." My own focus today is on
the legal problems of the poor and on their needs for access to justice.
Twenty-nine million poor people in this country, people who have
income below subsistence levels. For them economic survival is more
than just a major issue; it is often the only issue. Only a small fraction
of those 29 million poor people have any access to help when they face
a legal problem. For all but that small fraction, justice is beyond reach.
As a result, those who are poor in this country see that access to the
legal system often does depend on money, that justice is not done
equally to the rich and to the poor.
Most of the legal problems that poor people face are relatively
uncomplicated matters involving housing law, consumer law, family
law, and administrative benefits. For the individuals involved, how-
ever, these matters often assume crisis proportion. For most of us a
defective car is a substantial irritant, but for a poor person it may mean
unemployment. A poor person's problem with a landlord may mean
no housing at all. The denial of social security benefits can be disas-
trous.
Access to justice for the poor then means much more than just a
day in court. It means access to the legal system. It means a legal
system that cares about the poor as individual human beings. But
for most poor people today, the entire legal system is remote, imper-
sonal, and inaccessible.
What are the solutions?
In the long run, coordinated revision of all parts of the legal system
is essential. The rules of the system, the institutions of the system, the
ways in which the individuals and groups seek justice through the
system, and the legal services necessary to represent individuals and
groups who seek justice through the system, all those need restructur-
ing. In the short term, particular attention must be focused on the
immediate need for substantially increased legal services for the poor.
THE RULES OF THE SYSTEM AS THEY AFFECT THE POOR
The most straight-forward approach to reducing the burdens on
the courts and the pressures for more legal services is to simplify
the law, to make it more uniform and simple in areas involving
recurring issues. Some relatively routine aspects of family law, land-
lord and tenant law, and consumer transactions are prime examples.
Disputes about Government benefits are equally significant. In these
areas, simplicity and uniformity in the law can prevent controversy.
19
A price has to be paid for simplicity and uniformity, but it is far
less than the price now paid by the poor because of their inability
to understand, let alone to utilize complex legal language, complex
procedures. Reform in this area would go a long way toward reducing
the causes of popular dissatisfaction with the administration of justice.
The high cost of justice could also be substantially lowered by
reducing the need to handle on a one-by-one handcrafted basis the
large numbers of people and the large numbers of total transactions
that result in high costs of legal services. Workers compensation is
an example from an earlier era. No-fault legislation in many fields
is an emerging illustration.
Similarly, the current legislative efforts to reduce the costs and
reduce the time involved in uncontested family law matters are an
important step that has to be taken.
THE INSTITUTIONS OF THE SYSTEM THE COURTS, THE ADMINISTRATIVE
AGENCIES, AND THE LEGISLATURES
For most poor people those institutions are wholly beyond reach.
The courts are the most obvious example. They are clogged; delay
and high costs result.
For the Federal courts, elimination of diversity jurisdiction is one
obvious remedy. But it is also clear that a range of new dispute
mechanisms is needed. Procedural fairness, after all, does not require
judicial proceedings in every situation.
In particular we need more and better community courts and other
community institutions for the settlement of small disputes within
the communities where they arise.
A major category of cases involving the poor concern denial of
benefits by administrative agencies. Those matters very often involve
the most basic needs of the poor. Much ought to be done by the
agencies themselves to resolve those matters within the agencies
without litigation. Some agencies — the Interstate Commerce Com-
mission is one example — have established public counsel to provide
consumer representation in public proceedings. Similar representation
is needed for the poor in those agencies that deal particularly with
problems of the poor.
Legislatures also have been a prime cause of popular dissatisfaction
with the administration of justice. The premium on introducing new
legislation is so high, the gains from well-drafted bills apparently so
low, that too often statutes are written with impregnable prose, and
the result inevitably is seemingly endless litigation about what a
legislature meant.
THE WAYS IN WHICH INDIVIDUALS AND GROUPS SEEK JUSTICE
Over the past few years a series of Supreme Court decisions — and
we just heard about one — has sharply narrowed access to the courts
with a substantial impact on the poor. Those decisions are reversible
by legislation, and I urge considered attention to that possibility.
Two reforms seem to me to deserve particular attention. I believe
that courts should be authorized to award attorneys fees in a large
number of situations in which that is not now possible. Cases against
administrative agencies brought to secure wrongful benefits are one;
a wide range of public interest litigation is another.
20
Further, it is often true that the only way for the poor to obtain
judicial relief is through class actions, and those actions have been
curtailed in recent years. The inability to recover modest sums on the
part of large numbers of poor people mean that they sink further and
further into poverty.
LEGAL SERVICES FOR THE POOR
The reforms I suggested are important. But they will take sub"
stantial time, and even with them, legal advice will always be needed-
Particularly for the poor that advice is essential — by lawyers, by
para-professionals, by others trained in the law, by citizen education
in common legal matters. All those are ways to provide that advice.
Yet for most who are poor in this country, legal advice is wholly
beyond reach.
My own focus is representation in civil matters, for that is the man-
date of the Legal Services Corporation. But more attention is also
needed to the problems of representation in criminal cases.
The first and most important remedy is substantially increased
funding for legal services programs. The Legal Services Corporation
has developed a 4-year plan to provide the equivalent of two lawyers
for 10,000 poor people throughout the country. That does not sound
like very much, and it is not, particularly in comparison to the 11.2
lawj-ers" per 10,000 among the population generally, but even that
minimum level will require substantially increased appropriations.
The Corporation is seeking $140.3 million for the next fiscal year, and
I urge your support for that effort.
Although the primary source of funding ought to be the Congress,
in my view other secondary sources of revenue ought also to be con-
sidered. A small additional payment of 1 or 2 percent of a judgment,
or a settlement, for example, might be collected by every Federal
court and used to support legal services for the poor within its district.
Legal assistance could be provided either through legel services pro-
grams or, where no programs exist, through private attorneys.
Alternatively, a modest surcharge might be added to all civil filing
fees in Federal courts, again to be used for legal services for the poor.
Several States have already adopted such laws. In Oregon, for example,
a $5 fee is expected to produce about $210,000 per year. That could
mean a 15-percent increase in funds for legal assistance to the poor in
that State. A similar arrangement for the Federal courts, of course,
could produce substantially more money.
Whatever our success in obtaining more funds for legal services
for the poor, increased involvement by the private bar in providing
those services without fee is also needed. One way the Federal Govern-
ment might further that end would be to require private lawyers to
devote a small percentage — say 5 percent, 80 to 100 hours a year —
of their time to representing the poor on a pro bono basis as a condition
of continued admission to the Federal courts. The amount of time
involved for any one lawyer would be small, but the total impact on
legal services for the poor could be very substantial.
Finally, one of the most important steps that Congress could take
would be to enact and to fund a new Civil Justice Act, a civil counter-
part to the Criminal Justice Act of 1964, which provides for representa-
tion in criminal matters. The new stature would expand substantially
21
access by the poor to the Federal courts. It would enhance the effective-
ness of the access that now exists.
The new act would require that each U.S. District Court carry out a
plan for furnishing representation to any plaintiff or defendant eligible
to proceed in forma pauperis. Representation under the plan would
include counsel and the support services necessary for effective access.
It would provide for appointment of attorneys employed by legal
services programs or private attorneys selected for a panel designated
or approved b}' the courts, and would require compensation of
those attorneys at reasonable rates.
While some may claim that such legislation would flood the Federal
courts, it could be limited to cases in which a Federal right is claimed,
and any additional caseload would more than be offset by eliminating
diversity jurisdiction. The plan might also serve as a model for States
which could adopt similar plans of their own.
It is true that the Criminal Justice Act of 1964 implements the con-
stitutional right to counsel in criminal cases, and no constitutional
right to counsel has thus far been held to exist in civil matters, though
it well may be emerging, but in all events, the interests of impoverished
civil litigants seeking to vindicate Federal rights seems to me
compelling.
Several of the suggestions I have made can be carried out only by
State and local governments, but many relate solely or significantly
to the Federal Government, and for those I urge your immediate
attention. Even for the others important steps can be taken through
Federal legislation. Most obviously, incentives can be provided to
States that adopt reforms to help cure the causes of popular dissatis-
faction with the administration of justice.
One final point. Faced with so many burdens on our legal system, the
temptation of many is to favor disenfranchising from the system those
without muscle to push, particularly the poor and those other groups
represented at this hearing. That temptation must be resisted. Reform
of the legal system must be made with particular attention to the
problems of the poor and the other groups that are here.
Reform is needed. The Federal Government should lead the way.
Mr. Chairman, with your permission, I would like also to add to
the record statements by the National Clients Council, by the National
Legal Aid and Defender Association, two groups that work very
closely with the Legal Services Corporation in seeking access to
justice for the poor.
Senator Tunney. Yes. They will be included in the record.
[The statements referred to follow:]
Prepared Statement by the National Clients Council
It is with considerable pleasure that the National Clients Council submits
this addendum to the testimony of Mr. Ehrlich. We of the Clients Council have,
I fear, a very skewed and biased view of the justice system as it relates to the
poor. Simply put, we feel that the accomplishment of justice on behalf of a poor
person is too often an accident, a momentary aberration in a system designed
as the arena where the "civilized" might settle their disputes in an orderly, neat,
impersonal manner.
The poor come to the justice system in multiple crisis. As the defendent in
criminal matters, as the litigant or defendent in civil concerns, the poor approach
the situation under great stress. Standing accused of a crime, fighting to stave
off an eviction or foreclosure, dissolving a marriage all mark one as a failure in
some way. Poverty itself is destructive of one's self-image. Combine a low self-
22
image with feelings of failure-and the presence of significant stress and frustration
is an unavoidable end product. Dissatisfaction is too mild a term. To exacerbate
the plight of the poor, these stress situations are resolved by this impersonal
process, by a ritual totally unfamiliar to the person who has the most to lose.
The police, court personnel, attorneys for both sides and judges all know the
game. Only the poor person is life without the script essential to being at ease and
participating.
Examine the "hardened criminal" versus the first offender or those in Family
Court. The repeater stands at ease, mumbles the right phrases, shrugs when the
process moves from one phase to the next. The newcomer to the system exhibits
the classic behavior of a person under extreme stress. And nothing (and nearly
always no one) in the system acts to humanize the impersonal — to explain away
the confusion. In urban settings, this is a game where the super educated set
the rules and the poor might as well be Ellison's divisible Man.
As a further example of stress leading to frustration, let us look at communica-
tion levels. At best the English speaking are confused by the latinized jargon of
the legal trade. The non-English speaking are absolutely cut off from any hope
of comprehension. Where in the legislative process is the Bi-Lingual Courts Act?
At almost every turn these stresses are underlined, reinforced. The court rooms
which the poor are shuffled are crowded an noisy with their first call-second call
confusion. Attorney-client conferences must be held in the public halls, all this
depersonalizes and detracts from the dignity of those who participate. Some
enterprising attorney may one day bring a case contending that subjecting the
poor to this environment is as much cruel and unusual punishment as is confine-
ment in some of our prisons.
For the sake of brevity, I shall not even begin to comment on the poor who
are not fortunate enough to seek justice in urban settings. No one on the sub-
committee will, I am sure, consider justice done when the poor appear before
an untrained justice of the peace who has no idea of (or any concern for) the rules
of evidence or the constitutional safeguards inherent in the dispensing of justice.
At one time, the poor could, if they could gain access to an attorney, at least
pursue their remedies beyond the reach of the justice of the peace and the state
courts, on whose bench all too often sit the bigoted products of the spoils system.
Now, to relieve the overcrowding in the federal courts, all kinds of procedural
steps and judicial opinions are serving to close off even this limited access to the
protection of the rights of the poor.
The poor know that IBM starts its defense of anti-trust actions in the comfort
and relative opulence of the federal courts. The crimes of the rich are not heard
in rural courtrooms or in the misdemeanor sections of the urban system. These
are reserved for the poor. Detention cells house only those who can not raise bail
or those few rich whose crimes are so heinous that no court would dare risk the
public coutrage of returning them to the street. Yet, it is hard to believe that
Patty Hearst was confined with the ladies of the evening or the junkies. Even
in the pre-trail phase "the poor pay more."
The sub-committee raises a sound question when it asks about possible legis-
lative remedies. There are, of course, things like the Bi-Lingual Courts Act which
could relieve the frustration and the Clients Council would be pleased to offer
in another more, detailed presentation further suggestions, should the sub-
committee so desire. However, for now, we would like to focus on just one
aspect.
It is, in our opinion, not a case of a need for additional legislation. The question
at hand is the willingness of the Congress to use the power it already has and to
wage the necessary fight to achieve the goals it desires. We refer to the right of
the Congress to appropriate and to oversee.
One has only to examine the Legal Services Corporation Act to find a case in
point. The Congress, in considering this legislation, recognized the need to provide
an improved vehicle for the poor's access to justice. Inherent in this Act was the
understanding that attorneys were an essential element of such access. The
enabling legislation is two years old and we now watch as the program is starved
by an appropriation which insures that frustration and rage will be the end prod-
ucts rather than justice.
Similarly, the appropriation level for the federal courts and supportive services
are further examples of this starvation technique. Where is the oversight of the
Congress when the funds appropriated for LEAA go to hardware?
A bold Congress might consider legislation which would establish a federal
competency-based standard for admission to the bar. Pilots are licensed by a
23
single federal competency standard and states do not require separate certification
before permitting use of state-owned airports. Minority attorneys offer some
possibility of lessening the stress-produced dissatisfactions— yet in many jurisdic-
tions the organized bar is a closed shop to which none but a select, fortunate
few minorities need apply. Court suits brought in such places are too often viewed
as threats to the order of things — an assault on the old-boys club. Without legis-
lative guidance, the federal courts have asserted that they lack jurisdiction to
intervene. But then, the poor know that the rich seldom seek representation from
minority attorneys. So who cares how many people from poverty backgrounds
could become a tool to reduce the miscommunication.
The resolution of the problem is, in the Clients Council's view, most difficult.
Difficult because there are no real culprits. The fault lies not in the judges or the
attorneys, although they are contributers. Money and oversight are not the
answers, although they would help. The problem is the lack of will, the lack of a
sense of purpose, the failure to identify the multitude of individual and collective
problems and apply the resources it would take to resolve them.
We fool ourselves if we make our attack on the problems less than an all out
effort. We do everyone a disservice if we allow the present sj^stem to pass for
justice where the poor and minorities are concerned.
Thank j-ou for the opportunity to comment.
Prepared Statement of Frank N. Jones, Executive Director, National
Legal Aid and Defender Association
Mr. Chairman: On behalf of the National Legal Aid and Defender Association,
I am grateful for the opportunity to present this statement on this important
topic. Mr. Chairman, you correctly noted in your invitation to testify that last
month's "Roscoe Pound Revisited" Conference in St. Paul treated this subject
as though it were primarily an administrative problem, to be addressed by judges
and lawyers. Fortunately, these hearings afford an opportunity for a much
broader spectrum of views; I am confident that the record of these heerings
will demonstrate that the causes of popular dissatisfaction with our justice
system run far deeper than mere inefficiency. Indeed, the primary "dissatisfaction"
on the part of the 30,000,000 poor people who make up NLADA's constituency is
the threshold problem of access to the system of justice. Until this fundamental
barrier is overcome, the problems of court administration remain secondary to the
nation's poor.
The National Legal Aid and Defender Association has been in the forefront of
the battle for increased access to the justice system for poor people since its
inception in 1911. NLADA is the only national organization which devotes its
entire resources toward achieving the goal of equal justice under law for the
poor; we are the national voice of the poor in matters concerning the justice system,
comprising over 1,500 member programs which provide legal assistance to indi-
gent persons.
In the civil sector of the justice system, we are entering a new era, after years of
political turmoil. With the establishment of the Legal Services Corporation, due
in great measure to the efforts of NLADA, there is at long last an independent
government body with a clear mandate to provide adequate civil legal assistance
for the nation's poor people. We shall continue to work along with thed Legal
Services Corporation in fulfilling this challenging mandate, assisting when asked
and prodding when necessary. The combined efforts of NLADA and the Corpo-
ration offer the best opportunity to date to achieve adequate civil legal assistance
to the nation's poor.
Unfortunately, the advent of the Legal Services Corporation does not solve
the problem of access to the justice system for poor people. Contrary to popular
misconception, the poor are not guaranteed comprehensive legal services. Only
59% of the nation's poor people are even nominally covered by existing civil
programs of those covered, an average of just $2.16 per person annually is avail-
able! The most recent national data available indicates that 0.76 legal services
attorneys are allocated for every 10,000 poor people, and that less than 15% of
the approximately 7,000,000 legal problems arising for indigents each year are
handled by legal counse. (Statistics for F.Y. 1974, from The Legal Services Pro-
gram: Resource Distribution and the Low Income Population, Bureau of Social
Science Research, 1975).
24
The critical importance of adequate legal representation was well stated by
Dean Roger Cramton, Chairman of the Legal Services Corporation's Board of
Directors, in his address to the 1975 NLADA Conference in Seattle: "(w)here
the consequences of failure in civil litigation are sufficiently grave, an individual
is denied due process if he does not have the guiding hand of counsel at every
step of the proceedings. Without such assistance, he simply has no meaningful
'access' to the justice system."
These "consequences" can include eviction from one's dwelling; loss of custody
of a child; garnishment of wages; denial of welfare or social security benefits;
denial of medical and hospital care; and a lengthy list of similar burdens borne by
the unrepresented poor.
Often, well-intentioned legislation aimed at increasing indigents' access to the
justice system is rendered ineffective through failure to provide for legal repre-
sentation. The Education for All Handicapped Children Act of 1975, 20 U.S.C.
§ 1401 et seq., admirably provides for the right to counsel in administrative
hearings governing the assessment and educational placement of mentally handi-
capped children. However, unless funds are made available for indigent families
to retain counsel, and unless legal services programs receive appropriations
sufficient to allow them to handle such cases, this and many similar "rights" to
counsel are only paper rights.
Unfortunately, Supreme Court decision expanding the right to counsel in
criminal proceedings (Gideon v. Wainwright, 372 U.S. 335 (1963); Argersinger v.
Hamlin, 407 U.S. 35 (1972)) have not been extended to civil proceedings. Indeed,
recent decisions have brought about new civil barriers to the justice system for
poor people, in addition to the failure to extend the right-to-counsel doctrine to
the civil side. In United States v. Kras, 409 U.S. 434 (1973), the Supreme Court
refused to waive filing fees in indigent bankruptcy petitions; waiver of fees was
also denied in appeals from adverse public assistance determinations in Ortwein v.
Schwab, 410 U.S. 656 (1973). Just as harmful to the cause of increased court
access for the poor was Eisen v. Carlisle and Jacquelin, 417 U.S. 156 (1974),
which severely restricted the use of the class action, the most effective procedural
method for affirmative litigation on behalf of the poor.
Perhaps the most telling judicial blow to the movement for increased access to
the justice system was the Supreme Court's holding last year in Alyeska Pipeline
Service Co. v. Wilderness Society, 421 U.S. 240 (1975). This decision eradicated
the "private attorney general" doctrine, which permitted attorney's fees for
prevailing parties in actions to uphold the public interest. Under this doctrine,
counsel was available in cases involving major poverty law issues to poor people
who could not otherwise afford legal representation.
The Alyeska case brings me to the first of NLADA's recommendations for
Congressional action to remedy the poor's dissatisfaction with the administration
of justice:
1. NLADA strongly supports Senate passage of S. 2715, the Kennedy-Mathias
bill, which was reported out of the full Judiciary Committee on May 13. As you
know, this bill would permit attorney's fees in successful federal court reviews of
administrative agency decisions, when such actions uphold the public interest. In
addition, S. 2715 would appropriate funds for participation by poor people and
other citizen groups in federal administrative agency rulemaking proceedings, thus,
for the first time, affording poor people a systematic opportunity for input into
decisionmaking which affects so many aspects of their lives.
2. NLADA urges the Appropriations Committees of both houses of Congress
to grant the requests of the Legal Services Corporation for supplemental and
annually increasing funds to extend legal services program coverage to indigents
throughout the nation; we urge full support for the F.Y. 1977 budget request of
$140-3 million.
3. NLADA proposes that all future legislation granting new substantive and
procedural legal rights to poor people include funds for provision of counsel to
ensure the protection of those rights.
4. NLADA urges the Judiciary Committee to revise Rule 23 of the Federal
Rules of Civil Procedures to ensure that Class Actions are readily available, and
financially and logistically attainable, as a remedy in the Federal Courts.
5. NLADA urges the Judiciary Committee to revise the Federal Judicial Code
so as to provide for the automatic waiver of fees and costs to indigent parties in all
actions in the Federal Courts.
In the criminal defense sector, much dissatisfaction with the justice system
exists on the part of poor persons accused of crimes. According to a 1973 survey
25
conducted by the National Legal Aid and Defender Association, two-thirds of the
counties in the United States, particularly in rural areas, lack any organized
system for providing representation to poor persons in criminal cases and rely on
ad hoc judicial appointment of counsel. The basic problems in these areas include
the lack of availability of counsel for appointment, inadequate compensation for
court appointed counsel, and lack of training for these lawyers in the specialized
field of criminal defense.
In the remaining counties, some form of organized defense system exists,
whether it be a public defender office, a not-for-profit defender corporation or legal
aid society, or a coordinated assigned counsel system. However, these programs
are severely hampered in their efforts to provide effective defense services to the
poor.
The number one problem in defender offices is the lack of sufficient funding.
In the great majority of jurisdictions which do provide organized defense services,
funding comes from the county tax base, which is frequently low, resulting in
inequality of representation within a particular state. Inadequate funding leads
to excessively high caseloads per lawyer, inadequate investigation of cases by the
defense, excessive and uniformed plea bargaining, and the lack of career incentives
to retain skilled practitioners in the field of defender work.
A second problem faced by defender offices, and recognized by their clients, is
political and judicial influence upon the operation of their offices. Judges and local
officials often see defender hiring as a means of handing out patronage. Defender
offices which submit to political hiring practices may be rewarded by an increase in
staff. In some jurisdictions this practice has been avoided through enlightened
procedures whereby the defender is selected by an independent board. However,
even these offices are frequently threatened with extinction by virtue of diminish-
ing county resources and competing bids from outfits which offer to provide
services, however inadequate for a lesser cost.
In recent years, the resource which both jurisdictions lacking organized defense
programs and jurisdictions wishing to upgrade their defender systems have
turned to for support is the Law Enforcement Assistance Administration. LEAA
is the principal source of federal funding for state and local defender offices.
However, the most recent study of LEAA funding, conducted through American
University, demonstrates that less than 2% of the limited LEAA funds have been
allocated to defense projects. Moreover, due to the legislative-mandated funding
scheme under which LEAA operates, defender funding is for a limited time
period — usually, 2 to 3 years. Thus, those defender programs which have received
LEAA funding must later be funded by their county or state treasuries or be-
come extinct. A more permanent source of federal funding must be found to
augment inadequate local funds, especially in poorer counties.
As many as 4 million poor persons annually are charged with a criminal offense
and represented by a defender or appointed counsel because they are unable to
afford to retain private counsel. These people are frequently herded through a
"cafeteria-type" justice system wherein, due to inadequate resources, they are
given little time to confer with a lawyer and may be influenced to plea guilty
because of lack of preparation of defense counsel or waivers of counsel which may
have been induced as a result of the unavailability of counsel.
One important factor in the reduction of citizen access to the criminal justice
system has been a series of recent Supreme Court decisions affecting the right of
indigent defendants to counsel at public expense. The right to counsel is the foun-
dation of all other constitutional rights because without counsel the average
defendant is not aware of and will probably not assert the substantive and pro-
cedural rights that are his. Recent decisions involving the right to counsel have
reversed the earlier trend towards providing poor people in criminal proceedings
with the same advantages enjoved bv the rich. Previous cases such as Gideon v.
Wainwright, 372 U.S. 335 (1963) and Argersinger v. Hamlin, 407 U.S. 25 (1972)
extended the right to counsel at public expense to all cases where imprisonment
is a possible punishment. Although the general holdings of these cases remain,
the idea of full representation by counsel has been substantially eroded.
The most far-reaching decision is Ross v. Moffitt, 417 U.S. 600 (1974) holding
that indigent defendants are not entitled to court appointed counsel in the pur-
suit of appellate discretionary review. This case severely limited the holding in
Douglas v. California which provided for counsel on appeal. The defendant in
Ross was provided counsel for trial and for one appeal, but was not allowed repre-
sentation at public expense for a petition for writ of certiorari to the state Supreme
Court. The Fourth Circuit unanimously held that the defendant did have a right
26
to counsel for the whole appeals process, asserting that in a criminal case all
avenues of appeal open to a wealthy defendant should be open to a poor one.
Moffitt v. Ross, 483 F. 2d 650 (4th Cir. 1973). The Supreme Court reversed,
holding that an indigent was entitled to counsel only for the first step of the
appellate process.
In Gerstein v. Pugh, 95 S. Ct. 854 (1975), the Court indicated that the right to
counsel did not extend to a hearing before a magistrate to assess probable cause
for a warrantless arrest and subsequent detention. The Court made the dubious
assertion that such a probable cause hearing is "non-adversary," and concluded
that it was therefore not one of the "critical stages" of a criminal proceeding at
which counsel is required by Coleman v. Alabama, 399 U.S. 1 (1970).
In the past three years, Supreme Court decisions have restricted the right to
counsel in three specific contexts. These decisions are important for the situations
in which one who may be punished by law is without legal assistance, and they
indicate a general attitude which may further limit the right to counsel in the
future. The Supreme Court upheld denial of counsel: in summary courts-martial,
even though sentences of imprisonment and imprisonment at hard labor could
be imposed, Middendorf v. Henry, 18 Cr.L. 3142 (1976) ; in prison disciplinary pro-
ceedings, for conduct punishable as a crime under revocation proceeding, except
under certain stringent circumstances, Gagnon v. Scar pell 411 U.S. 778 (1973).
A decision which adversely affects the right to counsel in State courts is Fuller v.
Oregon, 417 U.S. 40 (1974), where the Court held a defendant's parole would be
made conditional on his repayment of appointed counsel and investigator fees
should he become able to do so. Fuller will doubtless cause many states to adopt
the sort of 'recoupment" statute used in Oregon. First, no other debtor could
be sent to jail for defaulting, but Fuller's probation could be revoked for that
reason. Second, and more important as a constitutional defect, is the "chilling
effect" of the statute: the defendant may hesitate to accept an appointed attorney
when the attorney comes with an open-ended bill for services. Further, if the
defendant accepts counsel, he may be reluctant to incur the added expenses
of trial or of trial by jury. The result is a built-in inducement to the citizen to
waive his constitutional rights.
The combination of adverse Supreme Court cases and the inability of states
and counties to provide adequate resources to meet existing mandates for the
provision of counsel operates to alienate many Americans who pass through this
Nation's criminal courts. As is the case in the civil sector, dissatisfaction with the
justice system arises from a failure to obtain the adequate counsel which can
make "justice" a reality.
I am confident that the Committee will fully consider this testimony and
recommendations, for I have no doubt that the members of the Committee, like
the majority of Americans, feel that popular dissatisfaction with the justice
system is far more fundamental than a matter of court administration. For the
poor people whom NLADA represents, dissatisfaction with our system of justice
will not diminish until access to that system becomes a reality.
Thank you again, Mr. Chairman, for this opportunity to present our views on
these important issues. And, of course, we would be happy to provide any further
information or assistance the Committee and staff thinks appropriate.
Senator Tunney. Thank you, Mr. Ehrlich. I want to make a couple
of observations and then ask a question of you.
It has been my impression that those persons who are in private
practice for financial gain are reluctant, once they achieve a certain
status in their profession, to give of their time for pro bono services.
They have many clients that are demanding their time. They have to
choose among clients as to the amount of time that they are going to
devote to any particular case. Therefore, it would seem to me these
lawyers would resist giving pro bono services to the poor, even if it
were 5 percent of total services, and then one might conclude that
if they were forced to do it, they would treat such cases in a cursory
manner: not giving their full attention to pro bono cases, being more
concerned about the high paying client. That observation may be
based upon some false premises. I would like your opinion on that,
but, first, as an observation it seems to me that those legal service
27
lawyers that I have met who are working for the California rural
assistance program, the Indian legal service program, and other
public service programs for lawyers, tend to be highly motivated,
they really have a desire to be of service to the poor, so that if you
were going to choose between an expansion of a program such as the
Legal Service Corporation, or, a requirement that lawyers give 5
percent of their time to the poor as a precondition of being admitted
to the Federal Courts, for example, that it would perhaps be best to
come down on the side of expanding the Legal Services Corporation,
rather than going the other route.
As I have said, those observations that I have made may be based
upon false premises, and I would just like to get your evaluation.
Mr. Ehrlich. I agree completely, Senator, that if we had to choose
between expanding legal service programs with staff attorneys and
looking to the private bar for pro bono efforts, Ave should choose the
former. There is no more dedicated group of lawyers than those who
are working in legal services programs. They are the pride of our
profession.
At the same time, I do not think we have to choose. We must expand
legal services programs for the poor. That is and always will be the
mainstay of access to justice for the poor. At the same time private
lawyers can serve an important role — and I believe they ought to serve
that role — as a supplement, particularly in rural areas and other parts
of the country that have no legal services programs.
Senator Tunney. Do you think that they would serve competently
and would represent the rights of the poor in an effective fashion?
Mr. Ehrlich. You raise the concern that they might shortchange
their poor clients because they would not be paid. They would, of
course, have a professional obligation under the "Canons of Ethics"
to represent those clients just as they represent every other client.
It is also true that we need, as you have said, far more effective en-
forcement mechanisms within the bar to insure that lawyers do per-
form their professional obligations. But from talking to a great many
members of State and local bars, as well as the American Bar Associa-
tion, I am convinced that if such an obligation were in existence,
private lawyers would fulfill it and that the bar would support it
without shortchanging their clients.
Senator Tunney. Why has not the bar put more effort into this
kind of a forum?
Mr. Ehrlich. We have come a long way, I think, in the last 10
years. Last summer in Montreal the American Bar Association
established that lawyers have an affirmative obligation to provide
public service. That was a major step forward, and it was lead by a
group of those within the American Bar Association who believe that
lawyers in private practice ought to do more. That obligation has yet
to be quantified in terms of specific time or to have muscle behind it,
but that, too, I think, will come.
Senator Tunney. One of the areas that you did not address during
your remarks was research. It strikes me that there is a dearth of
hard data on precisely who is served by the legal system and who is
not. We also do not know with any precision what the costs are of
coverage of legal representation in this country.
Do you agree that such a study ought to be completed?
28
Mr. Ehrlich. I agree completely. The sad truth is that there is
little research that has been done on the amount of representation,
the cost of representation, the quality of representation, or the ways
in which average citizens interact with the legal system and make use
of it or fail to make use of it. It is very important for those studies to
go forward, and I hope very much that this subcommittee will sponsor
some of them. Others dealing particularly with the problems of the
poor are appropriate for the Legal Services Corporation to sponsor.
And I hope we can do some of this work together.
Senator Tunney. The American Bar Association, among others,
proposes the establishment of a National Institute of Justice as our
Government's impartial, nonpolitical, independent clearinghouse for
research, getting facts on the administration of both civil and criminal
justice in the United States.
What do you think of the idea?
Mr. Ehrlich. I think it is an excellent idea, and I hope it goes
forward quickly. The agenda set forth for the Institute — which one
might have hoped would have been done within the Justice Depart-
ment, but is not done there — can only be done, I am now convinced,
by a new and independent entity along the lines of the proposed
Institute.
Senator Tunney. Have any law schools or any foundations made
an attempt to develop research on the administration of criminal
justice which you feel would be helpful to the subcommittee's
activities?
Mr. Ehrlich. At a number of law schools around the country,
research is going on that no doubt relates to the kind of work the
subcommittee is doing. One problem is the lack of a clearinghouse,
and that is part of what a national institute ought to be doing. I
know of no law school, however, where studies are now going on
concerning the costs, quality, or reach of legal representation.
Senator Tunney. You have been the president of the Legal Services
Corporation for what, 6 months now?
Mr. Ehrlich. Somewhat over 4 months.
Senator Tunney. In the time that you have been president, what
do you think that the Legal Services Corporation has been able to do
in providing of legal services for the poor, that had not been done
previously?
Mr. Ehrlich. For 5 sad years, Senator, funding for all legal services
was frozen while some sought to eliminate legal services for the poor,
if not the poor themselves. It was evident to a good many, and you
were one, that a new independent entity was needed to give a sense
of tomorrow — and the day after tomorrow — a sense of permanence
to access to justice for the poor, and to gain substantially more re-
sources devoted to that end. That has been the major mission in the
last 4 months. We are seeking a substantially increased appropriation
over the $88 million that the Legal Services Corporation received
for fiscal year 1976, and we hope that we will, with that appropriation,
be able to reach areas of the country that do not have legal services.
Senator Tunney. I want to thank you very much, Mr. Ehrlich,
for your statement. You have given to the Congress an excellent blue-
print for legislation to assist you and those of your associates who are
trying to bring a greater degree of legal help to the poor, and I would
29
like at some future time to go over with you in greater detail some of
the recommendations that you make — particularly with respect to a
prioritization of some of these points — in the hope that we could move
some of the suggestions through the Congress in the near future.
Mr. Ehrlich. It will be a great pleasure to do that. I am grateful
for being asked to be here.
Senator Tunney. Thank you very much. I appreciate it.
Mr. Ehrlich. Thank you.
Senator Tunney. Our next witness is the Honorable Julian Bond,
State senator from Georgia, who is accompanied by John Lewis, exec-
utive director, Voter Education Project; Armand Derfner, attorney,
Charleston, S. C.
Welcome, Senator Bond.
TESTIMONY OF JULIAN BOND, STATE SENATOR FROM GEORGIA
Mr. Bond. Thank you, Senator.
Senator Tunney. It is a pleasure having you before our subcom-
mittee. Your reputation precedes you, and we feel that we are privi-
leged to have the opportunity to hear from you.
Mr. Bond. Thank you a great deal.
Mr. Chairman and members of the subcommittee, I am Julian
Bond, State senator representing the 39th District in Atlanta, Ga.
With me are John Lewis, director of the voter education project of
Atlanta, Ga. ; and Armand Derfner, a lawyer of Charleston, S.C.
For blacks and other minorities, dissatisfaction with the adminis-
tration of justice is nothing new. Throughout our history we have
seen the system of justice perverted to the same illegitimate ends as
the dominant political process in making certain that those who have
most should keep it, while those who have least should stay that way.
I would like to limit my focus today to one area of concern, but one
which I think is vital. That area is the special need for the Federal
Government, especially the Federal courts, to be responsive to the
claims of blacks and other minorities for enforcement of fundamental
rights of equality and freedom. I have always thought that under our
Constitution courts have a special obligation to be alert to protect
minority rights precisely because unlike the majority, we cannot rely
on the normal workings of the political process.
Today there are unmistakable signs that the obligation is being
disavowed, and to those of us who have grown up in a period when
we thought Government was beginning to live up to its responsibilities,
the present trends are the beginning of a national tragedy.
Unquestionably, my views are shaped by the times I have seen.
During these times, beginning roughly with the 1954 school desegre-
gation decision, the system of justice began to change. The Constitu-
tion was rediscovered, Congress began passing new laws to back up
our efforts to gain equal rights, the Federal courts began protecting
our rights, the Justice Department began to answer our telephone
calls, and slowly to put people to work on the side of what we thought
was the right.
The effect of all this was enormous. We had not ever seen anything
like it. What was just as important, the sheriffs, the mayors, and
lunch-counter owners of the South had not seen anything like it,
30
either. Blacks were just as frustrated as ever by the inability to get
anything done by local efforts, and we were not alone. We began to
get a dim feeling that we really could help bring about change.
The mood is radically different today. There is enormous contempt
for Government, for institutions, and especially for the laws. With
that contempt goes an enormous cynicism and distrust, a rejection
of any idea of getting involved. There is no idea of trying to change
the system, but of simply staying out of its way. The feeling is, don't
get sad, don't get mad, we'll just get by.
Now, obviously, a lot of this is reaction to the political system,
and much of it does not have to do with the courts or the system of
justice, at all. But to blacks and other minorities, courts are not the
distant abstractions you may think. It was the courts that first
began to respond to our rights even before the Brown decision; it
was the courts that ended white primaries, white juries, and the idea of
white schools.
Political scientists do not usually think of courts as the most
democratic institutions in the society, but to black people for a
generation the courts were the essence of our democracy, the main
symbol of the fact of our belief that we were finally becoming a
part of the Nation. Today that sense is going fast.
In 1965, when I was first elected to the Georgia House, the other
members refused to let me be seated because I had some things to
say about the Vietnam war, things that very few people disagree
with today. The Supreme Court held that the Georgia Legislature
had no business excluding me and disenfranchising the voters in
my district for exercising my right of free speech. That was only 11
years ago, but I was lucky that it happened then, because I have a
real feeling that if the case came up today, we would be told that the
Federal courts are not in the business of running State legislatures
and that we should take our complaints somewhere else.
For many people, for many issues, there is nowhere else.
I do a great deal of traveling, more than I would like, and I keep
telling my audiences that they have to get involved, but that if they
do, they can make things change. I would like to be able to keep on
believing that.
Senator Tunney. Thank you very much, Senator Bond.
Given the despair that you have described, I assume that legislative
and administrative remedies are the only hope for the poor and
minorities. Can you describe what you feel that the Congress ought
to do in making available greater remedies to the poor?
Do you have any thoughts on the subject of what precisely the
Congress could do?
I am not asking now for detailed legislation, but for the general
areas where you feel it would be important for Congress to act.
Mr. Bond. Senator, in part of my statement that I did not read,
I mentioned that I am not an attorney and tried to indicate that that
is neither vice nor virtue.
I cannot offer specific recommendations, but I would like to think
that the Congress would once again make the Federal judiciary a
responsive and sympathetic referee in disputes between citizens
at the lower level.
There was a time 10 years ago when those of us who were involved
in the civil rights movement in the South felt fairly confident that
31
in the event of an insoluble dispute over first amendment rights,
the right of free speech, the right to peacefully petition the Govern-
ment, that the Federal judiciary would always be an impartial,
however sympathetic referee. And now one gets the real feeling that
that is no longer the case, that disputes which once were handled
very easily and very quickly at the Federal level will now be dismissed
and sent back to the State courts where the result is often in opposition
to those people who want to expand their rights.
[The prepared statement of Mr. Bond follows :j
Prepared Statement of Hon. Julian Bond, State Senator From Georgia
Mr. Chairman and members of the committee, I am Julian Bond, State senator
representing the 39th district in Atlanta, Ga. With me are John Lewis, director of
the voter education project, of Atlanta, Ga., and Armand Derfner, a lawyer, of
Charleston, S.C. I appreciate the opportunity to appear here today, and would
like to proceed with a short statement, following which Mr. Lewis will have a
statement of his own, and then we will try to answer any questions you may have.
As I understand the reaction to Roscoe Pound's speech to the American Bar
Association in 1906, he got his audience mad just by saying that the people were
dissatisfied with the administration of justice. That may have been surprising to
the lawyers and judges in his audience, but it couldn't have been surprising to the
people.
Especially, it couldn't have been surprising to black people and those of other
minority groups. For blacks and other minorities, dissatisfaction with the ad-
ministration of justice is nothing new. Throughout our history, we have seen the
system of justice perverted to the same illegitimate ends as the dominant political
process in making certain that those who had most should keep it, while those who
had least should stay that way.
You have many experts here today who will give you detailed legal analyses of
the topics you are studying. I should say that I am not a lawyer. Whether that is
a vice or a virtue changes with the times, and it is not clear to me what type of
time we are in now. Today, though, I would like to take advantage of my non-
membership by limiting my focus to one area of concern, but one that I think is
vital.
That area is the special need for the federal government, especially the federal
courts, to be responsive to the claims of blacks and other minorities for enforce-
ment of fundamental rights of equality and freedom. I have always thought that
under our Constitution, courts have a special obligation to be alert to protect
minority rights, precisely because, unlike the majority, we cannot rely on the
normal workings of the political process.
Today, there are unmistakable signs that that obligation is being disavowed,
and to those of us who have grown up in a period when we thought government
was beginning to live up to its responsibilities, the present trends are the beginning
of a national tragedy.
To those of us who have only recently begun to have a real place in this society,
the present trends tell us not only that we will stop advancing, not only that the
gains we have made are being erased, but that our brief welcome is almost worn
out.
Unquestionably, my views are shaped by the times I have seen. During these
times, that began, roughly, with the school desegregation decision, the system of
justice began to change. The Constitution was rediscovered, Congress began
passing new laws to back up our efforts to gain equal rights, the federal courts
began protecting our rights, the Justice Department began to answer our tele-
phone calls and, slowly, to put people tc work on the side of what we thought was
the right.
The effect of this was enormous. We hadn't ever seen anything like it. What
was just as important, the sheriffs, mayors, and lunchcounter owners hadn't
ever seen anything like it either.
It meant there was someone backing us up, to confirm the fact that we were
right. Blacks were just as frustrated as ever by the inability to get anything done
by local efforts, but we were not alone. There was a sympathetic referee, if I can
borrow a term of John Lewis', to whom we could turn for support.
We began to get a dim feeling that we could really help bring about change, and
this feeling extended not only to the civil rights movement but also to people who
32
were pretty much alienated from government. As time went on, and as we learned
more, and people began to redevelop a new contempt for government and its
institutions, there was still a feeling that it could be changed.
The mood is different today. There is enormous contempt for government,
institutions, and especially the law. With that contempt goes an enormous
cynicism and distrust, a rejection of any idea of getting involved. There is no
idea of trying to change the system, but of simply staying out of its way. The
feeling is "Don't feel sad, don't get mad, we'll just get by."
But that's not really true, because people are getting mad. And it's a more
dangerous anger, because it follows a time when we started beginning to see how
things might change. T think we are sowing the seeds of social chaos, and if things
don't change I am going to be afraid of what we face.
Now obviously a lot of this is reaction to the political system, and much of it
doesn't have to do with courts or the system of justice at all. But to Blacks and
other minorities courts are not the distant abstractions you might think. It was
the courts that first began to respond to our rights, even before the Brown decision.
It was the courts that ended white primaries, white juries, and the idea of white
schools. Remember also that the federal judges were in some ways the closest
federal representatives, and the most visible. A federal lawsuit was never very
far from our thinking of what to do if we ran into brick walls.
When we thought of remedies and solutions, very often a federal court order
was an important ingredient. The federal courts represented a constant reminder
that someone was listening.
Political scientists don't usually think of courts as the most democratic institu-
tions in a society, but to Blacks for a generation, the courts have been the essence
of our democracy, the main symbol of the fact — or our belief — that we were
finally becoming a part of this Nation.
Today that sense is going fast. The lawyers tell us the federal courts are invent-
ing new doctrines to justify why they don't even have to hear our cases. I am not
an expert on these details, but I read that the Supreme Court has decided that a
Black defendant isn't entitled to ask his jurors whether they will be prejudiced
against him because of his color. I read that the Voting Rights Act doesn't prevent
small southern towns from discriminating against us as long as they are careful
not to make things worse than they were in 1965. I read that if the police in
Louisville go around calling you a crook, or if the police in Philadelphia go around
beating people up, or if the judge and prosecutor in Cairo deliberately bring
false charges and set unreasonable bonds just to shut Blacks up — the federal
courts are not interested in any of these. They are closed.
In 1965, when I was first elected to the Georgia House, the other members
refused to let me be seated, because I had said some things about the Vietnam
war — things that very few people disagree with today. The Supreme Court held
that the Georgia legislature had no business excluding me (and disfranchising
the voters in my district) for exercising my right to free speech.
That was only eleven years ago, but I think I was lucky that it happened then
because I have a real feeling that if the case came up today, we would be told that
the federal courts are not in the business of running state legislatures and that
we should take our complaints somewhere else. Well, for many people, and many
issues, there is nowhere else.
I do a lot of traveling, more than I'd like, and I keep telling people that they
have to get involved, but, that if they do, they can make things change. I'd like
to be able to keep on believing that.
Senator Tunney. It was my understanding that Mr. John Lewis
may have a short statement.
TESTIMONY OF JOHN LEWIS, EXECUTIVE DIRECTOR, VOTER
EDUCATION PROJECT
Mr. Lewis. Senator Tunney, I want to thank you for the oppor-
tunity to present these brief remarks on causes of popular dissatisfac-
tion with the administration of justice in this Nation.
Since I am not a lawyer, I do not come here as an authority on the
judicial system, but rather, with some very real concern about the
administration of justice in this Nation.
33
In my work as executive director of the voter education project, I
come in contact with thousands of poor people, minorities, nameless
individuals, people who have been left out and left behind in this
country. In the midst of affluence, their dreams to share equally in
the wealth and resources of this Nation remain unrealized.
For a brief and fleeting moment in the decade of the 1960's, the
Federal Government gave minorities and poor people a sense of hope.
In the great civil rights struggle, there were some outstanding in-
stances in which the rights of black citizens were affirmed and pro-
tected. This first ray of light and hope since the darkest days of slavery
came about, not because of the sudden enlightenment of the Nation's
leaders and the keepers of the courts, but because a massive, courage-
ous, and dedicated movement demanded it and threatened to throw
this Nation into total chaos if serious attention was not given to their
longstanding needs.
During the 1960's, we made some gains in this Nation. We opened a
few doors which had been closed for decades and, for a moment, it
seemed the promises of the Constitution and the Declaration of In-
dependence and the Bill of Rights might indeed apply also to blacks,
chicanos, native Americans, Puerto Ricans, and even to women.
But, today, as we celebrate the 200th birthday of this Nation, minori-
ties no longer experience a sense of movement, a sense of progress, a
sense of hope. Too often the dream has been stifled by the politics of
expediency and the civil rights laws which were enacted in the 1960's
are not vigorously enforced. Affirmative action programs on the part
of the Federal Government are inadequately conceived or totally
nonexistent. And as minorities return to the courts to check the back-
ward drift of the Federal bureaucracy, we are stunned by the realiza-
tion that our judges are more concerned with easing crowded court
dockets than continuing to expand the basic rights of people who are
still struggling to attain a position of equal opportunity.
We are beginning to be asked again, in this Bicentennial year,
"Just what do you people want from the American society?" Our
answer now is the same as yesterday, we want a fair share and a
fair shake from the affluent American society which our lives, our
blood, our struggles, and our sacrifices have helped to build.
We are sick and tired of seeing the courts dispense added advantage
to the very rich and the already powerful ruling elite of the United
States. We are tired of having to shoulder the total burden of pressing
our own grievances in a legal and political system where the cards are
stacked against us. We are tired of paying a disproportionate share of
tax dollars to perpetuate a political and legal system where we find no
justice for ourselves. We are tired of losing court cases because we
cannot afford the legal fees. We are tired of having our land taken, of
being unable to provide adequate food, clothing, housing for our
families, and education for our children. We are tired of being taken
for granted in an economic system where wealth is flaunted in our
faces by those who control our lives.
Just as the legal system of common law originated as a device of
absolute control by the rich and the powerful, we still have a peasant
class in America and that presents a very dangerous situation.
From across this Nation, I sense a growing restlessness from the
ghettos of Chicago to the barrios of California, from East Harlem to
34
the western reservations, from the cotton curtain of the South to the
raped and ravaged region of Appalachia, there is a growing frustration,
a dying sense of hope, and a smoldering resentment which may explode
with a fury that we have never seen before in the history of this Nation.
What we hear being described today as a growing cynicism, distrust
of Government, and apathy on the part of the electorate, is, in my
estimation, a quiet and growing anger which always breeds when
human potential is denied.
It seems that we must now gird ourselves for a long, hard winter as
high placed voices begin to recite the litany of the elite. They are
saying that minorities are moving too fast ; that we should be satisfied
with the crumbs we have been able to gather from the table of plenty.
They are saying the courts of this land should not be the battleground
for further advances of human rights. But I say to you today, if these
rights remain unfulfilled and we see the clock turned backwards, then
the battleground will shift from the courts and the legislative process
and the so-called avenues of justice back into the streets of this Nation.
There are those who would return the destiny of minorities and the
poor back to the sovereign control of demagogues who have only used
their misplaced authority to perpetuate racism and injustice. We've
been in too many jails and prisons, fought too hard and long, lost too
many of our finest leaders and suffered too often as victims of injustice
to return quietly to the chains and disillusionment of the past.
There may well come a time when thousands of Americans will again
engage in campaigns of civil disobedience in the face of unjust laws,
lack of legal redress, and a lack of justice in the American system. The
next time the battle will not be limited to the forces working for civil
rights or civil liberties, but will include Americans who are taxed
without representation, consumers who are bilked by the frauds of the
marketplace of materialism, and environmentalists who see our
natural resources shrink in direct proportion to the profits and gain of
multinational, self-interest corporations.
All around the globe, there is a terrible hunger for self-determination,
for the freedom to grow and develop the awesome capacity of human
potential. This great movement will not be defeated, at home or
abroad. The American minorities are sick and disillusioned by the
injustice of a Nation whose so-called leaders commit the military
might of the United States against their brothers and sisters in the
liberation struggles of Africa, Asia, and South America. We are at the
crossroads in both our domestic and foreign policies. If the moral,
legal, and political weight of the American Government is not placed
on the side advancing rather than repressing the growing aspiration
of the dispossessed, there will simply be hell to pay.
Thank you very much, Mr. Chairman.
Senator Tunney. Thank you. The importance of the statements
that you have made, Mr. Lewis and Senator Bond, is that the people
that you represent now perceive the Federal judiciary to be changing
in its ability and its capacity to provide legal redress for the poor,
for the disadvantaged in the society, representing a significant change
in attitude over the past 15 or 20 years. Starting with Brown vs.
Board of Education, carrying it up to the present, the Federal judiciary
in the 1950's and the 1960's was perceived to be a route by which the
disadvantaged could find that their rights were being weighed and
35
redressed in an adequate fashion; but, in the last few years, there has
been a sense that the Federal judiciary is closing the doors to the poor,
the disadvantaged no longer being able to seek redress of wrongs in
the Federal judiciary.
Is that a fair statement, a fair conclusion to reach from what you
have been saying?
Mr. Bond. Yes, it is, Mr. Chairman.
Senator Tunney. I think that is very important for us to under-
stand, because one of the things that I mentioned in my opening
statement — and you were not here — Senator Bond, was that earlier
this year there was a St. Paul conference sponsored by the Judicial
Conference of the United States and the Conference of Chief Justices
and the American Bar Association. The discussion dealt with the
phrase "to ease the caseload in the courts," particularly the Federal
courts, and there was very little discussion about access to the justice
S3rstem. 1 said that the conference would have best been titled the
causes of judicial dissatisfaction with the populous: 1 think that it is
ironic that we should have had a conference in which the main source of
inspiration was to keep the public from getting into the courts, the
Federal courts in particular, rather than a discussion as to how the
courts could better serve the rights and the interests of our citizenry.
I say it is ironic because we hear so much and have heard so much
about "power to the people" and "self-determination" and "rights of
individuals to choose their own way," and we are also hearing a
remarkable amount now about the responsibility of the individual,
particularly as it relates to income maintenance programs; I am just
wondering how you can have individual self-reliance and responsi-
bility if access to one of the major institutions by which individuals
can seek redress for perceived wrongs is denied to them.
Mr. Bond. I think, Senator, the answer is that you cannot. What
you described is part, really, of a national withdrawal of the commit-
ment of 10 years ago, and it effects, sadly, not only the Federal
judiciary, but I think the people throughout the American system, in
education, in business — well, throughout the whole of American
society.
Senator Tunney. I agree with you.
I want to thank you very much, all of you, for being here. I appre-
ciate your testimony.
Mr. Bond. Thank you.
Senator Tunney. Our next witness is Rhoda Karpatkin, the exec-
utive director, Consumers Union.
TESTIMONY OF RHODA KARPATKIN, EXECUTIVE DIRECTOR,
CONSUMERS UNION
Ms. Karpatkin. Mr. Chairman, on behalf of Consumers Union I
want to express my appreciation for your invitation. We welcome an
opportunity to voice again our concern that access to justice has been
seriously narrowed by recent Supreme Court decisions affecting
consumers and to focus attention on some weaknesses in the admin-
istration of justice which require prompt solution.
All of the witnesses at this hearing are likely to be speaking for the
consumers of the justice system. Consumers Union will address some
special concerns affecting our particular consumer constituency.
36
I should say, by the way, that a consumer perspective on justice is
not a novel approach. Edmund Cahn declared in the 1960's that we
needed to disavow the processors' point of view in dealing with the law,
which he called the imperial or official point of view, and he said, "A
free and open society calls on its official processors to perform their
functions according to the perspective of the consumers."
Consumers need the Federal courts. It is essential that the courts be
available for consumer, environmental and other public interest cases:
not alone for 1-on-l dispute resolution, but for large-scale redress.
Large-scale redress does more than dispense simple justice. It presents
one of the few opportunities to fashion and enforce meaningful deter-
rents to abuse of the consumer. A series of Supreme Court decisions
have closed off major avenues for such redress, and accordingly, have
vitiated the deterrent effect that effective redress mechanisms provide.
Chief Judge Irving Kaufman of the Court of Appeals for the Second
Circuit recently called the social costs of insufficient access to the
courts staggering, and we agree with that appraisal.
I fear there will be no enduring solution to the massive and myriad
kinds of abuses visited on consumers unless we develop workable
deterrents. While courts, legislators, and public interest groups must
continue to focus on consumer complaint redress mechanisms, the
compelling need today is to develop a system to avert such complaints.
We need a guiding philosophy, a goal, of complaint avoidance: a sys-
tem of laws, procedures, attitudes, and punishments dictated by an
insistence that after-the-fact remedies are second best to prevention.
It is our belief that there is within reach now a panoply of proposed
legislation and available legal doctrine which, if implemented, would
mitigate dissatisfaction with the administration of justice, and would
deter many of the wrongs which end up deluging courts and agencies
with demands for redress. And, of course, to the extent they failed to
deter, they would be effective in providing efficient redress to wronged
consumers.
Here are some of the proposals that we put before your subcommittee
this morning; I realize that many of them are either being considered
by other committees of this Congress, or perhaps not being considered
at all.
CLASS ACTIONS
The case for class actions hardly needs to be detailed. From the
point of view of discouraging large-scale bilking of consumers, the
consumer class action is one of the few remedies that holds any
promise as an economic deterrent. It is, as Justice Douglas wrote in
his dissent in the Eisen case, "one of the few legal remedies the small
claimant has against those who command the status quo." And this
interest in the small claimant as compared with those who command
the status quo is not a new interest. My son is reading the book
History Began at Sumer and in that book there is a reference to a
law code that was developed 150 years before Hammauabi, and that
says, "The man of one sheckel should not fall prey to the man of 60
sheckels," and I think that that philosophy should guard Congress
approach to class action legislation.
From an individual consumer point of view, class actions are just in
that each victim is compensated and the remedy fits the wrong; they
37
are efficient and provide economies of scale; they are affordable and
enable small consumers to unite against large wrongdoers, and
successful plaintiffs can have their legal fees awarded by the court
out of an award or settlement. As an unlooked for benefit, they may
engender a kind of collective bargaining for reforms between plaintiffs
and defendants, the consumer having achieved for a brief moment
the clout of a large group with legal representation.
It is a blow to many victimized consumers and to the public interest
that several Federal court decisions have closed the door to this
particular form of access and its potent deterrent value.
In Snyder v. Harris, the Supreme Court held that separate and
distinct claims may not be abrogated to provide the $10,000 jurisdic-
tional amount. In Zahn v. International Paper Co., the Supreme Court
held that multiple plaintiffs with separate and distinct claims must
each satisfy the jurisdictional amount. In the Eisen case, the Supreme
Court required that individual notice must be sent to all class members
whose names and addresses may be ascertained through reasonable
effort, even if the cost would be prohibitive to the plaintiff.
It is clear from those decisions that effective legislation is essential
to remove major barriers to class actions which implement existing
consumer rights and to provide the kind of deterrence that the public
interest requires. I think it is perhaps one of the national scandals of
our time that no class action legislation has emanated and been
passed by Congress to correct the situation.
PARENS PATRIAE LEGISLATION
Recently, the New York Times reported on a strikingly effective
lobbying group, the Business Roundtable, composed of leaders of the
country's giant corporations. It had singled out a few key issues,
inundated Congress with top executives and big dollars, and closed in
on its target with a singleminded effectiveness that let everyone know
what power really means. This group, according to the Times, selected
pending parens patriae legislation, as one of its major targets. We
agree with that priority.
This legislation is intended to provide statutory authority to make
antitrust law violators answerable to individual members of the con-
suming public, by authorizing State attorneys general to sue violators
of antitrust laws in Federal courts for treble damages on behalf of
citizens of their States, with the damages to be distributed by the
State to the individual victims.
Consumers Union commented in favor of such legislation in 1975,
when it was before the House Judiciary Committee Subcommittee on
Monopoly, and we testified on behalf of S. 1284, as well. We believe
such legislation is a potent deterrent against antitrust law violations,
an area where consumers have been abused and economically damaged
again and again.
SUITS IN THE PUBLIC INTEREST PRIVATE ATTORNEYS GENERAL
The crusading lawyer is a reassuring if not exalted symbol in our
society, and helps make the crusading client effective. Foundation
funded public interest law firms added dramatically to the small
38
number of lawyers available to bring litigation in the public interest,
to protect and enforce consumer, environmental, and other rights of
the public, and to redress the unconscionable paucity of lawyers able
to afford to serve the public interest. But foundation funding has
always been recognized as temporary. Public interest lawyers are
essential to vindicate the public interest and advance the cause of
justice. They can survive and flourish only if funding is available for
their litigation.
Attorney's fee awards in specific cases are an excellent method of
achieving this result, and one that had raised considerable expecta-
tions on the part of the public interest bar. Unfortunately, in the
Alyeska Pipeline case, the Supreme Court held that citizen groups
acting as private attorneys general in suits vindicating public policies
cannot be awarded attorneys fees in the absence of specific authoriza-
tion by legislation. Until that decision, public interest firms had an-
ticipated awards of substantial attorneys fees in litigation that was
pending, and in litigation to be brought.
Indeed, in December 1975, the council for public interest law
reported the results of a questionnaire to about 90 public interest law
programs. Anticipated fee losses as a result of the Alyeska decision
amounted to millions of dollars. That decision, which results in denial
of access to justice for consumers, needs to be met speedily by appro-
priate Federal legislation.
Peter Schuck, director of CU's Washington office, in his testimony
on S. 2715, which authorizes awards of attorneys' fees and costs for
agencies and courts in certain actions, stated that such fee awards are
an efficient and equitable means of supporting public interest litigation.
While we believe that agencies already possess the power to award
such fees, we strongly support the legislation, nevertheless, with some
changes, and regard it as urgently needed with respect to court
awarded fees.
Next, control of corporate crime and corruption : While it is difficult
to total up the cost to consumers of the millions of dollars in bribes
and payoffs paid by corporate officials, and the millions lost to con-
sumers because of price fixing and other antitrust violations, the costs
are as tangible as that of the garment destroyed by a dry cleaner. This
highly sophisticated form of crime is generally not visible; its perpetra-
tors are more highly placed than the customary street mugger, and the
corporate structure in the United States envelops them in a mantle of
protection.
We need large scale reform in several areas. We need significant and
relevant penalties imposed in an evenhanded way so that the purse
snatcher and the corporate criminal are equal before the law. Even
those of us who question the deterrent value of many harsh criminal
penalties, take a more optimistic view of the deterrent value of such
penalties for corporate crime. There are many options, and we hope
legislation will evolve to control corporate corruption effectively. In-
deed, Business Week magazine has called for legislation that would
"subject executives to criminal penalties for 'reckless default' in their
supervision of corporate actions," thus ending "the comfortable im-
munity of the company president who finds it convenient not to ask
the sales manager about price-fixing deals or who is 'too busy' to read
the engineer's report on safety problems with a new product."
We need to stop regarding the country's major corporations as
39
friendly neighborhood businesses. They wield the powers of quasi-
governments or super-governments, not only nationally, but inter-
nationally, and require the kinds of control appropriate to such awe-
some power.
AGENCY FOR CONSUMER ADVOCACY
While today's vogue words may be deregulation, a clear case must
continue to be made for this agency, which will redress the anticon-
sumer imbalance which now characterizes Government decision-
making and which leaves consumers certain the Government acts in
ignorance or disregard of their interests.
Effective resolution of consumer controversies: It is not only the
large-scale forms of deterrent and redress that have eluded aggrieved
consumers. While consumers as a class have had the courthouse doors
closed to them repeatedly, the individual consumer has not fared much
better. The courts, the legal profession and the legal system controlled
by the profession have failed the ordinary consumer, the individual
with a complaint. A major cause of consumer dissatisfaction with the
administration of justice is the unavailability of effective forums for
the redress of individual grievances, especially small grievances.
Efforts have been made, of course, and the number of forums are
considerable, but their outreach leaves much to be desired, as does their
effectiveness. The road to consumer redress, indeed, is such a labyrinth
of confusion, murkiness and un accessibility that a flourishing business
has developed in guidebooks on how to complain. Unfortunately,
none of the more than half-dozen now sold really points the injured
consumer to surefire means of redress.
There are many steps that need to be taken. We should facilitate
the creation and sound operation of a network of small claims courts.
They should be prevented from being a debt collecting agency. An
interstate system is needed. Section 8 of S. 2069, the Consumer
Controversies Resolution Act, sets forth an excellent list of criteria
for an effective small claims system, and I will not repeat them. The
legislation does not, however, sufficiently protect against possible
abuses of the intent of the system by corporate plaintiffs. New York's
flat prohibition against corporate plaintiffs has helped keep its small
claims court a consumer court. And Consumers Union, in its 1971
article, suggested restrictions on the number of times a small claims
court could be used by a particular plaintiff.
We should explore forums for resolution and adjudication of com-
plaints outside our traditional court system. The Consumer Contro-
versies Resolution Act is one sound approach, but it must be funded
sufficiently to make it meaningful. Systems for arbitration should be
considered, although we must be aware of the damages that can be
brought by anticonsumer precommitment clauses, which are now
cropping up. If there is a movement in favor of considerable arbitra-
tion effort, we have to be careful to evaluate it as we go along to make
sure that it is effective and fulfills its promise.
Study, experimentation, and the support of the organized bar are
all surely needed to develop and try a variety of ways to make the
consumer whole.
DEJUDICIALIZE
Some court or contested proceedings are anachronistic. The concept
of an inexorable relationship between fault and remedy has already
40
been questioned, and the concept of no-fault is a promising one. We
need new approaches. Judge Kaufman discussed a kind of no-fault
approach to recoveries for consumer complaints : a government agency
would reimburse defrauded consumers immediately and then would
proceed against the defendants.
Some matters can be shifted from courts to administrative agencies.
Simple probates and adoptions, and no-fault divorces, for example,
should be considered for processing as clerical, rather than legal
services.
LEGAL SERVICES FOR ALL CONSUMERS WHO NEED THEM
An American Bar Association committee published in 1974 a 228-
page summary entitled, "The Legal Needs of the Public." It makes a
persuasive case that many who have needed legal services have failed
to consult lawyers. The reasons are numerous. Some consumers cannot
afford legal services; others do not know they need lawyers, or cannot
find lawyers they can afford. We need to make justice more accessible
by making legal services more available.
In the private sector, prepaid legal services, group legal services,
and legal clinics must be encouraged. In the public sector, legal serv-
ices must be made available to those who cannot otherwise afford
them. The U.S. Riot Commission reported that one of the most in-
tense grievances underlying the ghetto riots of 1967 was the unavail-
ability of legal services to ghetto residents both for litigation and for
other purposes. We should not need another series of riots to prod the
creation and maintenance of necessary legal services for the poor.
The cost of legal services must be reduced. Economies possible by
use of paralegals, by economies of scale, by modern technologies or
pooled resources, must be sought and implemented. Consumers Union
has urged that an end to barriers to truthful advertising by lawyers
would stimulate price competition and reduce the cost of legal services
accordingly.
Consumers of legal services need to be made more aware of what
their legal rights are and what lawyers can do for them. Bar association
educational programs, to the extent that they exist, have generally
failed to do this. Ending restrictions on truthful lawyer advertising is
one way to disseminate information, and is a necessity. Justice De-
partment speakers have characterized these restrictions as violations
of the antitrust laws. Directories containing important information
about lawyers and their fees are also necessary. Consumers Union is
litigating restrictions on directories and lawyer advertising in two
forums.
IMPROVE THE ADMINISTRATION OF JUSTICE IN ALL COURTS AT ALL
LEVELS
We do not believe the administration of justice is improved by
closing the door in the face of litigants who have claims for which the
Constitution or statutes mandate redress. New methods, efficient
41
systems and modern technologies can do for the courts what many
consumers expect they will do for law firms: make them more efficient
and less expensive.
DELAWYERING
We need to reduce lay dependence on lawyers. While some tasks
are so complex that they must be performed by lawyers, others can
be simplified. A new system of title registration, for example, as
discussed in the August 1975 issue of Consumer Reports, would
eliminate much of the need for legal services in land transfer.
We need to take a fresh look at the bar's customary disapproval of
do-it-yourself lawyering, and determine if some areas of the law lend
themselves to intelligent self-help by lay people.
I want to compliment this subcommittee for providing an oppor-
tunity to air these important issues.
This country needs to find ways to move closer to the day that
Roscoe Pound sought in the speech which gave this hearing its title —
A near future when our courts will be swift and certain agents of justice, whose
decisions will be acquiesced in and respected by all.
Senator Tunney. Thank you very much, Ms. Karpatkin.
I think that your statement is excellent. Obviously a great deal of
thought went into it. It makes a real contribution to our hearing.
Perhaps one of the reasons I feel it is so good is because I agree with
almost all of it.
I just cannot help but feel that in the last few years, as a result
of our Supreme Court decisions, there has been a great restriction
on the ability of consumers to seek redress of grievances in the Federal
judiciary; I think that the Alyeska case was particularly pernicious,
from my viewpoint, in this regard, and I am hoping that we are
going to be able to get specific legislation through the Congress
which will allow the awarding of attorney's fees in these public
interest cases not only environmental cases, but civil rights cases
as well. I have proposed legislation, as you may know, to achieve
that, and I hope we can get it through the Judiciary Committee soon.
There are many other areas as well, and now that the Supreme
Court has said that the Congress is going to have to act affirmatively
in the award of attorney's fees, judges no longer having discretion,
it is important that we develop a comprehensive approach in this
regard. I will be working with the staff of this subcommittee and
persons such as yourself not only on specific one-shot bills to redress
a particular grievance — such as in civil rights cases or proceedings
before administrative panels or environmental cases — but on a more
general approach whereby we could give to the courts guidelines for
the awarding of attorney's fees.
I want to thank you for being here. I appreciate it very much. We
look forward to working with you.
Ms. Karpatkin. Thank you, Senator.
[The prepared statement of Ms. Karpatkin follows:]
42
Prepared Statement of Rhoda H. Karpatkin, Executive Director,
Consumers Union of United States, Inc.
Mr. Chairman and members of this distinguished Subcommittee: On behalf of
Consumers Union,1 I wish to express my appreciation of your invitation to express
our views on Causes of Popular Dissatisfaction With the Administration of Justice.
We welcome an opportunity to voice again our concern that access to justice has
been seriously narrowed by recent Supreme Court decisions affecting consumers,
and to focus attention on some weaknesses in the administration of justice which
require prompt solution.
In our articles in Consumer Reports, in recent years, we have devoted considerable
space to a variety of consumer services. It is only a small leap, therefore, to take a
consumerist look at a system created to deliver justice to its consumers. Such a
perspective does not tread new ground. Indeed, Edmund Cahn, writing in 1963,
called attention to a new perspective on the law caused by the democratic revolu-
tion. Replacing the processors point of view (the "imperial or official") was the
consumer perspective. "A free and open society calls on its official processors to
perform their functions according to the perspective of the consumers," he wrote.
All of the witnesses at this hearing are likely to be speaking for the consumers of
the justice system. Consumers Union will address some special concerns affecting
our consumer constitutency.
Consumers need the federal courts. It is essential that the courts be available
for consumer, environmental and other public interest cases: not alone for one-on-
one dispute resolution, but for large-scale redress. Large-scale redress does more
than dispense simple justice. It presents one of the few opportunities to fashion
and enforce meaningful deterrents to abuse of the consumer. The series of Supreme
Court decisions discussed below have closed off major avenues for such redress
and, accordingly, vitiated the deterrent effect that effective redress mechanisms
provide.2
The seriousness of this was recently underscored by Chief Judge Irving Kaufman
of the Court of Appeals for the Second Circuit. Speaking at the New York Univer-
sity Law School Bicentennial Conference on April 29, he noted: "Although we
tend to overlook the social costs of insufficient access to the courts and suboptimal
resolution of disputes, they are real costs nonetheless, and they are of staggering
magnitude. These costs must not be ignored simply because they do not appear
in official governmental budget documents or because they tend to be borne in
silence."
I fear there will be no enduring solution to the massive and myriad kinds of
abuses visited on consumers unless we develop workable deterrents. While courts,
legislators and public interest groups must continue to focus on consumer com-
plaint redress mechanisms, the compelling need today is to develop a system to
avert such complaints. We need a guiding philosophy, a goal, of complaint avoid-
ance: a system of laws, procedures, attitudes and punishments dictated by an
insistence that after-the-fact remedies are second best to prevention. As with
smallpox, consumers need to be immunized, in preference to being treated.
It is our belief that there is within reach now a panoply of proposed legislation
and available legal doctrine which, if implemented, would mitigate dissatisfaction
with the administration of justice, and would deter many of the wrongs which
end up deluging courts and agencies with demands for redress. And, of course, to
the extent they failed to deter, they would be effective in providing efficient redress
to wronged consumers.
Here are some proposals CU urges as part of a system to protect the consumer
with a mantle of deterrent and remedy:
CLASS ACTIONS
The case for class actions hardly needs to be detailed. From the point of view
of discouraging large-scale bilking of consumers, the consumer class action is one
of the few remedies that holds any promise as an economic deterrent. It is, as
1 Consumers Union is a nonprofit membership organization chartered in 1936 under the laws of the State of
New York to provide information, education, and counsel about consumer goods and services and the
management of the family income. Consumers Union's income is derived solely from the sale of Consumer
Reports (magazine and TV) and other publications. Expenses of occasional public service efforts may be
met, in part, by nonrestrictive noncommercial grants and fees. Tn addition to reports on Consumers Union's
own product testing, Consumer Reports, with its almost 2 million circulation, regularly carries articles on
health, product safety, marketplace economics, and legislative, judicial and regulatory actions which affect
consumer welfare. Consumers Union's publications carry no advertising and receive no commercial support.
1 Cases not referred to in the text are included in the Appendix to this testimony.
43
Justice Douglas wrote in his dissent in Eisen v. Carlisle and Jacquelin, "one of
the few legal remedies the small claimant has against those who command the
status quo." He urged its strengthening "with the view of creating a system of
law that dispenses justice to the lowly as well as those liberally endowed with
power and wealth."
From an individual consumer point of view, class actions are just, in that each
victime is compensated, and the remedy fits the wrong; they are efficient and
provide economies of scale. They are affordable, and enable small consumers to
unite to act against large wrongdoers; successful plaintiffs can have their legal
fees awarded by the court out of an award or settlement. As an unlooked for
benefit, they may engender a kind of collective bargaining for reforms between
plaintiffs and defendants, the consumer having achieved, for a brief moment, the
clout of a large group with legal representation.
The recently announced proposed settlement of a portion of a $5.5-million
class action suit against a group of New York department stores is an example.
The suit followed Justice Department price-fixing charges against the group, to
which they pleaded no contest, and paid fines. The sum of $1.2-million will be
divided among certain customers; the class numbers 550,000 members.
It is a blow to many victimized consumers and to the public interest that several
federal court decisions have closed the door to this particular form of access and its
potent deterrent value.
In Snyder v. Harris, 394 U.S. 332, 89 S. Ct. 1053 (1969), a class action by a cus-
tomer on behalf of herself and others similarly situated against a gas company to
recover overpayments, the Supreme Court held that separate and distinct claims
may not be aggregated to provide the $10,000 jurisdictional amount, i.e., where
each plaintiff has a claim under $10,000 but all claims added together total more
than $10,000.
In Zahn v. International Paper Co., 414 U.S., 94 S.Ct. 505 (1973), four property
owners sued a corporation for damages for alleged pollution of lake and damage to
property values. Only the named plaintiff met the $10,000 jurisdictional amount.
The Supreme Court held that multiple plaintiffs with separate and distinct claims
must each satisfy the jurisdictional amount and that any plaintiff who does not
must be dismissed from the action. This decision not only forbids aggregation, as
in the Snyder case, but requires dismissal of those whose claims are below the juris-
dictional amount, even though other litigants assert claims sufficient to invoke
federal jurisdiction.
In Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 94 S.Ct. 2140 (1974), a class
action suit was brought by odd-lot traders against brokerage firms, alleging viola-
tions of antitrust and securities laws. The Supreme Court held that in a class action
maintained in part on the basis that questions of law or fact common to members
of the class predominate over questions affecting only individual members, in-
dividual notice must be sent to all class members whose names and addresses may
be ascertained through reasonable effort, even if the cost is prohibitive, to give class
members an opportunity to request exclusion from the action or to participate in
its management.
It is clear from those decisions, that effective legislation is essential to remove
major barriers to class actions which implement existing consumer rights, and to
provide the kind of deterrents the public interest requires.
PARENS PATRIAE LEGISLATION
Recently, The New York Times reported on a strikingly effective lobbying group,
the Business Roundtable, composed of leaders of the country's giant corporations.
[The Times reported 158 corporate members; 63 of the nation's 100 top industrial
companies.] It had constructed a lobby which singled out a few key issues, in-
undated Congress with top executives and big dollars, and closed in on its target
with a singleminded effectiveness that let everyone know what power really means.
This group, according to the Times, selected pending parens patriae legislation
as one of its major targets.
I would suppose from its choice of priorities that the Business Roundtable
shares our view of the importance of this legislation, which is intended to provide
statutory authority to make antitrust law violators answerable to individual
members of the consuming public, by authorizing State Attorneys General to sue
violators of antitrust laws in federal courts for treble damages, on behalf of citizens
of their states, with the damages to be distributed by the state to the individual
victims.
44
Consumers Union commented in favor of parens patriae legislation when it was
before the House Judiciary Committee's Subcommittee on Monopoly, and testi-
fied in behalf of S. 1284 in 1975. We believe such legislation is a potent deterrent
against antitrust law violations — an area where consumers have been abused and
economically damaged again and again.
SUITS IN THE PUBLIC INTEREST (PRIVATE ATTORNEYS GENERAL)
The crusading lawyer is a reassuring if not exalted symbol in our society — and
helps make the crusading client effective. Foundation funded public interest law
firms added dramatically to the small number of lawyers available to bring litiga-
tion in the public interest, to protect and enforce consumer, environmental and
rights of the public, and to redress the unconscionable paucity of lawyers able to
afford to serve the public interest. But foundation funding has always been recog-
nized as temporary. Public interest lawyers are essential to vindicate the public
interest and advance the cause of justice, and can survive and flourish only if
funding is available for their litigation.
Attorneys' fee awards in specific cases are an excellent method of achieving this
result. The Director of Consumers Union's Washington Office, Peter Schuck,
testifying on S. 2715 (which would authorize the award of attorneys' fees and costs
by agencies and courts in certain cases), described in detail the nature of the litiga-
tion and the funding problems of public interest law firms. He has added our
testimony to the strong case made in previous testimony before this Subcom-
mittee, for the need to remedy a situation where the resources are both insufficient
and insecure:
"The greater availability of attorneys' fee awards, however, is a singularly effi-
cient and equitable means for accomplishing this objective. It is efficient in that it
rewards a "public interest law firm" directly for its role in a particular situation
deemed worthy of support, in contrast to a system of governmental support for the
organization in general, which would be an inefficient approach. The fee award is
"targeted" in a way that ensures that incentives will not be distorted but will be
properly discriminating.
"One need only consider the nature of 'public interest' litigation and interven-
tion in agency proceedings to appreciate that such an approach is equitable as well.
Typically, such litigation is quite expensive, perhpas even more so than civil litiga-
tion generally, which itself is far beyond the means of most individuals and
organizations."
Indeed, fee awards have already been introduced at the Administrative level,
with the FTC's reimbursement of the cost of citizen participation in rulemaking
proceedings.
Unfortunately, in the case of Alyeska Pipeline Co. v. Wilderness Society, 95
S.Ct. 1612 (1975), the Supreme Court held that citizen groups acting as "private
attorneys general" in suits vindicating public policies cannot be awarded attorneys
fees, in the absence of specific authorizing legislation. Until that decision, public
interest firms had anticipated awards of substantial attorneys fees in pending
litigation.
Those fees were regarded by such law firms as a prerequisite to maintaining
environmental, consumer, civil rights and other public interest litigation. In
December, 1975, the Council for Public Interest Law reported the results cf a
questionnaire to about 90 public interest law programs, about half of whom were
affected by the decision; anticipated fee losses amounted to millions of dollars.
That decision, which results in a denial of access to justice for consumers, needs
to be met speedily by appropriate federal legislation.
Mr. Schuck, in his testimony on S. 2715, stated our belief that agencies already
possess power to award such fees. We strongly support the legislation nevertheless,
and regard it as urgently needed with respect to court awarded fees. (Mr. Schuck's
testimony outlines several changes we recommend, and is available if you wish it.)
CONTROL OF CORPORATE CRIME AND CORRUPTION
While it is difficult to total up the cost to consumers of the millions of dollars
in bribes and payoffs paid by corporate officials, and the millions lost to consumers
because of price-fixing and other antitrust violations, the costs are as tangible as
that of the garment destroyed by a dry cleaner. This highly sophisticated form of
crime is generally not visible, its perpetrators are more highly placed than the
customary street mugger, and the corporate structure in the United States
envelops them in a mantle of protection.
45
But the need for deterrent and remedy has been placed before us in a dramatic
and insistent way by newspaper reports of recent months. Whether we treat this
narrowly as an economic crime only {The Wall Street Journal has characterized
bribery as "an assault on the price mechanism that produces an uneconomic
allocation of resources"), or recognize it for the epidemic of immorality it has
turned out to be, we need large-scale reforms in several areas:
We need significant and relevant penalties imposed in an evenhanded way.
Even those of us who question the deterrent value of many harsh criminal penal-
ties, take a more optimistic view of the deterrent value of such penalties for
corporate crime. There are many options, and we hope legislation will evolve to
control corporate corruption effectively. Ralph Nader has urged a new division of
corporate crime, in the Department of Justice, to deter or ferret out the elegant
muggers from America's most distinguished business leaders. Indeed, Business
Week magazine has called for legislation that would "subject executives to criminal
penalties for 'reckless default' in their supervision of corporate actions," thus
ending "the comfortable immunity of the compan}^ president who finds it con-
venient not to ask the sales manager about price-fixing deals or who is 'too busy'
to read the engineer's report on safety problems with a new product."
We need to stop regarding the country's major corporations as friendly neigh-
borhood businesses. They wield the powers of quasi-governments or super-govern-
ments, not only nationally, but internationally, and require the kinds of control
appropriate to such awesome power. Ralph Nader has made a case for federal
corporate charters that merits serious consideration.
We surely need more public members on the boards of major corporations,
diligently executing their duties and aware of their accountability to the public.
Suits by the Center for Law in the Public Interest, in California, achieved this
result with respect to two corporations, in recently concluded public interest
litigation.
AGENCY FOR CONSUMER ADVOCACY
While today's vogue word may be deregulation, a clear case must continue to
be made for an agency to redress the anti-consumer imbalance which now charac-
terizes goverment decision-making, and which leaves consumers certain the
government acts in ignorance or disregard of their interests. The Agency for
Consumer Advocacy will provide to consumers representation and a voice in the
decision-making process, and at the crucial point before the decision is made.
EFFECTIVE RESOLUTION OF CONSUMER CONTROVERSIES
It is not only the large-scale forms of deterrent and redress that have eluded
aggrieved consumers. While consumers as a class have had the courthouse doors
closed to them repeatedly, the individual consumer has not fared must better. The
courts, the legal profession and the legal system it controls, have failed the ordi-
nary consumer — the individual with a complaint. A major cause of consumer
dissatisfaction with the administration of justice is the unavailability of effective
forums for the redress of individual grievances, especially small grievances.
Efforts have been made, of course, and the number of forums are considerible:
small claim courts, state, city and county consumer affairs officers, attornej's-
generals frauds divisions, business review boards, radio, newspaper and television
action lines; voluntary consumer complaint centers, Congressional offices, union
complaint handling systems, ombudsmen, company hot-lines, and so on. But
studies show that too many consumers are unaware of what is available. The
proliferation of institutions processing or hearing complaints may be large, but
their outreach leaves much to be desired, as does their effectiveness.
Indeed, the road to consumer redress is such a labyrnth of confusion, murkiness
and unaccessibility that a flourishing business has developed in guidebooks on
how to complain. Unfortunately none of the more than half-dozen now sold
really points the injured consumer to sure-fire redress.
There are many steps that need to be taken. Not all, of course, fall within the
ambit of Congress.
FACILITATE THE CREATION AND SOUND OPERATION OF A NETWORK OF SMALL CLAIMS
COURTS
Prevent them from being debt-collecting agencies. An interstate system is
needed. Section 8 of S. 2069, the Consumer Controversies Resolution Act, sets
forth an excellent list of criteria for an effective small claims system, and I will
46
not repeat them. The legislation does not, however, sufficiently protect against
possible abuses of the intent of the system by corporate defendants. New York's
flat prohibition against corporate plaintiffs has helped keep its Small Claims Court
a consumer court. And Consumers Union, in its 1971 article, suggested restrictions
on the number of times a small claims court could be used by plaintiffs.
EXPLORE FORUMS FOR RESOLUTION AND ADJUDICATION OF COMPLAINTS OUTSIDE
OUR TRADITIONAL COURT SYSTEM
The Consumer Controversies Resolution Act is one approach, but it must be
funded sufficiently to make it meaningful. Systems for arbitration should be
considered, although we must be aware of the damages of the anti-consumer
pre-commitment clauses now cropping up. The Chief Justice of the United States,
at the Pound Conference, urged new tribunals to adjudicate customary consumer
complaints, and the Association of the Bar of the City of New York's Special
Committee on Consumer Affairs offered a detailed proposal in 1972 for a new
tribunal for the resolution of consumer complaints. (Record of the Association
of the Bar of the City of New York 419). Study, experimentation and the support
of the organized bar are all surely needed to develop and try a variety of ways to
make whole the consumer with a valid complaint.
DEJUDICIALIZE
Some court or contested proceedings are anachronistic. The concept of an
inexorable relationship between fault and remedy has already been questioned,
and the concept of no-fault is a promising one. The New York Small Claims Court
uses volunteer lawyers for voluntary arbitrations. Judge Kaufman discussed a
kind of no-fault approach to recoveries for consumer complaints: a government
agency would reimburse defrauded consumers immediately, and would then
proceed against the merchant.
Some matters can be shifted from courts to administrative agencies: simple
probates and adoptions, and no-fault divorces, for example, should be considered
for processing as clerical, rather than legal, services.
IMPROVE THE ADMINISTRATION OF JUSTICE IN ALL COURTS AT ALL LEVELS
Where that means more judges, add them. It surely means striving for new
modes and efficiencies in the way our courts are administered. We do not believe
the administration of justice is improved by closing the door in the face of liti-
gants who have claims for which the Constitution or statutes mandate redress.
New methods, efficient systems and modern technologies can do for the courts
what many consumers expect they will do for law firms: make them more efficient
and less expensive. Judge Irving Kaufman advanced some thoughts and proposals
on this at his New York University Bicentennial Conference speech. More study
is needed on how to make our courts more efficient and responsive.
LEGAL SERVICES FOR ALL CONSUMERS WHO NEED THEM
The American Bar Association's Special Committee to Survey Legal Needs
published in 1974 a 228-page summary entitled, "The Legal Needs of the Public."
It makes a persuasive case that many who have needed legal services have failed
to consult lawyers. The reasons are numerous. Some consumers can't afford legal
services. Others don't know they need lawyers, or can't find lawyers they can
afford. We need to make justice more accessible by making legal services more
available:
Develop and nurture programs which bring lawyers to people who need them
when they need them, and at fees that are reasonable and affordable. In the
private sectoT, prepaid legal services, group legal services, and legal clinics must
In encouraged. In the public sector, legal services must be made available to those
who can't otherwise afford them. Following the 1968 ghetto riots, the U.S. Riot
Commission reported that one of the most intense grievances underlying the riots
of 1967 was the unavailability of legal services for ghetto residents, both for
litigation and for other purposes. We should not need another series of riots to
prod the creation and maintenance of necessary legal services for the poor.
The cost of legal services must be reduced. Economies possible by use of para-
legals, by economies of scale, by modern technologies or pooled resources, must
be sought and implemented. Consumers Union has urged that an end to barriers
47
to truthful advertising would stimulate price competition, and reduce the cost of
legal services accordingly.
Consumers of legal services need to be made more aware of what their legal
rights are and what lawyers can do for them. Bar association educational programs,
to the extent they exist, have generally failed to do this. Ending restrictions on
truthful lawyer advertising is one way to help disseminate information. Direc-
tories containing important information about lawyers and their fees are also
necessary. Consumers Union has urged that such restrictions on directories and
advertising should be lifted, and is litigating that issue in two forums.
DELAWYERING
We need to reduce lay reliance on lawyers. While some tasks are so complex
that they must be performed by lawyers, some can be simplified. A new system of
title registration, for example, as discussed in the August, 1975 issue of Consumer
Reports, would eliminate much of the need for legal services in land transfer.
And the Chief Justice too, has called for simplification in this area.
We need to take a fresh look at the bar's customary disapproval of do-it-
yourself lawyering, and determine if some areas of the law lend themselves to
intelligent self-help by lay people. Statutory standardized forms for certain
common transactions, in clear language, should be considered.
I want to compliment this Subcommittee for providing an opportunity to air
these important issues. While we have not covered the entire field with this
listing, and some of our proposals may fall outside your scope, we have, I hope,
suggested ways to move closer to the day Roscoe Pound sought in the article
which gave this hearing its title: "a near future when our courts will be swift
and certain agents of justice, whose decision will be acquiesced in and respected
by all."
[Appendix]
Some Recent Cases Affecting Consumers, Limiting Access to the Courts
Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 94 S. Ct. 2925 (1974)
Citizens and an association of present and former members of the Armed
Forces Reserve brought a class action on behalf of all citizens and taxpayers
alleging that simultaneous membership in Congress and the Armed Forces
Reserve violated the Incompatability Act.
The Supreme Court held there was no standing to sue as citizens where the claim
implicates only the "generalized interest of all citizens in constitutional governance
and is thus merely an abstract injury." It held there was no standing to sue as
taxpayers since they failed to establish a "logical nexus" between taxpayer status
and claim.
Warth v. Seldin, U.S., 95 S. Ct. 2197 (1975)
Rochester community group, Rochester taxpayers, Rochester area low and
moderate income persons, Rochester home builders, and not-for-profit Housing
Council in Monroe County were all held to have no standing to challenge zoning
ordinances of Rochester suburb which effectively excluded all people of low and
moderate incomes from living in the town. The Court held that petitioners must
show they have personally been injured, and that absent the allegedly unconstitu-
tional actions of respondents, there is a substantial probability that they could
purchase or lease in the suburb.
Hawaii v. Standard Oil Co. of California, 405 U.S. 251, 92 S. Ct. 885 (1972)
State of Hawaii sued under the Clayton Act as parens patriae for injunctive and
monetary relief against overcharges paid by its citizens to Standard Oil.
The Court held that while state may sue as parens patriae to prevent or repair
harm to its "quasi-sovereign" interests under a common law right of action,
Section 4 of the Clayton Act does not authorize a state to sue for damages for
injury to its general economy caused by antitrust violations. (Injury to general
economy is not an injury to state's "business or property" within the terms of
Section 4.)
Cort v. Ash, U.S. 95, S. Ct. 2080 (1975)
Derivative action by stockholders against corporation for illegal corporate
campaign contributions. The Supreme Court held that Federal Elections Cam-
paign Act did not create a private right of action for such suits.
48
Blue Chip Stamps v. Manor Drug Store, 421 U.S. 723, 95 S. Ct. 1917 (1975)
An antitrust consent decree required Blue Chip to offer common stock to
retailers. Manor Drug alleged that it was dissuaded from purchasing stock by an
overly pessimistic appraisal of the new business. Plaintiff sued for damages under
SEC rule 10 b-5. The Court held that plaintiff lacked standing to sue, because it
was neither a purchaser nor seller as defined in the Act. Mr. Justice Blackmun,
dissenting, stated :"In doing so, the Court exhibits a preternatural solicitousness
for corporate well being and a seeming callousness toward the investing public
quite out of keeping, it seems to me, with our own traditions and the intent of the
securities law." (421 U.S. 723, 750)
Senator Tunney. Our next witness is Thomas F. Field, executive
director, Tax Analysts and Advocates, and James Dale Davidson,
executive director, National Taxpayers Union.
I am going to ask you, if you could, to either read your statements
quickly or abbreviate them a bit, because we have got time problems.
Thank you very much.
TESTIMONY OF THOMAS F. FIELD, EXECUTIVE DIRECTOR, TAX
ANALYSTS AND ADVOCATES
Mr. Field. Mr. Chairman, thank you very much for this oppor-
tune to address the subcommittee. I have only two brief points.
First, it is my strong view that Internal Revenue Service adminis-
trative decisions should be subject to judicial review in all cases, not
just in those cases in which revenue is raised as a result of the decision.
My second point is that the Internal Revenue Service should not
be allowed to push ordinary citizens around, without hope of judicial
review, just because they happen to owe no tax.
I would like to discuss each of those two points, Mr. Chairman,
very briefly.
The Internal Revenue Service is thought of as an agency that
raises money. But, in addition, the Internal Revenue Service is also
able to give money away by administrative determinations. I have
listed in my statement^ several instances in which the IRS has unilater-
ally, without public hearing, given away hundreds of millions of dollars
to special interest claimants through IRS rulings. The most prominent
example, and one which we are currently seeking to litigate in court,
is the set of foreign tax credit rulings for oil firms which go back to the
early 1950's. Those rulings, I think, are quite clearly illegal. They
were illegal in their inception. And the facts as to the way in which
foreign oil tax credits are now generated make it clear that they are
still illegal. Nevertheless, the courts have held that no one has a right
to challenge those Internal Revenue Service rulings. Now that
judicial ruling is on appeal in a case in which my organization, Tax
Analysts and Advocates, and I personally, are plaintiffs. But to this
point the court's decision is that when the IRS gives away money to
special interest claimants that give away is beyond judicial review.
In concluding on this point, I would like to observe that I can think
of nothing that is more calculated to inspire cynicism about the role
of our courts in our society than the spectacle of an Internal Revenue
Service which is apparently beyond judicial control when it issues
patently illegal rulings thai grant enormous tax favors to powerful
special interests.
Senator Tunney. May I just stop you there?
49
It would require a very simple amendment of the Internal Revenue
Code to correct that situation; would it not?
Mr. Field. The problem that blocks taxpayers from challenging
IRS administrative action when the result of that action is to lose
revenue is the doctrine of standing, which is, of course, a doctrine of
judicial creation. It seems to me the problem does not in the first
instance have its root in the Internal Revenue Code.
Senator Tunney. Well, then it would be a very simple amendment
to the basic law, the Rules of Civil Procedure, to have standing given
to an individual taxpayer.
Mr. Field. It would, Senator. It seems to me that it is the Judicial
Code on which we want to focus our attention. I might add that I
think that a statutory cure for the problem of taxpayer standing is
very much needed. The Supreme Court has vacillated so frequently
on this issue of standing in the last decade, has created such a hash
with its conflicting decisions, that it seems to me that it is time for
Congress to step in and bring clarity to this very important area of the
law.
Now, with regard to my second point. I mentioned that I do not
think the IRS should have the right to push ordinary citizens around,
without hope of judicial redress, just because the}^ do not happen to
owe any tax. You might say, "Well, how can that happen?"
Let me give you by way of answer three specific instances. First
of all, in the early years of this decade the Internal Revenue Service
began to issue what were known as "private academy rulings"; they
basically said that you may organize a segregated private academy
and enjoy tax-exempt status even though you exclude blacks or other
minorities. That set of rulings was successfully challenged in court
in a case known as McGlotten v. Conally, in which black plaintiffs
challenged the right of the IRS to issue those rulings. I think the
significance of that decision is that there is nothing inherently non-
justiciable about an IRS ruling.
The second instance in which the rights of non-payers have been
affected by IRS action is now before the Supreme Court in a case
called Eastern Kentucky Welfare Rights Organization v. Simon.
EKWRO is the acronym of the organization. In the EKWRO case,
welfare recipients in eastern Kentucky are challenging the right of the
Internal Revenue Service to grant charitable status to a hospital which
refuses to treat poor patients. The question on which the government
has asked Supreme Court review is the question whether the individ-
uals in a community affected by an IRS ruling granting charitable
status to a hospital, even though the hospital announces a decision not
to allow poor people to be treated there, can protest that ruling in
court. I think it obvious that in such a situation they should be
allowed to protest.
A third situation, and one which we have unsuccessfully litigated in
the courts, is the censorship of our own weekhT tax news magazine,
which we publish for the press. We are a tax exempt organization, and
as a consequence, we owe no taxes to the Federal Government of any
sort. Nevertheless, as a precondition to maintaining tax exempt status,
we are required each week to remove from our publication anything
that could be construed to be a comment on legislation. I personally
have wielded the blue pencil. Sometimes, too, I have published things
50
that I did not particularly want to publish, just so that we would have
some protective coloration in the event of an IRS audit.
The problems here are twofold: First, the IRS has never spelled out
the rules in this area. Former chief counsel of the IRS, Mitchell
Rogovin, in an affidavit that we will soon be filing in court, has
testified that the reason the IRS has never spelled out the rules is that
they like to keep them vague. There is a doctrine, a constitutional
doctrine under the first amendment, known as "void for vagueness",
and the statute that we sought to challenge 2 years ago is, in our
view, precisely that, void for vagueness. And yet that statute requires
us to censor a publication which is a major organ for informing the
press about Federal tax decisions.
The courts have held that unless we choose first to violate the law,
incur IRS audit and penalties, and undergo automatic bankruptcy,
because all of our foundation support at that point would be reclaimed
under the Tax Reform Act of 1969, unless we did those things, unless
we underwent the dangers of IRS audit and bankruptcy, we could not
get into court to protest the censorship of our publication. As a result,
we have continued, week by week, to censor a publication designed to
inform the press about Federal tax issues.
Mr. Chairman, I think it is outrageous that an organization such as
ours, which seeks to monitor the actions of the Internal Revenue
Service, should find itself subject to censorship by the very Federal
agency which it seeks to monitor and then, on top of that, should find
itself thrown out of court and in effect deprived of any enforceable
first amendment rights.
Thank you.
Senator Tunney. Thank you. I make a personal note on your testi-
mony that what you have said raises the temperature of my blood. I
would like very much to work with you to see if we can develop some
legislation that could remedy the present condition.
I think that everything that you pointed out in your testimony is
just another indication of why it is that many people have lost faith
in the institutions which traditionally have been thought of as having
been created for the benefit of the taxpayer- — the citizen — and yet
now to a considerable extent are considered amongst hostile powers
that are unaccountable and certainly not responsive to individual
needs. It has produced the kind of political cynicism and apathy
that many of us can sense as political figures out amongst our
constituents.
Mr. Field. I listened to some of the witnesses earlier this morning,
Mr. Chairman, who voiced similar sentiments, and I must say that I,
too, am beginning to be concerned about the willingness of our courts
to do justice. It seems to me that, all too frequently, the key decisions
today turn on technicalities. They may be technicalities relating to
the Internal Revenue Code, to the Judicial Code, to the Doctrine
of Standing, or to the question of whether remedies have been ex-
hausted in State courts. But ordinary citizens, even though they are
unskilled in the law, recognize a technicality when they see one; they
recognize a denial of justice when they see one, and that is why I
think we have the cynicism that is growing, and that I sense, and
you sense.
Senator Tunney. Thank you very much.
[The prepared statement of Thomas F. Field follows:]
51
Prepared Statement by Thomas F. Field, Executive Director, Tax
Analysts and Advocates
Mr. Chairman, and members of the Subcommittee:
I want to thank you for your invitation to testify regarding the causes of popular
dissatisfaction with the administration of justice. That is a broad subject, and I
want to confine myself today to one aspect: the need for greater access to the
courts by those seeking judicial review of Internal Revenue Service actions.
In this connection, I wish to make only two brief, but highly important points:
First — All IRS administrative decisions should be subject to judicial review, not
just those that raise revenue. Second — No charitable or educational group should
be forced to violate the law before being allowed to go to court to vindicate
Constitutional rights that have been violated by IRS action.
INTRODUCTION
Bureaucrats, whether in the Internal Revenue Service or elsewhere, can make
honest mistakes. Moreover, they can also yield to political and other pressures to
engage in lawless or illegal administrative actions. That is why, more than a
generation ago, Congress provided broad access to the courts for those wishing to
obtain judicial review of agency action.
But, in the case of the Internal Revenue Service, judicial review by some of the
most important agency actions is claimed by the IRS to be barred by statute,
judicial precedent, or a combination of both. And, to date, those IRS claims have
been generally sustained by the courts.
The IRS actions which are said to be beyond the scrutiny of the courts fall into
two categories: tax giveaways, and actions which injure the rights of nontaxpayers .
TAX GIVEAWAYS
The IRS, by administrative regulation and private ruling, can affect the tax
liabilities of individuals and firms. If the administrative action results in greater
tax payments, that action is subject to judicial review in three forums: the Tax
Court, the Court of Claims, and the district courts.
But if the administrative determination — no matter how illegal — results in a loss
of revenue, the IRS claims that its administrative actions are totally beyond
judicial review. In short, the IRS cannot raise revenue without running the gamut
of judicial review, but it claims that it can give away revenue to special interest
claimants without any risk that its actions will be reviewed by the courts.
Thus, for example, there has never been judicial review of the following IRS
administrative rulings, each of which was highly questionable, and each of which
was the result of secret negotiations between the IRS and attorneys for the special
interests whose taxes were lowered as a result of those rulings:
(a) The ruling that convicted antitrust violators could deduct their treble
damage payments. (Cost to the public: in excess of $400 million through 1969,
when Congress repealed this ruling).
(b) The rulings that oil, gas, and mineral producers could minimize their tax
payments through questionable "production payment" transactions. (Cost to the
public: $200 million per year through 1969, when Congress repealed this ruling
as well).
(c) The ruling that royalty-type taxes paid to OPEC countries are creditable
against U.S. tax, rather than deductible. (Cost to the public: more than $1 billion
annually) .
The third of these rulings, which is still in effect, is worthy of special mention.
Thanks to the hearings of the Senate Subcommittee on Multinational Corpora-
tions, the secrecy which formerly surrounded the origin of the OPEC royalty tax
rulings has been lifted to some degree. It is now clear that those rulings were
illegal in their origin, having been forced on the Internal Revenue Service at State
Department insistence as a means of granting foreign aid to Arab states at a
time when it was clear that Congressional sentiment would have blocked such aid.
It is equally clear that those rulings continue to violate the law. The OPEC
governments in recent years have abandoned any pretense that these taxes are
computed by reference to either gross or net income. Instead, they are now levied
as straight per-barrel excises. Excise taxes are deductible, not creditable, against
U.S. income tax.
Hence, the existing system of tax credits for major oil producers constitutes an
illegal system of tax subsidies, totally unauthorized by Congress — indeed, adopted
52
as a means of circumventing Congress. Ordinary taxpayers are paying over $1
billion in extra taxes each year as a result of these tax credit rulings. Yet the
courts have ruled that no one has judicial "standing" to seek review of these
patently illegal determinations.
In my view, this is an outrageous situation. If an IRS ruling costs an individual
taxpayer a single penny, he can obtain judicial review of that ruling in any one
of three separate courts. But if an obviously illegal set of IRS rulings costs ordinary
taxpayer a single penny, he can obtain judicial review of that ruling in any one
taxpayers more than $1 billion annually, no one has standing to obtain judicial
review of those rulings.1
I can think of nothing more calculated to inspire cynicism about the role of the
courts in our society than the spectacle of an Internal Revenue Service which is
apparently beyond judicial control when it issues illegal rulings that grant enor-
mous tax favors to powerful special interests. And this cynicism is increased when
one notes how swift the courts are to review IRS action when it affects the pocket-
books of those same interests.
PROTECTION FOR THE RIGHTS OF NONTAXPAYERS
Most IRS actions are focused on the collection of tax revenues. But IRS ad-
ministrative action can also affect nontaxpayers. And, in such instances, the IRS
has been largely successful in exempting itself from judicial review.
For example, one of the basic goals of our organization is to assist the press in
analyzing tax issues. For this purpose, we publish a weekly tax newsmagazine,
Tax Notes. We are forced to censor this magazine each week, in an attempt to
comply with a set of exceedingly vague IRS rules governing the extent to which
we may, or may not, comment on legislation.
Let me say, in passing, that I believe it is clear that the IRS rules in question
violate the First and Fifth Amendments to the Constitution. Neither these nor any
similar rules could survive even the most cursory judicial scrutiny if they were
presented to the courts on their merits.
But there appears to be no way in which these issues can be presented to the
courts. We brought suit more than three years ago to test these IRS rules in light
of the First and Fifth Amendments, but were immediately met with the objec-
tion that suits in the district courts against the IRS can only take the form of tax
refund actions. Since we owe no taxes, the IRS argued that we have no access to the
courts, unless and until we made ourselves liable for taxes by violating the law.
The courts accepted this IRS argument, in reliance on the recent Supreme
Court opinion in Bob Jones University v. Simon, 416 U.S. 725. We sought, un-
successfully, before both the District Court and Court of Appeals for the District
of Columbia Circuit, to distinguish the Bob Jones case — in which the plaintiff had
an obvious, if delayed, refund remedy — from our own situation in which a refund
remedy is available only if:
(a) We embark on a conscious program of law violation, with the objective of
causing an IRS assessment of penalty taxes.
(b) We are willing to undergo the certain bankruptcy that would follow from
IRS withdrawal of our charitable and educational status, and
(c) We are able to find the resources after bankruptcy to prosecute a tax refund
suit involving difficult Constitutional issues.
Obviously, a "judicial remedy" of this sort is no remedy at all. Accordingly, we
continue, week by week, to censor an important channel of information for the
press regarding IRS actions. But we are very unhappy indeed with a situation in
which we are subject to censorship, under vague and ill-defined rules, by the very
agency whose actions we seek to scrutinize. For us, at least, the First Amendment is
a nullity.
Furthermore, this nullification of the First Amendment has serious implications
for the future. The courts have said, in effect, that they will stand aside when the
tax system is used to violate rights guaranteed by the Constitution to the volun-
tary sector of our society.
But, you may object, voluntary organizations enjoy the benefit of tax exemption.
So we can authorize the IRS to violate their Constitutional rights if it chooses.
The short answer to this contention is that the Supreme Court has repeatedly
1 Tax Analysts and I have been contesting these rulings in court for 2 years. Tax A/A
has sought to establish standing as a representative of citizen and taxpayer interests, and
I have sought standing as the owner of a domestic oil well, who suffers competitive harm
as a result of tax favors to foreign producers. The District Court for the District of
Columbia has ruled that neither Tax A/A nor I are within the "zone of interest" protected
by the courts. The case is now on appeal.
53
held (and presumably will continue to hold if the Constitution means anything)
that indirect violation of Constitutional rights through the tax system is as
reprehensible as direct violation of those same rights through financial penalties,
police harassment, and other means.
This situation is a matter of serious concern to thousands of voluntary groups
throughout the country, which are subject, like ourselves, to vague and capricious
IRS censorship with respect to their publications. I find it shocking that these
organizations can vindicate their Constitutional rights only if they first violate
the law and run the risks associated with IRS audit and bankruptc}^.
WHAT NEEDS TO BE DONE
The doctrine of standing is the root cause of the problems involved in taxpayer
challenges to illegal IRS administrative action. That doctrine is, in the words of
the late Justice Harlan, "a word game played by secret rules". At bottom, it is a
way in which the courts regulate their workloads.
Regulating the workload of the courts is an important objective, but surely
there is no justification for a rule that grants prompt judicial review for all pocket-
book interests that are immediately affected by IRS action, and denies review
when the IRS engages in illegal action that affects taxpayers generally. That rule
has the grave demerit of making our courts little more than a convenient device
for special interest claimants. Meanwhile, the historical role of the courts in pro-
tecting citizens from arbitrary and illegal executive action is neglected.
There are ways of regulating the workload of the courts short of making un-
reviewable a substantial number of important IRS administrative determinations.
Included are rules that would establish a Taxpayer Protection Agency as an inde-
pendent office in the Treasury Department, with power to bring questionable IRS
decisions to court. Alternatively, we could grant a right of action to taxpayer
groups that meet specified membership and financial requirements, which are
indicative of broad public acceptance of their goals.2 The precise nature of the
remedy to be adopted can be discussed later. The important point for present
purposes is that the IRS should not remain immune from judicial review when it
gives away money. That is far too sensitive a matter to be left to the unbridled
discretion of administrators, no matter how honest or well-intentioned they may be.
As for protection of the rights of nontaxpayers, it seems to me that an amend-
ment to the judicial code is needed. It should make clear that no individual or
group is required to violate a non-criminal statute as a precondition to a suit de-
signed to vindicate Constitutional rights that have been violated by the IRS.
Such a statute would establish the inadequacy cf legal remedits in this area, and
would therefore clear the way for the exercise of equity jurisdiction by the courts.
1 hope that these comments are helpful to you. I will be glad to answer any
questions that you may have.
Senator Tunney. Mr. Davidson you may proceed with your state-
ment.
TESTIMONY OF JAMES DALE DAVIDSON, EXECUTIVE DIRECTOR,
NATIONAL TAXPAYERS UNION
Mr. Davidson. Thank you, Senator. I appreciate the opportunity
to discuss an issue which I believe is very important; perhaps more
important than some of the others discussed. That is the fact that
the IRS, which reaches into the home of every citizen, has the
ability to push around people who are taxpayers, not only the ones
who are not taxpayers. I think that the operational costs for a citizen
to secure his constitutional rights in tax issues are purposefully
designed to be far higher than the normal issue at stake, so we have
what I call a banana republic style of justice, which is akin to that
2 Something similar has been done, for example, to separate legitimate Presidential
candidates from splinter candidates, when determining eligibility for Federal campaign
funds. Under those rules, a candidate must demonstrate broad public support before be-
coming eligible for funds. A similar demonstration might be demanded as a precondition
for taxpayer standing in court.
54
found in any country around the world where a citizen with a vast
pocketbook and a very exotic knowledge can obtain his own dif-
ferential justice by bribing the proper officials. By paying a very high
cost, he can thereby be immune from whatever weighs down on the
rest of the public.
Now, the same sort of situation occurs with the Internal Revenue
Service. We just heard a discussion of the doctrine of "void by vague-
ness." If that were consistently held, the Internal Revenue Code
would be entirely stricken from the books because certainly it is quite
vague and most citizens have no real idea of what the code consists
of or what they are required to pay.
Which brings me to an additional point which I believe is very
slightly considered but it is quite important, and that is the perception
of justice. Because the Internal Revenue Code is so vague the IRS
has said in a loose moment that 99.9 percent of all returns have
errors that could be discovered if anybody wanted to dig into them.
The citizen, recognizing this, feels that he has a choice between sub-
mitting to whatever is asked of him or possibly being in jeopardy of
running a great bill and then loosing anyway.
We found that 44 percent of the people who filed returns in the
current year went to the H and R Block or some similar organization
for professional assistance, and many of these people were individuals
who had worked for wages and had no real complexities in their return.
So I think this is just one statistical indication of the large feeling of
low-grade paranoia that exists in the country. People feel "I cannot
get justice from the IRS," and they are quite right normally in
thinking that.
We discovered something which might be of some embarrassment
to the Congress — I am sure we are not the only ones who discovered
it — that in the Tax Reform Act that was passed and signed on
December 23, 1975, unbeknownst to itself, the Congress generously
repealed the corporate income tax. Now, this was done by error,
obviously, but still it shows that none of the Members of Congress
who voted this through bothered to penetrate to the specific meaning
of the paragraph in law which was being changed. Of course the
citizen himself can scarcely be thought of as having any greater
insight into these particulars of law. And there is no reason why one
should be burdened with that type of knowledge.
It is notable that since this tax has been repealed for more than
6 months not one case has come to court to my knowledge, chal-
lenging the legality of a tax which has since been repealed. This again
shows the tremendous extent to which the constitutional protections
are discouraged for economic reasons in the collection of taxes.
Almost everyone knows, regardless of the legalities, that the courts
could not afford to dismiss a large source of revenue; hence, while the
law and logic are on one side, the economic expediencies are on the
other. The citizen suffers for this.
The Government's purpose in making it very difficult for individ-
uals to obtain their rights is perhaps counter to the general issue of
stability in the system. The tremendous resistance which I see to the
IRS and the reaction which I had to an article which I wrote in the
April issue of Playboy Magazine, pointing out some of the specific
examples of how IRS has abused the rights of taxpayers, show that
55
many people are afraid. I have had 50 people come to me and say,
"Gosh I thought that was a great article, but I would be fearful to
write a letter because IRS would investigate." And, the researcher
that I had working on the article has already received her notice of
audit. I look at my mailbox nervously.
I think that this type of feeling, that injustice is the nature of the
system and that justice could only be had if you had a vast pocketbook
and a great knowledge of how the system works, is something which in
the long run will destroy the society. That is whjr I feel that several
specific steps which I have outlined in my testimony ought to be taken.
First, that the Congress should make its will clear that the constitu-
tional protections do apply to taxpayers and that due process of law is
not suspended when money is at stake. And the laws ought to be
simplified to the extent that the taxpayer has an opportunity to under-
stand them. Furthermore, we need to redress the great diseconomies
which fall on a citizen for trying to protect his rights. We have to make
the cost of protecting a taxpayer's right less than the money at stake,
and if the average taxpayer in a dispute with the IRS has a tax ques-
tion of less than $2,000 it cannot cost $100,000 to assert his con-
stitutional rights. We would like to see that in cases where the con-
stitutional issue is at stake that the Government would — if a citizen
is vindicated — pick up the expense of protecting these rights. These
rights really do apply to everyone, and the aggravation which we feel,
while it may be great, with a toaster which does not work or a car that
will not start or whatever, is minimal compared to the general aggrava-
tion which we all feel at being powerless before a body like the Internal
Revenue Service, which, as we know, spreads everywhere.
Senator Tunney. Well, just on that point, what about the appoint-
ment of a small claims court for, let us say, a claim by the IRS of
$2,000 or less, there being the ability to have an attorney though only
a summary judgment is issued; if you go before this judge and not
have to appeal : Just a decision made on the spot with regard to a tax
claim of $2,000 or less?
Mr. Davidson. Well, of course we do have a court of claims where
small issues can be heard. But the difficulty here as with the Tax
Court itself, which has been designed by Congress in the past in a
futile attempt to try to answer this problem, is that these courts by
their nature almost always hold that it would be grandiloquent on
their part to favor any constitutional argument so they seldom do.
If a taxpayer comes to a court with a claim that taxes are being
levied on him on the basis of information which was illegally obtained,
for example, the courts have not ruled that the Government would
waive the attempt to seize the revenue on that basis, and none of these
small courts would be willing to accept these issues. The general issues
which arise out of the failure of due process and the failure to observe
constitutional rights as we generally consider them in tax issues do
not seem to interest these courts, and that is why I think that a con-
gressional resolution instructing the court, the Tax Court, and the
Court of Claims that constitutional issues are pertinent to tax issues
would be in order.
Senator Tunney. Mr. Field, do you have any comment on that?
Mr. Field. I am thinking of former Dean Erwin Griswold of the
Harvard Law School, who labored as a young man in the Solicitor
56
General's office, essentially causing the problem which has just been
described. Basically the Supreme Court held 40 years ago that equal
protection issues could be raised only with great difficulty in the
Federal tax area. The Court gave virtually carte blanche to the
Congress to distinguish between, say, oil producers who pump liquid
out of a well and who get percentage depletion, and water producers
who also pump liquid but do not; to distinguish between married and
single; between heads of households and others. It seems to me the
Court went very far at that time, but I am not certain whether a
statute is needed here or some rethinking of the reach of those early
decisions of the late 1920's and early 1930's. In short, it seems to me
is that the problem here is basically a problem of rethinking the
equal protection decisions of the Supreme Court of about 40 years
ago, which Dean Griswold was instrumental as a young attorney in
arguing on behalf of the government. It may be, in short, that this
particular program is one that the courts could correct for themselves.
Perhaps Mr. Davidson can suggest a statutory route, and sometimes
a statutory route has the great virtue of being both quicker and clearer.
Mr. Davidson. Well, I think that certainly the courts have taken
their lead in this issue from the Congress, inasmuch as the Congress
has labored unsuccessfully to reform the tax structure and to make it
equitable. The feeling that one gets very quickly in investigating the
tax issues which involve constitutional rights, is that the courts feel
that Congress really does not mean for the constitutional rights to be
taken seriously and extended in the same way that they are in other
areas routinely. For example, one issue which I would specifically
point to, which can be definitely corrected by legislation, is that in
tax issues where the Internal Revenue Service is facing the individual
citizen as an adversary, the courts maintain the fiction that the in-
dividual citizen, who is obviously the defendant in an adversary
proceeding, is a plaintiff and not a defendant. Now, if the Congress
were to simply define his position as everyone in commonsense knows
it is, as a defendant, then this would grant to him immediately
protections of due process which are routinely waived by this very
slippery definition. That is one of the sorts of corrections which ought
to be considered.
Senator Tunney. Well, I could spend a great deal more time talking
about it. I hope that you will make some of your specific suggestions
known to the committee. I mean, you have discussed it generally very
effectively today, but if you do have any specific recommendations as
to legislative changes — and I think the definition that you have just
suggested — making the taxpayer the defendant and the constitutional
protections of a defendant is a very good suggestion. It is one that I
would like to think through as a possible means of developing legisla-
tion to cure that problem.
But I am going to have to move on because we have a limited time
period .
I want to thank you both for being here.
Mr. Field. Thank you, Mr. Chairman.
[The prepared statement of James Davidson follows:]
57
Prepared Statement by James Davidson, Executive Director of the
National Taxpayers Union
As this committee will no doubt hear many times in the course of its delibera-
tions, the value of a constitutional right is directly proportionate to the ease with
which it can be exercised. A right which can be secured only at high cost is scarcely
a right at all.
When the cost to most persons of securing constitutional guarantees greatly
exceeds the cost of submission, the effect must be to undermine the distinctions
upon which we rightly pride ourselves, between our constitutional system of
government and all other forms. In different words, by placing the cost of securing
constitutional rights too high, we negate those rights, and convert our system
into one in which liberty is a matter to be advanced or restricted solely as it is
economically expedient. A dispassionate study of comparative political systems
reveals that it is usually possible to obtain relief from tyranny in any system, no
matter how arbitrary and despotic, if you are willing and able to pay a high price.
If you have the financial resources to bribe the necessary officials, and you have
the know-how to approach them, you may be able to obtain a highly differential
and quixotic relief. Of course, in such systems there is no rationalized procedure
by which the masses may secure the same relief from despotism for themselves.
In despotic systems the masses lack both the financial resources and the knowledge
to obtain justice.
It is in light of this analysis that the National Taxpayers Union invites this
committee to consider the constitutional rights of Americans as taxpayers. You
will discover that in all too many instances, the cost to the average taxpayer of
asserting his constitutional rights far exceeds the sum which he would lose by
waiving those rights and submitting to the claims of the tax collecting body. In
ways too numerous to be fully listed here, the tax collecting system bears down
upon the individual with a force which far outweighs his theoretical protections
in due process of law. For example, the only courts where the entry costs for the
taxpayers would not normally exceed the disputed tax payments — the tax court
or small claims court — do not entertain constitutional arguments. Thus, unless the
procedures which are followed by these courts insure full protection of a taxpayers'
rights, the courts themselves are no help.
Furthermore, the pretense that both parties are "plaintiffs" in tax cases deprives
the taxpayer of numerous constitutional protections which normally shield
citizens in adversary proceedings. Rather than impose on the government the
full burden of proving wrongdoing by the taxpayer, the IRS is generally free to
make accusations and thereby shift the burden onto the taxpayer of proving his
innocence. Because the vast powers and legal resources of the government are
arrayed against him, the individual taxpayer who feels himself to be the victim
of injustice often must choose between two unjust alternatives: submission, or
vindication by bankruptcy. He personally must bear all the operational costs of
asserting his constitutional rights. If, after long and expensive deliberation, he is
vindicated by the court, there is no provision for the government to absorb the
high courts costs which it imposes.
Clearly, the situation is one in which the vast majority of the population doubts
that it can obtain justice in tax matters. I could site more examples than this
committee has time to consider which tend to validate this popular opinion. But
let me point to one revealing evidence of the low grade paranoia which afflicts
the population on tax questions: 44% of the citizens filing tax returns in 1974
were afraid to send in their returns without consulting "experts". The great
majority of these returns were simple cases of persons who worked for wages and
were due refunds. Yet, fear is so widespread that these millions went out of their
way to spend money for professionals to check their judgement before filing a
return.
This not only exemplifies the deep-seated fear abroad in the countryside, it
points to another grave shortcoming of the system. Taxpayers cannot exercise
their constitutional rights as taxDayers partially because they lack the knowledge
to do so. The reputed boast that "IRS can find errors in 99.9% of all returns if
it wants to" could not be more appropriate. No one understands the Internal
Revenue Code. With all due respect to the distinguished gentlemen here, members
of Congress themselves could not wrestle with the meaning of many specific
58
clauses in the Internal Revenue Code without being thrown. There is no better
example than the recent revelation of Congress' unintended generosity in repealing
the corporate income tax in the tax reform measure signed into law on
December 23, 1975. Quite evidently, not one member of Congress bothered to, or
was able to penetrate the specific meaning of the changes made in the law. How
then, could the citizen be justly bound to know more?
A further question arises from the "repeal" of the corporate income tax which
bears directly on the topic at hand. Why is it that not one law suit throughout
the United States has been filed to challenge the collection of a tax which has been
repealed? Why indeed, does not the prohibition of ex -post facto legislation intervene
to prohibit the passage of a retroactive tax bill? Obviously, it does not, and the
received legal opinion would not even entertain such an argument. The reason,
it seems to us, is not from any shortfall of logic in the argument itself, but because
of the more palpable shortfall of-revenue in the Treasury which might result were
the citizen's constitutional rights as a taxpayer to be enforced.
The National Taxpayers Union disputes the supposition that economic expe-
diency should so fully outweigh the constitutional rights of citizens in tax matters.
The 16th Amendment did not repeal the rest of the Constitution. Congress should
make that clear. A "Sense of the Congress Resolution" perhaps tied to the current
resolution reinstating the Corporate Income Tax, should assert the intention of
Congress to protect the constitutional rights of citizens in tax matters. And to
make that necessary statement more than a rhetorical show, specific changes in
the law should be made, providing what every taxpayer already knows, that the
defendant in legal matter involving taxes is a defendant, not a plaintiff. Further-
more, the system which requires vindication by bankruptcy should be changed
to lower the cost to the citizen of asserting his constitutional rights. In these
cases where the government is found at fault, the government should pay reason-
able legal fees. The cost to the government would be more than compensated
for by the increased perception that justice is available through the system, and
that one's constitutional rights are not merely something to bargain for economic-
ally, like favors to be purchased in a banana republic, but strong protections
which apply to everyone regardless of his resources.
Senator Tunney. Our next witness is Aryeh Neier, executive direc-
tor of the American Civil Liberties Union.
TESTIMONY OF ARYEH NEIER, EXECUTIVE DIRECTOR, AMERICAN
CIVIL LIBERTIES UNION
Mr. Neier. Thank you very much, Senator Tunney.
I am accompanied today by Prof. Burt Neuborne, a professor of
law at New York University, counsel to the American Civil Liberties
Union in many cases, and an expert on questions of Federal jurisdiction.
We are very grateful for the opportunity to be here, and we are
very grateful that this committee is considering the issue that is before
you today.
If we may, we would like to submit our prepared testimony for the
record, and then briefly summarize and amplify a few points that are
contained in the prepared statement. I would like to lead off with a
few general comments and then turn to Professor Neuborne for some
specific analysis of what the Supreme Court is doing and what remedies
there may be that the Congress could consider for dealing with some
of the recent actions by the U.S. Supreme Court.
In offering a general comment, I would say that the law traditionally
has been perceived by most people in most parts of the world as an
instrument for upholding the status quo. It was not that way for
what now seems like a far too brief period in American history. It was
not that way during the 1950's and the 1960's. The American courts,
particularly the U.S. Supreme Court and the Federal judiciary,
played an extraordinary part in the history of the 1950's and the 1960's.
59
It was a turbulent period in American history; there were wide-
ranging pressures for social change; many groups of people previously
disenfranchised by reasons of race, sex, status, dependency or youth
sought the full protections of citizenship. The Federal courts were a
forum open to them to accommodate those pressures. While the Fed-
eral courts did not always side with the people who were seeking
changes, the very openness of the Federal courts and their willingness
to hear the claims for full citizenship, had a profound impact. This
produced very substantial and very beneficial social changes. The
courts channeled the activities of people seeking redress of their
grievances into orderly and lawful paths in which claims for benefits
became claims for rights. Grievances were adjudicated in the context
of the U.S. Constitution.
I think we got out of that period of intense pressure peacefully and
with many beneficial social changes largely because of the avail-
ability of the Federal courts to hear those claims, consider them on
their merits and their willingness to redress grievances. We also got
out of a period of tremendous national dissension over the Vietnam
war in a relatively peaceful manner, perhaps because of the willingness
of the Federal courts to hold themselves open.
In the last several years that has all changed. This U.S. Supreme
Court has devised a series of mechanisms for slamming shut the doors
of the Federal courts. I think that that is a matter of very grave
significance for the United States. Many of the promises that were
held out during the 1950's and during the 1960's have not yet been
fulfilled. Yet the Federal courts today are frustrating the ambitions
of people who are still not fully enfranchised to enjoy the full rights of
American citizenship.
I do not think we can begin to calculate just what the cost is going
to be. But we do know that there is an atmosphere in the United
States today of great pessimism. We think of many social problems as
getting worse. We see ourselves further and further away from solving
the problem of racial inequality; we see ourselves further and further
away from solving the problems of the poor and the dependent in
American society; and we see the possibilities emerging again of
widespread discontent in American society.
For these reasons, it seems to us extremely important to begin to
open up again the doors of the Federal courts.
The Supreme Court has played a very peculiar role in the last
several years. It has not overturned many of the substantive decisions
of the earlier Supreme Court, and it has not reversed the particular
decisions which grant rights to people who were previously disen-
franchised. Instead, the Supreme Court has made it impossible for
those people to get into the court in order to assert those rights. It is
reminiscent of Franz Kafka's novel, "The Castle." In 'The Castle"
the land surveyor is constantly frustrated at his inability to get
inside the castle; if he can only get inside all of his problems will be
taken care of. But one after another bureaucratic device is set in his
way and he can never get inside. He can never get an audience. He
can never have an opportunity to state his grievances. That is ap-
proximately what this U.S. Supreme Court has done; it has created a
Kafkaesque world in which people find themselves frustrated at
getting into the Federal courts in order to assert their rights. If they
60
could only get in, if they could only overcome the various standing
problems and jurisdictional problems this Supreme Court has set in
their way, then they might be able to assert the rights which this
Supreme Court has still left undisturbed. This is a matter of the
gravest significance for a nation that wants to accommodate pressures
for redress of grievance in an orderly way and in a way consistent with
the American Constitution.
At this point, if I may, I would like to ask Professor Neuborne to
deal with some of the specific obstacles that the Supreme Court has
created and some of the ways in which the Congress might be able to
help us in dealing with those obstacles.
TESTIMONY OF BURT NEUBORNE, PROFESSOR OF LAW AT NEW
YORK UNIVERSITY
Professor Neuborne. Thank you.
Senator Tunney, we appreciate this opportunity to discuss what is
becoming a problem of very serious dimensions to attorneys in this
country who are attempting to enforce constitutional rights.
Traditionally and historically, in this country, the primary forum
within which one could expect to receive a sympathetic hearing on
issues of Federal constitutional rights has been the Federal trial
courts. Now, of course, State courts have a concurrent responsibility
to enforce the Constitution of the United States and, indeed, the
State courts of your own home State, the State of California, have
pioneered in many constitutional decisions which have led the way
toward the enforcement of rights. Unfortunately, that is not a national
phenomenon, and it remains the fixed view of virtually every ex-
perienced civil rights lawyer that one is likely to get a more sympa-
thetic hearing and a more effective redress of grievance if one is
permitted access to a Federal court to enforce Federal constitutional
rights rather than being forced to go into a State court to do so.
A majority of the current Supreme Court has placed a series of
extremely difficult obstacles in the way of persons seeking to secure
redress of Federal constitutional rights in Federal court. First, the
current Court has dramatically expanded the standing doctrine in
recent years; making it virtually impossible for large numbers of
Americans who have festering constitutional grievances and who are
every day suffering violations of their constitutional rights to find a
judicial forum, any judicial forum, within which to present their
constitutional grievances to a Federal or a State judiciary.
Most recently, two decisions of the Supreme Court illustrate this
ominous trend. In 1975 black residents of the city of Rochester were
denied the opportunity to litigate in Federal court the constitutional-
ity of a pattern of exclusionary zoning which had, in effect, condemned
them to ghetto existence in the inner city of Rochester and frozen
them out of the surrounding suburbs. They were refused the oppor-
tunity to litigate the constitutionality of that exclusionary zoning
pattern on the ground that none of them could show a particular
suburban housing project which they might have lived in but for the
exclusionary zoning. Well, the exclusionary zoning prevented the
planning or building of any housing projects, and so the decision
acted as a kind of crude Catch-22, which froze these poor people
61
out of court precisely because the exclusionary zoning pattern worked
so well so that there were no existing or, even, planned housing projects.
Recently, in Philadelphia, black citizens of the city of Philadelphia,
after demonstrating to a Federal judge who held a scrupulous trial, a
pattern and practice of unredressed police abuse in the city of Phila-
delphia resulting in systematic deprivation of constitutional rights were
denied an opportunit}' to seek redress in Federal court from those
clear violations of their constitutional rights, because the individual
plaintiffs in that case could not show that the mayor of Philadelphia
was actually doing something to them at that moment.
Well, cases like that, which keep people with live, real grievances
out of the Federal courts, renege on the promise that the Constitution
provides that there will be some judicial forum within which real
constitutional grievances can be redressed.
I hasten to point out to the subcommittee that, thus far, the
decisions of the Supreme Court in this area are subject to legislative
reform. The Supreme Court has been, thus far, quite clear that it is
adopting restrictive standing doctrines in a prudential capacity because
it feels that it wishes to close the flood gates of litigation; it feels that
without congressional guidance it does not want to enter these areas.
It has made it very clear that if Congress will give a signal to the
Supreme Court that it is to adopt a liberal posture with respect to
standing and to allow people like the Rochester inner-city residents
and the citizens of Philadelphia access to the Federal courts, that the
Supreme Court will not stand in the way of that congressional judg-
ment. We suggest that it is one of the critical items on the congressional
agenda to do something about the doctrine of standing to make sure
that persons with genuine constitutional grievances do have some
forum within which to redress those grievances.
A second recent series of Supreme Court decisions which makes it
very difficult for persons to gain access to Federal court and to litigate
issues which affect their lives, is illustrated by the case that you heard
a little bit about this morning, the case of Paul v. Davis. This Supreme
Court has very narrowly construed the nature of the injury which will
give rise to a constitutional violation under section 1983, which is the
cause of action statute which allows people to invoke the jurisdiction
of the Federal courts on constitutional questions. It has very narrowly
construed 1983 to the point where the knowing and malicious dissem-
ination of false information about an individual by a policeman, which
seriously injures that individual, has been held by the Supreme Court
not to be sufficient to allow an individual to litigate that grievance in
Federal court. Well, that seems to be an outrageous narrowing of the
spectrum of injuries which Federal courts are really there to give relief
for. If you cannot rely on a Federal court to protect you against a
State law enforcement official who has gone haywire and who is
disseminating information about you in a malicious way, who can
you go to?
That seems to me to be a primary function of the Federal court.
Once again, it is clearly within the power of Congress, if Congress
wills it, to make it clear to the Supreme Court and to the lower
Federal courts, that grievances like this are appropriate for resolution
in the Federal courts and should be among the primary concerns of
the Federal courts.
72-948 O - 76 - 5
62
Finally, in a very disturbing series of decisions, the Supreme Court
has begun to enunciate something coming very close to a doctrine of
exhaustion of State judicial remedies before seeking relief in a Federal
court for a constitutional violation.
It has been the law in this country for some time, and I think most
people would tell you it continues to be the black letter law, that a civil
rights plaintiff need not exhaust his State judicial remedies before going
into Federal court. The Supreme Court continues to give lipservice to
that rule as a matter of general practice. Unfortunately, though, what
the Court has done is to erect a virtual de facto exhaustion of State
judicial remedies by expanding the notions of abstention, by radically
expanding the notion of comity and by imposing doctrines such as
"core" habeous corpus in a series of technical, low-visibility decisions.
These decisions have imposed, across the spectrum of civil rights
litigation, an 80-percent requirement of exhaustion of State judicial
remedies. Currently, in order to gain access to a Federal court, a
litigant in a civil rights case is forced to run a maze, a jurisdictional
maze of such complexity that there are rarely lawyers with the
stamina, the time, and the experience to successfully traverse what
is now an extraordinarily narrower path into Federal court. These
jurisdictional devices frustrate people who are seeking to take ad-
vantage of what ought to be a clear, expeditious, and effective remedy
in Federal court for their constitutional violations.
You have already heard this morning two other areas of serious
concern to those persons seeking to redress constitutional rights in
Federal courts: the demise of the class action as an effective vehicle
for the resolution of these controversies, and the destruction of the
court's traditional ability to award attornerys fees in deserving cases.
Apart from simply noting that both of those areas are of critical im-
portance, I would like to discuss a fourth area of judicial action which
is seriously impeding the ability of lawyers to redress constitutional
violations in Federal court — the assault by this Supreme Court on the
ability of the lower Federal judiciary to give adequate remedies to
persons who come into court. If you are lucky enough to satisfy the
standing doctrine, if you are lucky enough to traverse the narrow
abstention comity device and find 3^ourself in Federal court, and if you
are lucky enough to win, you still have won only 10 percent of the
battle, because the other 90 percent of the battle will consist of per-
suading the Federal judge that, under current Supreme Court law, he
has the power, or she has the power, to grant you adequate remedies in
your case.
In recent days, we have seen the Supreme Court say that a Federal
court lacks the power to grant compensatory damages against a pros-
ecutor who has willfully used perjured testimony to secure a convic-
tion. If the defendant in a constitutional case is a prosecutor or if the
defendant is a judge or if a defendant is a municipality or if a defendant
is a State agency, under recent decisions of the Supreme Court, there
may be no way for a Federal judge to award damages to an injured
constitutional litigant.
It seems to me that it is downright dishonest to provide a Federal
judge with the obligation of enforcing constitutional law; to provide a
litigant with the assumption that there is a forum in which constitu-
tional law can be enforced; but then to come down to the final day of
63
judgment and be told by the Federal court that there are no damages
for you, there is no compensation for you; maybe we can enunciate
norms of behavior that will help other people, but there is nothing that
we can do for you.
Consistent with the cutting back of the ability to award damages,
this Supreme Court has radically cut back in the last 2 years on the
ability of the lower Federal courts to evolve effective equity devices,
imaginative injunctive devices, to both redress the past violation of
constitutional rights and prevent the future violation of constitutional
rights.
In that case arising out of Philadelphia, the Rizzo case, that I
mentioned earlier, a Federal judge, in what was an imaginative way of
dealing with a serious and explosive situation, directed the mayor of
the city of Philadelphia to set up a grievance review board, some sort
of mechanism for dealing with complaints against the police. The
judge did not say how the board was supposed to act, he did not say
what the board was supposed to do; he just said, "Listen, you cannot
have an effective redress of grievance here unless you have some
forum," and he directed that they set up a forum for the resolution of
these disputes. The Supreme Court reversed that decision, indicating
that the Federal judge had gone beyond his correct role in seeking to
fashion this type of affirmative relief. That is similar to a decision that
they handed down reversing a similar decision out of Cairo, 111., where
a Federal judge had fashioned imaginative equitable relief to try to
deal with rampant racial discrimination in the enforcement of justice
in Cairo, 111.
In both situations the power of an equity court, the traditional power
of the equity court, was cut back by the Supreme Court. Once again,
Senator Tunney, I think that those decisions are also amenable to
reform and to reversal by expressions of congressional will. If Congress
made it clear that it does not wish the Civil Rights Act of 1871, which
is the section 1983, to be burdened with the traditional common law
immunities, then courts could act in this area. If Congress made it
clear that lower Federal courts are to have adequate equitable capacity
to fashion remedial relief, then the courts would be free to do so.
I think, just in conclusion, as Mr. Neier mentioned, the current
court has not cut back on substantive rights dramatically. There
have been decisions that one can be concerned about in the last term
or two, but by and large the legacy that the Warren Court left us, of an
expanded notion of constitutional freedom, is still intact. There are
rights which American citizens can enforce if only they are given the
forum and the law3^ers to do it.
Thank you.
Senator Tunney. Thank you. I want to thank you both for your
statements, and I have many questions. Unfortunately, under the
rules of the Senate, our hearings have to end at 12 noon unless we get
special permission of the Senate, so I am going to have to adjourn the
hearing now. I think that you both have made a very significant con-
tribution to our deliberations, and I must tell you that the sum total
of the testimony that we have had today leads one to believe that the
Congress is going to have to take effective action to give greater access
to citizens to the courts, because I sense — and you do not have to be
very empathetic to sense it — a tremendous frustration on the part of
64
those who, as teachers and as students of the Supreme Court, or
following the case law on a day-to-day basis, as well as the average
citizen who finds that the door to the courts has been slammed down.
And I must say that the statement that we heard from Mr. Davis,
was a very compelling articulation of a man deeply frustrated, deeply
hurt, and without any escape route, or any hope to get out of the
swamp and pull himself out. I just think that it is an outrage.
Well, thank you very much. I look forward to working with you
and others that have testified today to see if we can develop some
legislation which will cure some of the clearest examples of the Court's
desire not to curtail access to the Federal judiciary for the purposes of
curing these wrongs.
Thank you very much.
[Whereupon, at 12:08 p.m., the subcommittee was adjourned.]
[The prepared statements of Mr. Neier and Mr. Neuborne follow:]
Prepared Statement of Aryeh Neier ' and Burt Neuborne 2 on Behalf
of the American Civil Liberties Union
We appear here today on behalf of the American Civil Liberties Union, a
nation-wide non-partisan organization of 275,000 members dedicated to the
advancement of the principles of the Bill of Rights.
In your letter of invitation, Mr. Chairman, you noted that this is the 70th
anniversary of Roscoe Pound's address to the American Bar Association on the
causes of popular dissatisfaction with the administration of justice. When Roscoe
Pound embarked upon his critical re-examination of the role of law in American
life, he unleashed a current of legal idealism which has sought to transform
American law from a device for the maintenance of the status quo into a device for
the just resolution of disputes. We have come a long way from Pound's beginning.
When Pound wrote, in 1906, only the rich and the powerful could view American
law with satisfaction. Powerless segments of American society correctly perceived
law as a hostile force. The primary role of law was the protection of privilege.
It is a tribute to how far we have advanced in the last 70 years that the weak and
the powerless have come to regard American law, not necessarily as an implacable
enemy, but as a potential ally which provides them with hope for justice.
Mr. Chairman, we are grateful, on behalf of the American Civil Liberties
Union, for the opportunity to discuss with you a disquieting phenomenon which
threatens much of the progress we have made toward realizing Roscoe Pound's
dream of equal justice through law. During the last several decades, two extraor-
dinary occurrences have made possible our progress toward Pound's dream —
the emergence of the Federal judiciary as an easily accessible and sympathetic
forum for the protection of the rights of the politically powerless and the growth
of a segment of the American Bar dedicated, not to servicing the rich and power-
ful, but to vindicating the rights of those who traditionally have lacked access
to the courts. The combination of a receptive Federal judiciary and an idealistic
civil rights-civil liberties bar culminated in the transformation of law from the
preserve of the privileged to an engine of social reform. In the last few years,
however, the ability of the Federal judiciary to perform its historic and primary
function as guardian of the United States Constitution has been seriously under-
mined by a series of restrictive decisions of the current Supreme Court. Moreover,
at the same time that the current Court has sought to restrict access to the Federal
courts, it has delivered a series of severe blows to the newly emergent public bar.
Mr. Chairman, if the current majority of the Supreme Court is permitted — by
shutting down access to the federal courts and by crippling the public bar — to
dismantle the apparatus which was responsible for the transformation of the role
of law in our society, the progress of the last seventy years will evaporate. To
much of America, law will, once again, become the enemy to be feared and evaded,
rather than an ally to be respected and revered.
The current Court's assault on the role of the Federal judiciary and the public
bar has occurred in four areas. First, the Court has severely restricted access to
1 Aryeh Neier is Executive Director of the American Civil Liberties Union.
2 Burt Neuborne is Professor of Law at New York University and former Assistant
Legal Director of the American Civil Liberties Union.
65
the Federal courts by aggrieved individuals; second, the Court has placed signifi-
cant, and perhaps, insuperable obstacles in the way of persons seeking to band
together to seek class action relief from the Federal courts; third, the Court has
struck a blow at the continued existence of an independent public bar by denying
Federal courts the power to award attorneys fees in many cases; and, finally,
the Court has drastically restricted the ability of a Federal court to grant meaning-
ful remedies — even to successful plaintiffs.
I. THE RESTRICTION OF ACCESS TO THE FEDERAL COURTS
Since the Civil War, the Federal trial courts have served as the primary enforce-
ment arm of the Bill of Rights and 13th, 14th and 15th Amendments. While
state courts retain a concurrent obligation to enforce the Federal Constitution,
it has been the lesson of our history — and it remains the fixed belief of virtually
every experienced civil rights lawyer in America — that Federal courts provide
the most effective forum within which to enforce the Constitution of the United
States.
Congress has codified this judgment in the Civil Rights Act of 1871, (42 USC
§ 1983) which guarantees a Federal judicial forum whenever state or local officials
interfere with Federal constitutional or statutory rights. Unfortunately, the
command of Congress has been severely weakened by the current Court.
First, in cases like Warth v. Seldin, 95 S. Ct. 2197 (1975) and Rizzo v. Goode —
U.S. — (1976), a majority of the current Court has restricted the class of persons
who may complain to the Federal courts about violations of their Federal consti-
tutional rights. In Warth, the Court ruled that minority residents of the Rochester
area could not challenge suburban exclusionary zoning practices which condemned
them to a ghetto existence because they were unable to point to a specific housing
project which they would have resided in, but for the exclusionary zoning. Of
course, the very existence of exclusionary zoning prevented the planning or con-
struction of such projects — reducing the decision to a crude exercise in Catch-22.
In Rizzo, the Court ruled that Black citizens of Philadelphia, who had been the
target of proven police abuse, could not seek an order directing the Mayor to
establish a police complaint procedure, since they were not currently suffering
any abuse at his hands. The extremely crabbed view of the standing doctrine
enunciated in cases like Warth and Rizzo 3 as a "prudential" matter by a majority
of the Court, leave thousands of Americans with festering constitutional griev-
ances, but without a Federal court within which to resolve them in an orderly
manner.
Second, in cases like Paul v. Davis — U.S. — (1976), the current Court has read
the Civil Rights Act of 1871 in a grudging manner to refuse access to the Federal
courts to persons who have been seriously injured by lawless government action.
In Paul, a police flier had erroneously stigmatized the plaintiff as a "known" and
"active shoplifter." When the erroneously stigmatized plaintiff sought Federal
judicial relief, the Supreme Court ruled that police injury to reputation — even if
knowingly and maliciously caused — was not a deprivation of constitutional
rights and, thus, could not be redressed in Federal court. Thus, persons whose
lives have been seriously affected by lawless governmental action are denied
access to a Federal forum, unless they can shoehorn their injury into the narrow
constitutional categories enunciated by a majority of the current Supreme Court.
Third, the current Court has dramatically expanded the doctrines of abstention
and comity to force case after case out of Federal court. Despite the ruling of
Monroe v. Pape, 365 U.S. 167 (1961) that civil rights plaintiffs are not obliged
to exhaust state judicial remedies prior to seeking relief in Federal court, the
current Supreme Court has clamped a de facto state judicial exhaustion require-
ment on civil rights plaintiffs — imposing a delay of from 1-2 years before many
civil rights plaintiffs may gain access to a Federal forum.
The availability of expeditious Federal relief from constitutional violations
has been a critical factor in transforming abstract constitutional doctrine into
practical reality. Accordingly, the draftsmen of the Civil Rights Act of 1871 and
eight members of the Supreme Court in Monroe v. Pape recognized that the delay
which would be caused by requiring resort to state court as a pre-condition to
Federal judicial review would destroy 42 U.S.C. § 1983 as an effective device for
the protection of Federal constitutional rights. Accordingly, it is now well settled
that a civil rights plaintiff need not exhaust state judicial remedies before seeking
3 Other recent cases similar restricting standing are : Schlesinger v. Reservists Committee
to Stop the War, 418 U.S. 208 (1974) ; United States v. Richardson, 418 U.S. 166 (1974) ;
Laird v. Tatum, 408 U.S. (1972).
66
Federal judicial review under the Civil Rights Act of 1871. Unfortunately,
however, the current Court has made a mockery of the notion of direct and
uncomplicated access to Federal courts by imposing at least three forms of state
exhaustion on prospective civil rights plaintiffs.
First, in Preiser v. Rodriguez, 411 U.S. 475 (1973), the current Court invented a
species of cases falling within the term "core habeas corpus" in connection with
which it imposed a requirement of exhaustion of state judicial remedies.
Second, in a series of cases exemplified by Boehning v. Indiana State Employees
Association — U.S.— (1976), the current Court has dramatically broadened the
concept of abstention into a virtual de facto exhaustion requirement. In the view
of Chief Justice Burger, and perhaps a majority of the current Court, whenever
the challenged action of a state official might violate state constitutional or
statutory law, a civil rights plaintiff must seek relief in state court on state law
grounds, prior to seeking relief in Federal court. If such a view of abstention/
exhaustion prevails — and there are disturbing signs that it may — speedy access
to Federal court will become a thing of the past. Such a view would disturb settled
notions of Federal jurisdiction dating back to Home Telephone & Telegraph Co. v.
City of Los Angeles, 227 U.S. 278 (1913).
Finally, in the wake of Younger v. Harris 401 U.S. 37 (1971), which forbade
Federal judicial interference with pending state criminal proceedings, the current
Court has ousted the Federal courts from wide areas of constitutional adjudication
in the guise of comity. In Huffman v. Pursue, Ltd. 420 U.S. 592 (1971), the Court
declined to permit a Federal court to enjoin an unconstitutional state civil court
injunction. Thus by the simple expedient of commencing a state civil proceeding
against a potential Federal civil rights plaintiff, state officials can now deprive that
plaintiff of access to a Federal court. Moreover, in Hicks v. Miranda, 422 U.S.
332 (1975), the current Court ruled that even if a Federal plaintiff wins the race
to the courthouse and seeks Federal judicial review prior to the initiation of state
judicial proceedings against him, the state may nevertheless oust the Federal
courts by filing a proceeding even after the Federal action is filed. Such a reverse
removal power renders it an act of some courage to seek relief in Federal court
since a predictable response under Hicks to a § 1983 complaint will be the com-
mencement of state criminal proceedings against the Federal plaintiff.
The net result of expanding the law of standing; narrowing the cause of action
granted by the Civil Rights Act of 1871; and pyramiding abstention and comity
into a disguised exhaustion requirement, has been the creation of a jurisdictional
maze which must be run in order to gain Federal review of Federal constitutional
questions — a far cry from the simple, direct and effective remedy intended by
Congress in 1871. Unless Congress re-asserts its will, the current Court bids fair
to repeal 42 USC § 1983 by judicial fiat.
II. RESTRICTIONS ON ACCESS TO CLASS ACTIONS
In 1966, the Federal Rules of Civil Procedure were amended to authorize indi-
vidual litigants, whose separate claims might not be sufficient to justify the ex-
pense and uncertainty of judicial review, to aggregate their claims into a class
action and, by combining into a class, to match the legal resources available to
corporations or the government. The class action promised the ability to provide
legal redress to thousands of Americans who might otherwise lack the resources
or the capacity to protect their rights individually. It also promised the emerging
public bar the opportunity to provide legal services to far more persons than had
been thought possible in a conventional procedural posture. From the beginning,
however, the Supreme Court has narrowly restricted the use of class actions and
the current Court has cast serious doubt on class actions as a remedial device.
The Supreme Court's attack on class actions began in Snyder v. Harris, 394 U.S.
332 (1969), when the Court ruled that members of a class could not aggregate
their individual damages to satisfy the jurisdictional amount requirements of 28
U.S.C. §§ 1332 and 1331. Since one of the primary purposes of class actions was
to permit powerless individuals to aggregate into a powerful, ad hoc entity for the
purposes of litigating a specific claim, Snyder was a serious blow. After Snyder,
poor persons, whose claims rarely, if ever, exceeded $10,000 individually, were
forbidden to aggregate and were, thus, often excluded from Federal court. As bad
as Snyder was, however, Zahn v. International Paper Company, 414 U.S. 291
(1973) was even worse. In Zahn, the Court ruled that even if the named plaintiff
individually satisfied the $10,000 jurisdictional amount, no class action would be
permissible unless the members of class each satsified the $10,000 jurisdictional
67
amount. Thus class actions have now been transformed, through the magic of a
hostile Supreme Court into a device for the protection of persons whose claims
must each be large enough not to require class actions in the first place. Of course,
where a jurisdictional basis other than diversity or Federal question exists, aggre-
gation is unnecessary, since jurisdictional amount is not an issue. Even in such
situations, however, the current Court has evinced strong hostility to class ac-
tions. In Eisen v. Jacqueline & Carlisle Co., U.S. (1975), the current
Court required persons wishing to bring a class action for damages to notify each
member of the class at his own cost. If, as seems likely the same rules are applied to
injunctive or declaratory class actions, only the rich will be able to afford a class
action, despite the fact that its purpose was the equalization of litigation re-
sources between rich and poor.
III. RESTRICTIONS ON ATTORNEYS' FEES IN CONSTITUTIONAL CASES
Throughout most of our history, the availability of counsel in constitutional
cases has been accidental. The lack of an economic base forced persons seeking
to vindicate constitutional rights to rely on volunteer counsel provided by sym-
pathetic attorneys who donated their services to a cause. Much is owed to volun-
teers such as Clarence Darrow, Osmond Fraenkel, Charles Houston, William
Hastie and Arthur Garfield Hays, whose talent unlocked constitutional rights for
thousands of impoverished persons. However, reliance on volunteer counsel had
its obvious limitations. Availability was sporadic and never came close to meeting
the demand for legal services. Accordingly, as the public's perception of the role
of law grew closer to Pound's ideal, pressures for a full-time, professionalized
public interest bar grew apace. Hundreds of able lawyers, eschewing traditional
practice with its monetary rewards, hoped to embark on a career as representatives
of the politically powerless. In part, the public bar was subsidized by foundations;
in part by cause organizations such as the ACLU and the NAACP. The creation
of the OEO Legal Services Corporation was an important step toward institution-
alizing the public bar. The most promising source of support for an independent
public bar lay, however, not with the foundations; not with cause organizations
dependent on voluntary contributions; and not with the government. Rather
it lay with the traditional power of a court of equity to award counsel fees to a
deserving attorney in a case which benefitted society. Viewing the public bar as
private attorneys general, the lower Federal judiciary systematically awarded
counsel fees in appropriate cases to lawyers whose efforts had vindicated the
rights of the public. While rich awards were by no means automatic and by no
stretch of the imagination even close to what could be earned in the private sector,
court awarded fees did constitute an important source of financial support for the
public bar. In Alyeska Pipeline Service Co. v. Wilderness Society, 95 S. Ct. 1612
(1975), the current Supreme Court ended the practice of awarding attorneys'
fees in constitutional cases. In an ironic abuse of statutory construction, the Court
reasoned that since Congress had repeatedly expressly approved the awarding of
attorneys' fees in specific contexts, courts lacked the power to award such fees
in the absence of express Congressional approval. Following such reasoning
to its logical conclusion, when Congress wishes to approve a practice, it should
not expressly authorize it, for fear that the Supreme Court will forbid it in all
other situations. Whatever the merits of Alyeska Pipeline, it struck a sharp
blow at the public bar by cutting off its most promising economic base. Given
the depths of idealism that motivate the public bar and its proven resiliency,
it will doubtless survive — but in a weakened condition.
Coupled with the current Court's assault on the role of the lower Federal
judiciary and its unremitting hostility to class actions, its action in Alyeska
further threatens the ability to enforce the constitutional rights we have won over
the past 70 years.
IV. RESTRICTIONS ON REMEDIES
The fourth, and perhaps most disturbing, assault on the lower Federal courts
as an effective forum for the protection of constitutional rights involves a series of
Supreme Court decisions disabling the Federal courts from providing effective
relief — even in those cases where a Federal judge has found that a violation of
constitutional law has taken place. Thus, in Imbler v. Pachtman, — U.S. — (1976),
the current Court ruled that a Federal court lacks power to grant compensatory
damages to a person who has been the target of malicious and unconstitutional
action by a state prosecutor. See also, Pierson v. Ray, 386 U.S. 547 (1967) (ab-
68
solute immunity for judges) and Tenney v. Brandhove, 341 U.S. 367 (1951) (state
legislators immune). Similarly, in Edelman v. Jordan, 415 U.S. 651 (1974), the
current Court deprived the lower Federal courts of the power to award damages
against a state agency which had unlawfully injured a Federal plaintiff. Earlier
decisions had already deprived lower Federal courts of ability to grant damages
against municipalities. Monroe v. Pape, 365 U.S. 167 (1961) ; City of Kenosha v.
Bruno, 412 U.S. 507 (1973).
Thus, when a civil rights plaintiff seeks compensatory damages in a Federal
court he is likely to lose — even if he wins on the merits. If the defendant is a judge,
a state legislator, a prosecutor, or a local or state governmental agency, current
judge-made law deprives a Federal judge of the power to award damages. More-
over, even when such an absolute prohibition on damages is absent, the courts
have fashioned a good faith defense which, more often than not, will preclude a
damage award. E.g. Pier son v. Ray, 386 U.S. 547 (1967). It is no exaggeration to
characterize the current law of constitutional compensation in the Federal courts
as a trap for the unwary.
The current Court has linked its prohibition on damages with an equally
drastic assault on the power to grant effective injunctive relief in constitutional
cases. In Rizzo v. Goode, — U.S. — (1976), the current Court stripped the lower
Federal courts of the power to fashion flexible equitable decrees to deal with
police abuse. In Rizzo, a Federal judge, after a scrupulous and painstaking trial
which documented twenty instances of unredressed police abuse, ordered re-
sponsible city officials to institute a program for the resolution of civilian com-
plaints against the police. The Supreme Court reversed — after chastising the
trial judge for exceeding his appropriate role. Rizzo merely continued a trend
exemplified by O'Shea v. Littleton, 414 U.S. 488 (1974), in which the current
Court reversed a similar imaginative decree aimed at controlling rampant racial
discrimination in the administration of justice in Cairo, Illinois. If the current
trend continues, Federal judges will soon be stripped of the capacity to fashion
meaningful relief to prevent future violations of law. Indeed, it is merely a con-
tinuation of this trend which has led the Solicitor General to urge that Federal
judges be stripped by the Court of the power to order effective desegregation
decrees involving the transportation of pupils.
CONCLUSION
It is, of course, a truism to note that the value of a constitutional right is no
greater than the procedures which exist to vindicate it. A constitutional right
without a forum to enforce it is meaningless; a constitutional right without a
lawyer to enforce it is illusory; and a constitutional right for which no remedy
exists is downright dishonest. Yet, the sum and substance of the decisions of
the current Supreme Court lead inexorably and dishearteningly to precisely
such a dilemma. Indeed, much of the procedural retrenching of the current
Court appears to be a kind of guerilla warfare aimed at many of the more con-
troversial substantive decisions of the Warren era. Rather than forthrightly
confronting these decisions and seeking to reverse them openly, some members
of the current ■ Court appear to have chosen to reverse them covertly by dis-
mantling the apparatus needed for their enforcement. Reasonable persons may
agree or disagree with many of the substantive decisions of the Warren Court.
If they are to be reversed, however, it should be an open process after full argu-
ment; rather than by the cynical and covert emasculation of the Federal courts
which has been the disturbing pattern of the current Court. If, as Mr. Justice
Frankfurter observed, the history of liberty is inextricably bound up with pro-
cedure, the current Supreme Court has seriously endangered our liberties by
playing fast and loose with the procedures we have painstakingly erected to
protect them. It is time Congress put a stop to such unprincipled and high handed
behavior.
We call on this subcommittee to begin the process of examining specific legis-
lative remedies to deal with the obstacles the current Supreme Court has placed
in the way of judicial protection of constitutional rights. The American Civil
Liberties Union would welcome the opportunity to assist in this process.
Thank you.
69
[From the Washington Post, May 24, 1976. Reprinted by permission, Chicago Tribune-
New York News Syndicate, Inc.]
TOPPIX
B 24
® iu7D6iy,CH'c*gc T"bun* N- Y- N"»» *>»*• Ine.
All BigtiU Rtttrvxj
"Admit it. You just tike to see Aryeh Neier
of the ACLU gasp and fling up his hands in
horror.**
APPENDIX
Los Angeles County Bar Association,
Los Angeles, Calif., May 26, 1976.
Hon. John V. Tunney,
U.S. Senator,
Dirksen Senate Office Building, Washington, D.C.
Dear Senator Tunney: In our judgment, a major and entirely justifiable cause
of dissatisfaction with the justice system is the high cost of lawyers' services in
contested civil cases, caused in substantial part by the complex procedures that
have developed in the name of due process. Such procedures are not infrequently
used by one party to "wear down" the other party, a process which is not at all
consistent with the interests of justice.
We have attempted in the enclosed bill to develop a pilot program for drastically
simplified procedures in small civil cases which could merit the support of all
enlightened elements of the bar. To our knowledge, no similar legislation has been
adopted in any other state. The bill was recently passed by unanimous vote by
the State Assembly.
Sincerely yours,
Francis M. Wheat,
President.
(71)
72
AMENDED IN ASSEMBLY APRIL 29, 1976
CALIFORNIA LEGISLATURE— 1975-76 REGULAR SESSION
ASSEMBLY BILL No. 3704
Introduced by Assemblyman Knox
March 15, 1976
REFERRED TO COMMITTEE ON JUDICIARY
An act to add Part 3.5 (commencing with Section 1823) to
the Code of Civil Procedure, relating to stipulated procedure
in civil cases.
LEGISLATIVE COUNSEL'S DIGEST
AB 3704, as amended, Knox (Jud.) . Stipulated civil action
procedure.
Existing statutory law recognizes the right of parties to a
civil action to stipulate to matters concerning the action.
However, there is no specification as to the matters that may
be the subject of stipulation.
33*49 b& wouM provide generally that the parties to a ew#
action^ with court approval, may stipulate to limit er modify
any existing procedure governing the pleadings, pretrial
stage, or trial stage ef a eiv4l action.-
3%w btH would specifically establish three model formats
for stipulated procedure in implementation of the general
authority te stipulate conferred en the parties by the bittr
Under all three model formats -{A; B7 end G7-7 the provisions
applicable to the pleadings and t«a4 stages are alike, while the
pretrial etnd motion phases vary.
:Fhifl biH would provide, as respects aH three model formats,
the following important similarities, among others, with re/
73
AB3704 —2 —
gard te actions subject thereto;
-(if Priority over aH other eivil actions net given priority
pursuant te law?
-(&)■ Trial ef aH issues *» an action fey a court aftd «et by e
jwyr
•(d)- Permissible, bat net required, «se ef official briefs.
- -(4)- Permissible use ef written submissions ef direct test1
timony as specified.
•{§)• Prohibited me ef findings ef feet eg conclusions ef law
fey the court.
-(€f Permissible use ef pleading «* the alternative.
1 -iffy- Permissible extensions ef time upon agreement ef the
parties and without court approval, except as specified.
■(8f Prohibited «se ef discovery.
This fetH would provide, as respects important differences m
the three model formats, the following;
-ity Format B would require each party te file a statement
ef witnesses, physical evidence, anel theories, as specified,
which would fee hold fey the court until aH parties have filed
ouch statements e* the time fe* such filing has expired, a*
which time copies would fee transmitted te aH adverse parties.
A party would fee limited te calling those witnesses, introduce
«g such physical evidence, and relying en such theories as are
disclosed in- the statement. Format A would contain ne similar
provision.
-(£)• Format € would require the filing ef a statement ef the
ease fey each party which would include a statement ef the
facts, the party's legal contentions, a list ef aU known wit/
ncsscs, a summary ef the evidence te which each witness may
testify, and a list anel summary er copies ef aH documents and
physical evidence relevant te the case. Similar te Format ©7
these statements would fee filed with, and distributed te aeV
verse parties fey? the court. However, such statements would
fee subject te supplementation er amendment. Similar te Fer/
mat Bj the calling ef witnesses et&4 the introduction ef docu/
ments etf\4 physical evidence would fee limited te those
witnesses etn4 evidence disclosed m the statement. However,
unlike Format B-, ne provision is made fer the award ef legal
end other expenses te the adverse party fer investigation and
preparation where the party filing the statement docs net «se
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— 3— AB3704
the testimony of witneggeg ee introduce the documents e*
phygical evidence ligtcd m the statement.
This bill would require a pilot project to be conducted in
four municipal courts, or branches thereof, using Format B a
specified stipulated procedure in all cases tried therein, exclu-
sive of small claims court cases, except as specified.
This bill would require the Judicial Council to select such
municipal courts with the approval of the judge or a majority
of the judges of the municipal court district and the board of
supervisors of the county in which the judicial district is locat-
ed. ~ • ■ '
Under the pilot project all civil actions would be processed
and tried in accordance with the stipulated procedure estab-
lished by the bill except where the case is withdrawn for good
cause and in the interest of justice. The provisions of the pilot
project applicable to the trial stage are inapplicable to those
civil actions in which a jury trial is not waived.
This bill would as respects the pilot project procedures,
provide for the following:
(I) The elimination of any requirement of technical forms
of a pleading.
- (2) Permissible pleading of claims in the alternative or in-
consistently.
' (3) The prohibition of the use of discovery.
(4) The requirement that each party file a statement of
witnesses to be called and physical evidence to be introduced.
(5) The elimination of any requirement of pretrial confer-
ences.
(6) The elimination of the use or permissibility of demur-
rers or pretrial motions, except as specified.
(7) The permissive, rather than required, use of trial briefs.
(8) The permissive use of narrative testimony.
(9) The permissive use of written submissions of direct
testimony. _ .^ __^ —
(10) The admissibility of all relevant evidence other than
privileged information, except as privileged information is
presently admissible.
(II) The prohibition of the requirement or making of find-
ings of fact or conclusions of law.
This bill. would also provide generally that the parties to a
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AB3704 — 4 —
civil action, with court approval, may stipulate to limit or
modify any existing procedure governing the pleadings, pre-
trial stage, or trial stage of a civil action.
Specifically it would authorize the parties to stipulate to the
use of one of three alternative stipulated procedures.
Under one of the alternatives all procedures would be those
established for the pilot project. Under the other two alterna-
tives the provisions of the pilot project governing pleading
and trial would be applicable, but each alternative would
making varying provision for pretrial and motion practice.
This bill would require the Judicial Council to 4e each ef the
following;
■ft)- Conduct a study te indicate the changes m court rules
necessitated m implementing the provisions ef the h& e& ft
permanent bast*
-(8)- Make ft report ef its findings te the Covernor and the
Legislature ne later than an unspecified date.
-(d)- Conduct a 2/ycar conduct a study of the effects of the
pilot project and the voluntary use of stipulated procedures
by parties generally and report its findings annually to the
Covernor fts4 the Legislature.
This bill would become operative July 1, 1977.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
The people of the State of California do enact as follows:
1 SECTION 1. Part 3.5 (commencing with Section
2 1823) is added to the Code of Civil Procedure, to read:
3
4 PART 3.5. OF ALTERNATIVE PROCEDURES
5
6 TITLE h ALTERNATIVE STIPULATED
7
8 TITLE 1. PILOT PROJECTS
"9
10 .; Chapter 1. Legislative Findings and
11 Declarations
12
13 1823. The Legislature finds and declares that
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— 5— AB3704
1 experience with civil litigation in California teaches that
2 expense to the litigants has risen so as to deny access to
3 the courts in many instances. All too often a person
4 possessed of a valid claim must forego its enforcement or
5 accept a grossly inadequate out-of-court settlement
6 because the expense of enforcing it in court with
7 procedures as they now exist will exhaust the greater part
8 of his recovery. All too often a person must pay all or part
9 of an unjust claim against him because payment is a lesser
10 financial hardship than the expense of defense in court.
11 The Legislature further finds and declares that the
12 development of simplified procedures to reduce the
13 expense of litigation is inhibited by the absence from
14 present law of methods for experimentation with
15 procedural innovations to reduce expense. Hence, it has
16 not been possible to adopt the usual management
17 technique of a trial pilot program on a small scale of
18 changed methods of operation with the expectation that
.19 experience with the pilot program will permit its
20 permanent adoption in its designed form or with
21 modifications as experience dictates.
22 The Legislature further finds and declares that there is
23 a compelling state interest in the development of
24 pleading, pretrial, and trial procedures which will reduce
25 the expense of litigation to the litigants and there is
26 likewise a compelling state interest in experimentation
27 on a small scale with new procedures to accomplish that
28 result before those procedures are adopted statewide.
29 The provisions of this part are added to this code to adopt
30 the principle of experimentation in four municipal courts
31 or branches of municipal courts and to permit the parties
32 by stipulation to adopt their own methods of simplifying
33 pleading, pretrial procedure, and trial.
34
35 Chapter 2. Courts and Cases
36
37 1823.1. There shall be conducted in four municipal
38 courts, or branches of municipal courts, selected by the
39 Judicial Council with the approval of the judge or a
40 majority of judges of the district and the board of
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AB 3704 , — 6 —
1 supervisors of the county in which the judicial district is
2 located a pilot project for a period of three years to
3 achieve a fair sampling of the use of abbreviated
4 procedural requirements.
5 1823.2. All civil actions, excluding small claims court
6 cases, filed in the courts selected for the pilot project shall
7 be processed and 'tried in accordance with the
8 procedures set forth in this title except where the court
9 on the motion of a party or its own motion withdra ws the
10 case from the simplified procedure for good cause and in
11 the interest of justice.
12 1823.3. To the extent that rules governing pleading
13 and motion practice, pretrial procedures and trial are not
14 inconsistent with the procedures established in this title,
15 they are applicable to simplified proceedings pursuant to
16 this title.
17
18 Chapter 3. Pleadings
19
20 1824. (a) In any action which is governed by the
21 procedures under this title, the pleadings shall consist of
22 a complaint filed by the plaintiff, an answer filed by the
23 defendant, and a cross-claim filed by the defendant at his
24 election.
25 (b) Motions where permitted by this title shall be in
26 the form generally provided in the Code of Civil
27 Procedure.
28 1824.1. (a) No technical forms of a pleading are
29 required. Each allegation of a pleading shall be simple,
30 concise, and direct.
31 (b) A pleading which sets forth a claim for relief,
32 whether as a complaint or cross-claim, shall contain a
33 short and plain statement of the occurrence or
34 transaction upon which it is based showing that the
35 pleader is entitled to relief and a demand for judgment
36 for the relief to which he deems himself entitled. Claims
37 may be pleaded alternatively or inconsistently.
38 (c) An answer shall state in short and plain terms
39 defenses to each claim asserted and shall admit or deny
40 the allegations upon which the adverse party relies. A
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— 7 — AB3704
1 denial may be for lack of information or belief.
2 Affirmative defenses must be affirmatively pleaded in
3 short and plain terms in an answer.
4 (d) Allegations in a pleading to which a responsive
5 pleading is required are deemed admitted if not denied.
6 (e) All pleadings shall be construed to do substantial
7 justice. Iffra ud or mistake is alleged as the basis of a claim
8 or defense, the circumstances of the fraud or mistake
9 shall be stated with particularity.
10 1824.2. The Judicial Council may adopt and
11 promulgate rules governing the pleading of causes
12 conducted in the pilot project. The rules shall be
13 consistent with this chapter, and unless inconsistent shall
14 control in the proceedings to which they apply.
15
16 Chapter 4. Pretrial and Motion Practice
17
18 1825. No discovery shall be permitted in any action
19 governed by the procedures in this title.
20 1825.1. (a) Each party shall file with the court a
21 statement of witnesses and physical evidence within 45
22 days after the date the case is at issue.
23 (b) The statement shall include the names and
24 addresses of witnesses the party intends to call and a
25 description of the physical and documentary evidence
26 the party intends to produce with copies of the
27 documents the party intends to rely upon at trial. A party
28 is not required to identify witnesses, physical evidence, or
29 documents which he will use only for impeachment.
30 1825.2. The court shall hold statements filed with it
31 under seal until it has received the statements of all
32 parties to the action or the time for filing statements has
33 expired. The court then shall contemporaneously
34 transmit copies of the statements to the adverse parties.
35 1825.3. A t trial a party may call as witnesses only those
36 persons disclosed by him and introduce only physical
37 evidence and documents identified in the statement,
38 except where relief is granted for any of the causes
39 specified in Section 473. If relief from a statement is
40 granted, the adverse party shall be entitled to a
79
AB3704- —8 —
1 continuance to meet the new evidence. Production of
2 evidence for impeachment is not limited.
3 1825.4. Pretrial conferences are riot required;
4 however, counsel should communicate personally or by
5 telephone in an effort to narrow the issues prior to trial
6 or to resolve the disputes.
7 1825.5. No demurrer or> pretrial motion shall be used
8 or permitted in any action governed by the procedures
9 in this title except as follows:
10 (a) One motion may be made by the defendant to
1 1 dismiss the action on the ground of a jurisdictional defect
12 or on the ground that the complaint does not give notice
13 of a claim upon which relief can be granted.
14 (b) Motions may be made for a continuance of the
15 action for good cause.
16 (c) A motion may be made to withdraw the action
17 from the controls of the procedure under this title for
18 good cause.
19 (d) One motion may be made by each party for
20 summary judgment or partial summary judgment
21 (e) Motions for change of venue.
22
23 Chapter 5. Trial
24
25 1826. If possible, the date for trial shall be set within
26 20 days from the date the court distributes the statement
27 of witnesses and physical evidence in accordance with
28 Section 1825.2.
29 1826.1. Where a jury is demanded, and the case is
30 tried to a jury, the trial shall not be conducted in
31 accordance with this part, but shall be conducted in
32 accordance with the procedures established in this code
33 other than in this part. Where a jury is waived, the trial
34 shall be conducted as set forth in Section 1826.2 to 1826. 14,
35 inclusive.
36 1826.2 An opening statement to the court by counsel
37 for the parties shall be permitted in the manner and for
38 the duration determined in the discretion of the court.
39 1826.3. Trial briefs shall be permitted, but shall not be
40 required.
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1 1826.4. The counsel for the parties and the trial judge
2 may interrogate the parties and witnesses. Narrative
3 testimony shall be permitted.
4 1826.5. The trial judge shall have the discretion to
5 determine the order in which the evidence is introduced
6 and the trial is conducted. ,
7 1826.6. Written submissions of direct testimony shall
8 be ^permitted if the court determines that such
9 submissions will result in a saving of time for the court
10 ... and counsel.
11. 1826.7. Upon agreement of the parties and with
12 > consent of the court, proceedings under this title may be
13 _ recorded by video tape, electronic recording, or court
14 . reporters.
15 1826.8. No privileged information shall be admissible,.
16 except as provided in Division 8 (commencing with
17 . Section .900) of the Evidence Code. Subject to the
18 : provisions of Section 352 of the Evidence Code, all other
19- evidence relevant to the action shall be admissible. The
20 1 trial judge shall determine the weight to be accorded any
21.. admissible evidence.
221 . 1826.9. The trial judge, in his discretion, may permit
23- a pleading to be amended to conform to proof
241 - 1826.10. Closing arguments by counsel shall he
25. permitted in the manner and for the duration
261 determined in the discretion of the court.
ZIL 1826. 11. Findings of fact or conclusions of la w shall not
28. -be required or made in any action tried pursuant to this
29. title. Upon request of any party to the action, the court
30 shall issue a brief explanation of its decision either orally
31„ or in writing. .-_- .
32: 1826. 12. Any motion which may be made after trial in
< 33 ~ the court pursuant to law may he made in any action tried
34 pursuant to this title.
35; ' 1826.13: The effect of a judgment or final order in any
36t" action tried pursuant to the provisions of this title, in
37. respect to the matter or matters directly adjudged, is
38: conclusive between the parties and their successors in
39T interest but shall not operate as collateral estoppel of a
40 party in other litigation with a person who was not a party
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AB3704 — 10 —
1 to the action in which the judgment or order is rendered.
2 1826.14. Any party shall ha ve the right to appeal any
, 3 judgment or final order pertaining to an action go verned
4 by this title consistent with the law governing such
5 appeals.
6
7 TITLE 2. ALTERNATIVE STIPULATED
8 PROCEDURES
9
10 Chapter 1. Stipulations of Parties
11
12 1827. The parties to any civil action may, with the
13 approval of the court, stipulate to limit or modify any
14 existing procedure governing the pleading, proceedings
15 before trial, or trial of the action.
16 1827.1. Any court or judge may develop forms of
17 stipulations modifying existing procedures to be used,
18 modified or rejected by parties as they see fit.
19
20 Chapter 2. Statutory Forms of Stipulated
21 . Procedure
22
23 1828. The procedures set forth in this chapter are
. 24 applicable to any action in any superior, municipal, or
25 justice court other than a m unicipal court in which a pilot
26 project is under way pursuant to Section 1823 when
27 adopted by all the parties appearing in the action by
• 28 stipulation. Where they are utilized by stipulation, the
29 judgment or final order in the action is conclusive
30 between the parties and their successors in interest as to
31 matters directly adjudged or determined, but shall not
32 operate as a collateral estoppel of a party in other
33 litigation with a person not a party to the action in which
34 the judgment or order is rendered.
35 1828.1. The parties to any civil action may stipulate to
36 the use of the procedures set forth in Section 1829,
37 Section 1830, or Section 1831. Nothing in this section
38 precludes the parties from other forms of stipulation
39 pursuant to Section 1827.
40 1829. (a) When the parties to any civil action
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1 stipulate to the use of the procedures in this section, the
2 procedure of pleading and trial shall be as set forth in
3 Sections 1824 to 1824.2, inclusive, and Sections 1826 to
4 1826.14, inclusive. Cases in which the stipulation is
' 5 entered shall be entitled to priority in trial over all actions
6 not otherwise entitled to priority.
7 (b) No discovery shall be permitted. No demurrer or
. 8 pretrial motions shall be permitted except: (1) one
9 motion may be made by the defendant to dismiss the
10 action on the grounds of a jurisdictional defect or that the
11 complaint does not give notice of a claim upon which
12 relief can be granted; (2) motions for continuance for
13 good cause; and (3) motions to withdraw the action from
14 the stipulated procedure upon a showing of good cause.
15 1830. When the parties to any civil action stipulate to
16 the use of the procedures in this section, the procedure
17 of pleading, pretrial, and trial, shall be that set forth in
18 Sections 1824 to 1826.14, inclusive. Cases in which the
19 stipulation is entered shall be entitled to priority in trial
20 over all actions not otherwise entitled to priority.
21 1831. (a) When the parties to any civil action
22 stipulate to the use of the procedures in this section, the
23 procedure of pleading and trial shall be as set forth in
24 Sections 1824 to 1824.2, inclusive, and 1826 to 1826.14,
25 inclusive. Cases in which the stipulation is entered shall
26 be entitled to priority over all actions not otherwise
27 entitled to priority.
28 (b) No discovery shall be permitted.
29 (c) In lieu of discovery:
30 (1) Each party shall file with the court a statement of
31 the case within 45 days from the date the case is at issue.
32 (2) Subject to the rules of privileged information, as
33 set forth in Division 8 (commencing with Section 900) of
34 the Evidence Code, the statement of the case shall
35 include each of the following:
36 (i) A statement of the facts.
37 (ii) A statement of the party's legal contentions,
38 including brief citations to relevant and pertinent case
39 law and statutory law.
40 (Hi) A written statement of the evidence to which
83
AB3704 — 12 —
1 each witness which the party intends to call may testify,
2 together with a list under oath in the manner prescribed
3 in Section 2030 for answering interrogatories of the
4 following:
5 (A) A list of all known persons with knowledge of the
6 facts of the controversy, favorable and unfavorable,
7 including addresses and telephone numbers, if known.
8 (B) A list of all documents and physical evidence
9 relevant to the case and copies of the documents.
10 (iv) A statement of the case shall constitute an
11 admission, but shall be deemed denied by the adverse
12 parties.
13 , (v) The court shall hold statements of the case Bled
14 with it under seal until it has received statements from all
15 parties to the action or the time for filing statements has
16 expired. If any party has not filed a statement, the clerk
17 shall give notice in writing tha t unless a sta tern en t is filed
18 within 10 days the party s pleading shall be stricken. If a
19 statement is not Hied within the 10-day period, the court
20 shall strike the pleadings of the party in default. The court
21 then shall contemporaneously transmit copies of the
22 statements to the adverse parties.
23 (vi) If a party deems that a statement of the case filed
24 by an adverse party is unclear, uncertain, or ambiguous,
25 he may, by written demand, specify the deficiencies in
26 the statement and demand that the party that filed the
27 statement clarify the statement by a supplement to be
28 served and filed within 20 days of the notice. If the
29 adverse party does not adequately respond to the
30 demand, the party serving the notice may, within 20 days
31 after response is received or upon lapse of time within
32 which the response may be made, make a motion
33 requesting the court to order such clarification.
34 (vii) A party may supplement or amend his statement
35 of the case (A) by stipulation of the parties, or (B) by
36 motion at the time of trial upon a showing of good cause
37 as specified in Section 473, a showing of lack of prejudice
38 to adverse parties, and a showing that the substance of
39 the supplement or amendment was communicated to
40 adverse parties by formal written notice at the earliest
84
— 13— AB3704
1 reasonable time. The trial court may grant a continuance
2 to the adverse party where it permits a supplement or
3 amendment to the statement of the case.
4 (viii) Except as the court may permit in the interest of
5 justice and upon such conditions as are necessary to
6 protect the rights of adverse parties, only persons
7 identified in the statement of the case may be called as
8 witnesses by the party filing the statement, and only
9 physical evidence and documents described in the
10 statement may be introduced.
11 (d) Pretrial conferences are not required; however,
12 counsel should communicate personally or by telephone
13 in an effort to narrow the issues prior to trial or to resolve
14 the dispute. \
15 (e) No demurrer or pretrial motion shall be used or
16 permitted in any action governed by these procedures
17 except:
18 (1) A motion may be made by the defendant to dismiss
19 the action on the ground of a jurisdictional defect or that
20 the complaint does not state a claim.
21 (2) Motions may be made for a continuance of the
22 action for good cause.
23 (3) Motion may be made to withdraw the action from
24 the controls of the stipulated procedure under this title
25 for good cause.
26 (4) One motion may be made by any party for
27 judgment on the ground that the pleadings, as
28 supplemented by admissions in the statements of the
29 case, entitle such party to a judgment.
30 (5) One motion may be made by each party for
31 summary judgment or for partial summary judgment.
32 (6) A motion to clarify the statement of the case.
33 1832. The Judicial Council may devise and
34 promulgate forms to facilitate the use of the alternative
35 forms of stipulated procedure designated in Sections
36 1829, 1830, and 1831.
85
AB3704 — 14 —
1 TITLE 3. JUDICIAL COUNCIL STUDY
2 AND OPERA TIVE DA TE
3
4 1833. The Judicial Council shall conduct a study of the
5 effects of the pilot project established in Title 1
6 (commencing with Section 1823) of this part and the
7 voluntary use of the stipulated procedures permitted by
8 Title 2 (commencing with Section 1827) of this part and
9 shall make an annual report of its findings to the
10 Legislature.
11 1833.1. The provisions of Title 1 (commencing with
12 Section 1823) of this part and of Section 1833 shall be
13 implemented by the Judicial Council only when and to
14 the extent that funds are made available to implement
15 the pilot project set forth in Title 1 (commencing with
16 Section 1823) of this part and the study set forth in
17 Section 1833.
18 1833.2. The provisions of this part shall become
19 operative on July lf 1977.
20
21 . : PROCEDURE
22
23 ClIAPTEn h CENEIIAL PROVISIONS
24
25 4883r ¥he parties te ft eivd action, with approval ef the
26 court, mey stipulate te limit er modify any existing
27 procedure governing the pleadings, pretrial stage, eg trial
28 stage ef such eivil action.
29 1828.1. The procedural requirements set ferth m Title
30 3 (commencing with Seetieft ±88&fc Title 8 (commencing
31 with Section 1808), and Title 4 (commencing with
32 Section 1831) are intended as models fer individually
33 developed stipulated procedures ift eivil actions as
34 permitted ey Section 48Q8r
35 18B3.fl. The fotlieial Council shall have the pewer te
36 devise a»d promulgate forms fer statements ef the ease
37 as required m Sections 1830.1 arte! 183Q.Q te he used ift
38 common categories ef litigation.
39 1803.3. The Judicial Council shal* conduct a study te
40 indicate the changes ift court rules which shaU he
86
— 15 — AB 3704
' ' ' *
1 required to implement the proviaiono contained m Title
2 4- (commencing with Section 1823) , Title 2 (commencing
3 with Section 1825) , Title 3 (commencing with Section
4 4£28h and 3^ 4 (commencing w#fe Section 1831 > ea ft
5 permanent basis aftd to make ft report of its findings to
6 the Covcrnor aftd to the Legislature »o later than
7 I I I h
8 1823.4. The Judicial Council shall conduct ft two/year
9 study of the effects of the pilot project catabliahed m
10 Chapter 2 (commencing with Section 1824) dftd the
11 voluntary «se of stipulated proccduroo permitted by
12 Section ±823 and shah make ftft annual report of its
13 findinga to the Governor a»d to the Lcgialaturo.
14
15 -. CiiArTEn 2t Pilot PnojECT
16
17 1824. There shall he conducted m few municipal
18 courts, or branches of municipal courts, selected by the
19 Judicial Council with the approval of the judge or a
20 majority of judges of the district aftO; the board of
21 supcrviaora of the county ift which the judicial diatrict is
22 located, ft two/year pilot project to achieve ft fair sampling
23 of the use of abbreviated procedural requirements »
24 divergent demographic ftnd financial constituencies.
25 1824.1. AH eivil ftetiertsr excluding small etofts eettrt
26 eases; filed ift the eotsrts aclcctcd for the pilot projeet shall
27 he proccascd aftd tried ift accordance with the
28 proccdurca, as to plcadinga and the pretrial aftd trial
29 stages of sueh eases? set forth ift :Pitle 3 (commencing with
30 Section 1828) , except as followa;
31 -(a)- Gases shall he withdrawn from- the simplified
32 procedure format where there is a timely demand for
33 j«ry trial by any party.
34 -{b)- The court may withdraw a ease frerft the
35 simplified procedure format Oft its owft motion ift the
36 interests of justice:
37 1824.2. Notwithstanding any provision ift Title 3
38 (commencing with Section ±&28> a party ift a ease ift a
39 eewt aclcctcd for the pilot project may make a motion for
40 a change of venue.
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AB3704 — 16 —
1 TITLE fir ALTERNATIVE STIPULATED
2 PROCEDURES FORMAT A
3
4 CiiAPTEn h Pleadings
6 1805; -(e)- ift any action which is governed fey the
7 procedure;? tmder this title; there shaH he ft complaint and
8 ft» angvvcr; a reply te ft counterclaim denominated fts
9 such; and ft» answer te ft cross/claim, tf the answer
10 contains ft cross/claim. Ne other pleading shall he
11 allowed, except that the court may order a reply te a»
12 answer.
13 -ih)- Aft application te the eewt fer a» order shall he hy
14 motion which, tmless made during ft hearing er trial; shaH
15 fee made i» writing, shall state with particularity the
16 grounds therefor, anid shaH set forth the relief er order
17 sought. The requirement ef a writing is fulfilled if the
18 motion is stated ift a written notice ef the hearing ef the
19 motion.
20 1805.1. -(a)- A pleading which sets ferth a claim fer
21 relief, whether an original claim, counterclaim, er
22 cross/claim, shaH contain a shert and plaift statement ef
23 the claim showing that the pleader is entitled te relief,
24 and a demand fer judgment fer the relief te which he
25 deems himself entitled. Relief in the alternative er ef
26 several different types may be demanded.
21 -(e)- A party shaH state m short and plaift terms his
28 defenses te each claim asserted and shaH admit er deny
29 the averments taper* whieh the adverse party reliesr U he
30 is without knowledge er information sufficient te form a
31 feelief as te the trftthef art averment, he shaH se state and
32 this shall have the effect ef a denial. Denials shaH fairly
33 meet the substance ef the averments denied. When a
34 pleader intends ift good faith te deny enly a part er a
35 qualification ef aft averment, he shaH specify se frmeh ef
36 it as is true and material and shaH deny erfty the
37 remainder. Unless the pleader intends ift good faith te
38 controvert aH the averments ef the preceding pleading,
39 he may make his denials as specific denials ef designated
40 averments er paragraphs, er he may generally deny aH
88
— 17 — AB 3704
1 the Qvcrmcnto except ouch designated averments er
2 paragraphs as he expressly admits; feet; when he does se
3 intend te controvert aH its averments, including
4 averments ef the grounds upon which the court's
5 jurisdiction depends, he «*ay de se fey general denial
6 subject te the obligation set forth in Section 1831.4.
7 -(e)- fe pleading te a preceding pleading, a party shell
8 set forth affirmatively accord and satisfaction, arbitration
9 end award, assumption ef risk? discharge m bankruptcy,
10 duress, estoppel, failure ef consideration, fraud, illegality,
11 injury fey fellow servant, laches, license, payment, release,
12 res judicata, statute ef frauds, statute ef limitations,
13 waiver, aftd any other matter constituting a» avoidance
14 er affirmative defense. When a party has mistakenly
15 designated a defense as a counterclaim er a counterclaim
1 f\ ■***■» ja. ^-< ^ XT j-w »nny% fel^^a ^^-« *■*»*- Qjj f fty. -fr-\ i-i « i- lu^ua^ aa rrnntriOQ ■ i h n tf
XO tCJ tt tJtrrtrfttFtrj exits trtTtxrr uii ten my, it jtRftxctr trc? i u^uii v^j, jxiu.ii
17 treat the pleading as if there had been a preeer
18 designation.
19 -(4)- Averments in a pleading te which a responsive
20 pleading is required, other than those as te the amount ef
21 damage, are admitted when net denied » the responsive
22 pleading. Averments in a pleading te which «e
23 responsive pleading is required er permitted shall fee
24 taken as denied er avoided.
25 -(e)- -fty Each averment ef a pleading shall fee simple,
26 concise, and direct. Ne technical forms ef pleadings er
27 motions are required.
28 ■(&)• A party may set forth twe er more statements ef a
29 claim er defense alternately er hypothctically, cither in
30 ene eeent er defense er in- separate eeents er defenses.
31 When twe er more statements are made in the
32 alternative and ene ef them if made independently
33 would fee sufficient, the pleading is net made insufficient
34 fey the insufficiency ef ene er more ef the alternative
35 statements. A party may else state as many separate
36 claims er defenses as he has regardless ef consistency and
37 whether based en legal er equitable grounds. AH
38 statements shall fee made subject te the obligations set
39 ferth in Section 1831.4?
40 -(f)- AH pleadings shall fee se construed as te de
2— ab3704
89
AB3704 —18 —
1 9ubgtantial justice.
2 18Q5.Q. -(»)- & is ftet necessary to aver the capacity of
3 a party to st*e or be sued or the authority ef ft party to st*e
4 ef be sued t» ft rcprcoontativG capacity or the legal
5 existence ef aft organized aggociation ef persons that »
6 made ft party, except to the extent required to show the
7 jurisdiction of the court. When ft party degires to raise ftft
8 issue as to the legal existence ef ftfty party or the capacity
9 ef ftfty party to svte or be sued or the authority ef ft party
10 to st*e or be sued m ft representative capacity, he shall do
11 so by specific negative averment, which shall include
12 such supporting particulars as are peculiarly within the
13 pleader's knowledge.
14 -(b)- 1ft a« averments of fra«e or- mistake, the
15 circumstances constituting fraud or mistake shall be
16 stated with particularity. Malice, intent, knowledge, ftftd
17 other condition of mind ef a person fftay be averred
18 generally.
19 -(e)- ift pleading the performance or occurrence of
20 conditions precedent, tt is sufficient to aver generally that
21 ft« conditions precedent have been performed er have
22 occurred. A denial of perferfftaftee or occurrence shaft be
23 made specifically arte with particularity.
24 -(4)- lft pleading aft official document or official ete^ it is
25 v sufficient to aver that the document was issued or the aet
26 done ift compliance with ktw?
27 -(e)* h* pleading a judgment or decision of a domestic
28 or foreign eoftrt; judicial or quasi/judicial tribunal, or of a
29 board or officer, it is sufficient to aver the judgment or
30 decision without setting forth matter showing
31 jurisdiction to render itr
32 -(f)- For the purpose of testing the sufficiency ef a
33 pleading, averments ef time &&4 place are material aftd
34 shall be considered like all other averments ef material
35 matter.
36 -(g)- When items of special damage are claimed, they
37 shall be specifically stated.
38 1825.3. -(a)- Every pleading aftd motion shall contain
39 a caption setting forth the name of the court, the title ef
40 the action, the file number, aftd a designation- as in
90
-—19— AB3704
1 subdivision -fa)- ef Section 1831. Ift the complaint the title
2 of the action shall include the names ef aft the parties, bat
3 » other pleadings it is sufficient te state the name ef the
4 first party eft each siee with aft appropriate indication ef
5 other parties.
6 -(e)- Aft averments ef claim er defense shall be made m
7 numbered paragraphs, the contents ef each ef which shall
8 he limited as for as practicable te a statement ef a single
9 set ef circumstances; ane a paragraph rrtay he referred te
10 hy number m aft succeeding pleadings. Each claim
-11 founded upon a separate transaction er occurrence ane
12 each defense other than denials shall he stated m a
13 separate count er defense whenever a separation
14 facilitates the clear presentation ef the matters set forth.
15 -fe)- Statements in- a pleading may he adopted by
16 reference m a different part ef the same pleading er ift
17 another pleading er ift arty motion. A copy ef afty written
18 instrument which is aft exhibit te a pleading is a part
19 thereof fer aft purposes.
20 18S5.1 Every pleading ef a party represented by aft
21 attorney shall be signed by at least ene attorney ef record
22 ift his individual name, whoso address shall be stated. A
23 party whe is ftet represented by aft attorney shall sigft his
24 pleading arte state his address. Pleadings 3nall be verified
25 . t» the manner set forth t» Section 446r The signature ef
26 a» attorney constitutes a certificate by hif» that he has
27 read the pleading; that te the best ef his knowledge,
28 information, afte belief there ts good ground te support
29 it; aftd that 4t is ftet interposed fer delay. U a pleading is
. 30 «et signed er is signed with intent te defeat the purpose
31 ef this section, i^ may be stricken as sham an4 false a«e
32 the action may proceed as though the pleading had ftet
33 beeft served. Fer a wiftfift violation ef this rtfte aft attorney
34 may be subjected te appropriate disciplinary action.
35 Similar action may be taken if scandalous er indecent
36 matter is inserted.
37 1805.5. -(a)- A defendant shaft serve his answer within
38 80 days after the service ef the summons arte complaint
39 upon him, except when a different time is prescribed m
40 am order ef the court. A party served with a pleading
91
AB3704 — 20 —
1 otQting a cross/claim againat him shall 3crvc an anowcr
2 thereto within 80 days after the 3crvico upon him. :¥he
3 plaintiff shall serve his reply te ft counterclaim ift the
4 answer within 00 days after service ef the answer or? if a
5 reply is ordered by the court, within 80 days after service
6 ef the order, unless the; order otherwise directs. :Fhe
7 service ef ft motion permitted under this title alters these
8 periods te time as follows, unless ft different time is fixed
9 by order ef the court; -(4-)- if the court denies the motion
10 er postpones its disposition until the trial en the merits,
11 the responsive pleading shall he served within 40 days
12 after notice ef the court's action; -(8)- if the court grants
13 ft motion for a more definite statement the responsive
14 pleading shall he served within 40 days after the service
15 ef the more definite statement.
16 -(e)- Every defense, in law er faet? te ft claim for rehef
17 i» any pleading, whether ft claim, counterclaim,
18 cross/claim, er third/party claim, shall he asserted m the
19 responsive pleading thereto if one is required. Ne
20 defense er objection is waived hy being joined with one
21 er more other defenses er objections m a responsive
22 pleading, if a pleading sets forth a claim fer relief te
23 which the adverse party is set required te servo a
24 responsive pleading, he may assert ftt the trial e&y
25 defense in law er feet te that claim fer relief.
26 1885.6. -fa> A pleading shall state as a counterclaim
27 any claim which at the time ef serving the pleading the
28 pleader has against any opposing party, if t^ arises etrt ef
29 the transaction er occurrence that is the subject matter
30 ef the opposing party's claim and docs not require fer its
31 adjudication the presence ef third parties ef whom the
32 court cannot acquire jurisdiction. B«t the pleader need
33 net state the claim if -ft)- et^ the time the action was
34 commenced the claim was the subject ef another
35 pending action, er -(Sf the opposing party brought s«it
36 upon his claim hy attachment er other process hy which
37 the court did net acquire jurisdiction te render a personal
38 judgment en that claim, and the pleader is not stating arty
39 counterclaim under this section..
40 -(h)- A pleading may state as a counterclaim any claim
92
— 21— AB3704
1 against an opposing party net arising e«t ef the
2 tranaaotion er occurrcnco that is the subject matter ef the
3 opposing party's claim. ,
4 -(e)- A counterclaim may er may net diminish er defeat
5 the recovery sought by the opposing party, ft may claim
6 relief exceeding m amount et* different m kind from that
7 sought tft the pleading ef the opposing party.
8 -(d)- A claim, which cither matured er was acquired fey
9 the pleader after serving his pleading may, with the
10 permission ef the court, fee presented as a counterclaim
11 fey supplemental pleading.
12 -(e)- When a pleader fails te set «e a counterclaim
13 through oversight, inadvertence, er excusable neglect, er
14 when justice requires, he may fey leave ef court set vtp the
15 counterclaim fey amendment.
16 -(f)- A pleading may state as a cross/claim arty claim fey
17 ene party against a coparty arising et*t ef the transaction
18 er occurrence that is the subject matter cither ef the
19 original action er ef a counterclaim therein er relating te
20 any property that is the subject matter ef the original
21 action. Such cross/claim may include a claim that the
22 party against whom it is asserted is er may fee liable te the
23 cross/claimant fer att er part ef a claim assorted m the
24 action against the cross/claimant.
25 18B5.7. A party may amend his pleading once as a
26 matter ef course at any time before a responsive pleading
27 is served er? if the pleading is ene te which ne responsive
28 pleading is permitted and the action has net been placed
29 ttpen the trial calendar, he may se amend it at any time
30 within 29 days after it is served. Otherwise a party may
31 amend his pleading etdy with permission ef the court er
32 fey written consent ef the adverse party; and permission
33 shall fee freely given when justice se requires. A party
34 shall plead in response te an amended pleading within
35 the time remaining fer response te the original pleading
36 er within 10 days after service ef the amended pleading,
37 whichever period may fee the longer, unless the court
38 otherwise orders.
39 1805.8. Extensions ef time are permissible upon
40 agreement ef the parties without court approval tmtil the
93
AB3704 —22 —
1 lapac ef three year 9 after which the action may fee
2 dismissed eft the court'o ewft motion.
3
4 CHAPTER On Pl\ETI\IAL ANB MOTION PnACTICE
5
6 1826. Ne diacovcry shall fee permitted m aay action
7 governed fey the procedure m this title?
8 1826.1. Ne demurrer ep pretrial motion shall fee uacd
9 ef permitted m a»y aetieft governed fey tfee procedure m
10 this titlo^ except as followa?
11 -(a)- ©»e motion may fee made fey the defendant te
12 diamiaa the aetieft eft the ground ef a jurisdictional defect
13 er en the ground that the complaint dees «et give notice
14 ef a claim upon which relief eaft fee granted.
15 -(fe)- Motions may fee made fera continuance ef the
16 action fe* good caugc.
17 -(e)- Motions may fee made te withdraw the action from
18 the controlg ef the gtipulatcd procedure under this title
19 fe* good caugc. t
20 f
21 Chapter 3r Trial
22
23 1827. The eet*rt shall give aft aetieft whieh is governed
24 fey the procedure ift this title priority over alt the ether
25 eivil actiona whieh are ftet giveft priority purguant te law?
26 1827.1. Igauca ef a» action governed fey the procedure
27 ift this title shaU fee tried fey the eewt aftd »et fey a jury?
28 1827.2. Aft opening atatcment te the eewt fey counacl
29 fer tfee partica shall fee permitted m the manner aftd fer
30 the duration determined ift the diacrction ef the court.
31 1827.3. Trial briofa shaU fee permitted, fewt are ftet
32 required.
33 1827.4. The eetmsel fo* the parties and the trial judge
34 may interrogate the partica aftd witneaaoa. Narrative
35 testimony shall fee permitted.
36 1827.5. The trial judge shall have the diacrction te
37 determine the order ift which the evidence is permitted
38 and the trial is conducted.
39 1827.6. Written aubmiasiona ef direct testimony shall
40 fee permitted if the court dctcrminca tfeat st*eh
72-948 O - 76
94
— 23— AB3704
1 submissions wtU result m a saving ef time fer the eettft
2 ftftd counsel.
3 1827.7. Upon agreement ef the parties €&*& with
4 consent ef the court, proceedings under this title tftfty be
5 recorded by video tape, electronic recording, er court
6 reporters. >
7 1827.8. Ne privileged information shall be admissible,
8 except fts provided ift Division 8 (commencing with
9 Section 900)- of the Evidence Code. AH other evidence
10 relevant te the action shall be admissible. The trial judge
11 shftH determine the weight te ee accorded any admissible
12 evidence.
13 1827.0. The triftl judge, ift his discretion, mey permit
14 ft pleading te ee amended te conform te the proof.
15 1827.10. Closing arguments by counsel shall he
16 permitted ift the manner aftd for the duration
17 determined ift the discretion ef the court.
18 1827.11. Findings ef faet er conclusions ef Iftw shall net
19 he required er made m any action tried pursuant te this
20 title. Upon request ef any party te the action, the court
21 shall issue ft brief explanation of its decision cither orally
22 er m writing.
23 1827.12. Any posttrial motion which tftfty he made ift
24 the particular court pursuant te Iftw may he made ift ftfty
25 action tried pursuant te this title.
26 1827.13. The effect ef ft judgment er fiftftl order ift any
27 action tried pursuant te the provisions ef this title, ift
28 respect te the matter er matters directly adjudged, is
29 conclusive between the parties ftftd their successors ift
30 . interest, fe any succeeding action between the same
31 parties eft ft different cause ef action, such judgment shall
32 net operate fts ftft estoppel er conclusive adjudication fts
33 te ftfty issue ift such succeeding action.
34 1827.14. Afty party shall have the right te appeal ftfty
35 judgment er final order pertaining te ftft action governed
36 by this title consistent with the Iftw governing such
37 appeals.-
95
AB 3704 — 24 —
*
1 TITLE & ALTERNATIVE STIPULATED
2 PROCEDURE / FORMAT &
■3 '•• .:• V
4 ClIAPTEIl ±r Pleadingg
5
6 1808. -fa> fe €t»y action which is governed fey the
7 procedures oftder this title? there shall We a complaint aad
8 a» answer; ft reply te ft counterclaim denominated as
9 auch; ftftd a» answer te ft cross/claim, if the anowcr
10 containo ft cross/claim. Ne other pleading shall fee
11 allowed, except that the court fftay order a reply te a»
12 anowcr.
13 -ffe)- Aft application te the eewt for aft order shall fee fey
14 motion whieh; oftless fftade during a hearing or tr4aH shell
15 fee made m writing, shall state with particularity the
16 grounds therefor, and shaU set forth the relief or order
17 sought, ^^e requirement of a writing is fulfilled if the
18 motion is stated ift a written notice of the hearing of the
19 motion.
20 1808.1. -(ft)- A pleading which sets forth ft claim for
21 relief, whether aft original claim, counterclaim, or
22 cross/claim, shall contain a short and plain statement of
23 the ekkft showing tfeat the pleader is entitled to relief;
24 a«o! a demand for judgment for the relief to wfeieh he
25 deems himself entitled. Relief m the alternative or of
26 several different types fftay fee demanded.
27 -(fe> A party shell state ift short and plain terms his
28 defenses to eeeh eleifft asserted and shall edmit or defty
29 the averments open whieh the adverse party rehesr tf he
30 is without knowledge or information sufficient to ferrft a
31 feelief as to the trttth of aa averment, he shall so state artd
32 this shall have the effect of ft denial. Denials shftH fairly
33 meet the substance of the averments denied. When ft
34 pleader intends ift good faith to deny only ft part or ft
35 qualification of ftft averment, he shall speeify so frmeh of
36 it as is true ftftd material ftftd shdH deny oftly the
37 remainder. Unless tfee pleader intends ift good faith to
38 controvert aH the averments of the preceding pleading,
39 he fftay make his denials as specific denials of designated
40 averments or paragraphs, or he fftay generally 4eny aH
96
— 25— AB3704
1 the averments except ouch designated averments er
2 paragraphs as he expressly admits; but? when he docs se
3 intend te controvert aU its averments, including
4 averments ef the grounds upon which the court's
5 jurisdiction depends, he fftfty de se by general denial
6 subject te the obligation set forth m Section 1828.4.
7 -(e)- te pleading te ft preceding pleading, ft party shall
8 set forth affirmatively accord and satisfaction, arbitration
9 ftftd award, assumption ef risk; discharge m bankruptcy,
10 duress, estoppel, failure ef consideration, fraud, illegality^
11 injury by fellow servant, laches, license, payment, release,
12 res judicata, statute ef frauds, statute ef limitations,
13 waiver, ftftd arty other matter constituting ft» avoidance
14 er affirmative defense. When ft party has mistakenly
15 designated ft defense as ft counterclaim er ft counterclaim
I n ft Q £± ii £7hw ""^""^ **< ***» fcj3 "*■ A^fcl mjafc ^^*^ I- j^ *» «-ir-v i-t » 1- a * t .rt4-» j"i.^-v o/\ «*^».^"»* *m^fl /iV\ it I 1
1U CO B Ul^lV^llJ^) CZ1C CvCB E <J11 LL*1 111 J, TT J UJLII^^ 317 1 CHQII l^J9 J11U1X
17 treat the pleading as if there had been « proper
18 designation.
19 -fd-)- Averments in ft pleading te which a responsive
20 pleading is required, other than those as te the amount ef
21 damage, are admitted when Ret denied k» the responsive
22 pleading. Averments in- ft pleading te which ne
23 responsive pleading is required er permitted shall be
24 taken as denied er avoided.
25 -(ef -(ty Each averment ef ft pleading shall be simple,
26 concise, ftnd direct. Ne technical ferms ef pleadings er
27 motions are required.
28 •(&)• A party may set forth twe er more statements ef a
29 claim er defense alternately er hypothctically, cither i»
30 ene count er defense er in separate counts er defenses.
31 When twe er mere statements are made m the
32 alternative and ene ef them if made independently
33 would be sufficient, the pleading is net made insufficient
34 by the insufficiency ef ene er more ef the alternative
35 statements. A party may alse state as many separate
36 claims er defenses as he has regardless ef consistency artd
37 whether based en legal er equitable grounds.- Att
38 statements shall be made subject te the obligations set
39 ferth in Section 1808.4.
40 4fy AH pleadings shall be se construed as te de
97
AB3704 — 26 —
1 substantial justice.
2 1808.2. -(a)- It is rtet necessary te aver the capacity ef
3 ft party te s«e er be sued er the authority1 ef ft party te s«e
4 ef fee sued m ft representative capacity er the legal
5 existence ef ftft organized association ef persons that is
6 made a party, except te the extent required te show the
7 jurisdiction ef the court. When ft party desires te raise ft»
8 issue fts te the legal existence ef ftrty party er the capacity
9 ef ftfty party te sue er he sued er the authority ef a party
10 te sue er he sued «* ft representative capacity, he shall ee
11 se by specific negative averment, which shall include
12 such supporting particulars as ftre peculiarly within the
13 pleader's knowledge.
14 -(b)- fe ftH averments ef fraud er mistake, the
15 circumstances constituting fraud er mistake shall be
16 stated with particularity'. Malice, intent, knowledge, ftftd
17 other condition ef mind ef ft person may be averred
18 generally.
19 -(e)- fe pleading the performance er occurrence ef
20 conditions precedent, it is sufficient te aver generally that
21 all conditions precedent have been performed er have
22 occurred. A denial ef performance er occurrence shaft be
23 made specifically and with particularity.
24 -(4)- Ift pleading aft official document ef official aet i^ is
25 sufficient te aver that the document was issued er the aet
26 done ift compliance with ktwr
27 -(e)- in pleading a judgment er decision ef a domestic
28 er foreign eeftrt; judicial er quasi/judicial tribunal, er ef a
29 board er officer, it is sufficient te aver the judgment er
30 decision without setting forth matter showing
31 jurisdiction te render it?
32 -(f)- Fer the purpose ef testing the sufficiency ef a
33 pleading, averments ef time aftd ptetee are material artd
34 shaft be considered hke aft ether averments ef material
35 matter.
36 -(g)- When items ef special damage are claimed, they
37 shaft be specifically stated.
38 1808.3. -(a)- Every pleading and metier* shaft eefttftift ft
39 caption settft^ferth the ftatfteef the eeftrt; the tft^eef the
40 action, the file number, and a designation as i»
98
— 27 — AB3704
1 subdivision -(a)- ef Section 1808. fe the complaint the title
2 ef the action shall include the nomos ef aH the parties, btrt
3 » other pleadings tt is sufficient te state the name ef the
4 first party eft each side with an appropriate indication ef
5 ether parties.
6 -(h)- Aft averments ef claim er defense shall he made tft
7 numbered paragraphs, the contents ef each ef which shall
8 he limited as far as practicable te a statement ef a single
9 set ef circumstances; and ft paragraph may he referred te
10 by number m aH succeeding pleadings. Each claim
11 founded upon ft separate transaction er occurrence and
12 each defense other than denials shall be stated h* ft
13 separate count er defense whenever ft separation
14 facilitates the clear presentation ef the matters set forth.
15 -(e)- Statements m s pleading may be adopted by
16 reference ift ft different part ef the same pleading er i»
17 another pleading er ift ftfty motion. A copy ef ftfty written
18 instrument which is ftft exhibit te ft pleading is ft part
19 thereof fer aH purposes.
20 1828.4. Every pleading ef a party represented by ft»
21 attorney shall be signed by ftt least erte attorney ef record
22 ift his individual name, whose address shall be stated. A
23 party whe is net represented by ftft attorney shall sigft his
24 pleading ftftd state his address. Pleadings shall be verified
25 ift the manner set forth ift Section 446r The signature ef
26 ft» attorney constitutes ft certificate by hkft that he has
27 read the pleading; that te the best ef his knowledge,
28 information, and belief there is good ground te support
29 it; and that i^ is aet interposed far delay. If a pleading is
30 »et signed er is signed with intent te defeat the purpose
31 ef this section, ik may be stricken as sham aftd false aftd
32 the action may proceed as though the pleading had ftet
sj\j Dww«] jCTTTjcrr x ui tt vv zxxxxn v rvZunun tTT tin 3 z uil czn nrcunrcy
34 flaay be subjected te appropriate disciplinary action.
35 Similar action may be taken if scandalous er indecent
36 matter is inserted.
37 1808.5. -(a)- A defendant shall serve his answer within
38 SO days after the service ef the summons and complaint
39 upon him, except when a different time is prescribed ift
40 aft erder ef the court. A party served with a pleading
99
AB3704 — 28 —
1 otating a cross/claim against him- ahall serve an answer
2 thereto within 89 days aftor the service upon him. :Bhe
3 plaintiff shall serve his reply to a counterclaim t» the
4 answer within 89 days after service of the answer or? tf a
5 reply is ordered fey the court, within 89 days after service
6 ef the order, unless the order otherwise directs. :Fhe
7 service ef a motion permitted under this title alters these
8 periods to time as follows, unless a different time is fixed
9 fey order of the court: -ft)- if the court denies the motion
10 or postpones its disposition until the trial or the merits,
11 the responsive pleading shall fee served within -19 days
12 after notice of the court's action; •(£■)- if the court grants
' 13 a motion for a more definite statement the responsive
14 pleading shall fee served within ±9 days after the service
15 of the more definite statement.
16 -(fe)- Every defense, in law or faet? to a claim for relief
17 m any pleading, whether a claim, counterclaim,
18 cross/claim, or third/party claim, shall fee asserted in the
19 responsive pleading thereto if one is required. No
20 defense or objection is waived fey being joined with one
21 or more other defenses or objections in a responsive
22 pleading, if a pleading sets forth a claim for relief to
23 which the adverse party is not required to servo a
24 responsive pleading, he may assert et^ the trial etnf
25 defense in law or faet to that ekim for refeefr
26 1808.6. -(a)- A pleading shaU state as a counterclaim
27 any elatm whieh at the time of serving the pleading the
28 pleader has against etfiy opposing party? if it arises ottt of
29 the transaction or occurrence that is the subject matter
30 of the opposing party's claim and does not require for its
31 adjudication the presence ef third parties of whom the
32 court cannot acquire jurisdiction. Br»t the pleader need
33 not state the claim if -ft)- at the time the action was
34 commenced the claim was the subject of another
35 pending aetien? or -(&)- the opposing party brought sttit
36 tepen his etedm fey attachment or other process fey whieh
37 the eourt did not acquire jurisdiction to render a personal
38 judgment on that ekim? &Ft4 the pleader is not stating &fty
39 counterclaim under this section.
40 -(fe)- A pleading may state as a counterclaim etny claim
100
— 29 — AB 3704
1 against a» opposing party net arising etrt ef the
2 transaction or occurrence that 4s the subject matter ef the
3 opposing party's claim.
\4 -(e)- A counterclaim may ef may net diminish er defeat
5 the recovery sought by the opposing party? tt may claim
6 relief exceeding m amount er different m htn4 from that
7 sought i» the pleading ef the' opposing party.
8 -(d)- A ekam whieh either matured er was acquired ey
9 the pleader after serving his pleading may, with the
10 permission ef the court, he presented as a counterclaim
11 ey supplemental pleading.
12 -(e> When a pleader fails te set «p a counterclaim
13 through oversight, inadvertence, er excusable neglect, er
14 when jttstiee requires, he may ey leave ef court set vtp the
15 counterclaim ey amendment.
16 -(f> A pleading may state as a cross/claim any claim ey
17 ene party against a coparty arising et±t ef the transaction
18 er occurrence that is the subject matter cither ef the
19 original action er ef a counterclaim therein er relating te
20 any property that is the subject matter ef the original
21 action. Such cross/claim may include a claim that the
22 party against whem it is asserted is er may be liable te the
23 cross/claimant for aH er part ef a claim asserted in the
24 action against the crocs/claimant.
25 1808.7. A party may amend his pleading once as a
26 matter efee^rse at any time before a responsive pleading
27 is served er? if the pleading is ene te whieh ne responsive
28 pleading is permitted and the aetien has net been pkeed
29 epen the trial calendar, he may se amend it at any time
30 within 80 days after it is served? Otherwise a party may
31 amend his pleading emy with permission ef the eettrt er
32 by written consent ef the adverse party; asa4 permission
33 shall he freely given when justice se requires. A party
34 shall plead m response te an amended pleading within
35 the time remaining for response te the original pleading
36 er within -10 days after serviee ef the amended pleading,
37 whichever period may he the longer, unless the court
38 otherwise orders.
39 1808.8. Extensions ef time are permissible upon
40 agreement ef the parties without eeert approval tmtil the
101
AB3704 — 30 —
1 lapse ef three years after which the action may be
2 dismissed en the court's ewf^motion.
3
4 CiiArTEn Sr Pretrial an© Motion Practice
5
6 1829. Ne discovery shall he permitted ift ft«y action
7 governed by the proccduroq m this title.
8 1820.1. -(e)- Each party shell file with the court a
9 statement ef witnesses, physical evidence, and theories
10 within 45 days after the date the ease is at issue.
11 -(b)- ¥he statement shall include the names and
12 addresses ef witnesses the party intends te eaUr a
13 description ef the physical and documentary evidence
14 the party intends te produce with the copies ef the
15 . documents, etad the theories the party intends te rely
16 upon et^ trial. The statement shall else include
17 identification ef witnesses and physical end documentary
18 evidence which the party may use et^ trial upon the
19 happenings ef a contingency with a statement ef the
20 contingency, except that a party is net required te
21 identify witnesses, physical evidence, er documents
22 which he wnl ese only fer impeachment.
23 1820.2.- The eenrt shall held statements filed with it
24 under seal until it has received the statements ef aU
25 parties te the action eg the time for tiling statements has
26 expired. The court then shall contemporaneously
27 transmit copies ef the statements te the adverse parties.
28 1820.3. At trial a party may eeH as witnesses enly those
29 persons disclosed by him, introduce enly physical
30 evidence and documents identified m the statement, and
31 rely enly upon his disclosed legal theories, except fey any
32 ef the causes specified m Section 657r if relief from a
33 statement is granted, the adverse party shall be entitled
34 te a continuance te meet the new evidence er theory.
35 Production ef evidence (er impeachment is fie^ limited.
36 1820.L in the event a party lists witnesses, physical
37 evidence, er documents m his statement and docs net nse
38 the testimony at trial? the court shall, if the witnesses,
39 physical evidence, ef documents are stated without
40 contingency er if the contingency was stated and the
102
— 31 — AB 3704
1 contingency occurred, award te the advcroc party er
2 parties their legal et&4 other expense required te
3 investigate &ftd prepare to meet the evidence listed, bt>t
4 net used.
5 18Q9.5. Pretrial confcrcnccg are net required,
6 however, counsel should communicate personally or by
7 telephone m art effort te narrow the issues prior to trial
8 or te resolve the disputes.
9 18Q9.6. Ne demurrer er pretrial motion shall he used
10 er permitted «* any action governed hy the procedures
11 m this title except as follows:
12 -(a)- One motion may he made hy the defendant te
13 dismiss the action on- the ground ef a jurisdictional defect
14 er en the ground that the complaint docs net give notice
15 ef a claim upon which relief ear* he granted.
16 -(b)- Motions may he made for a continuance ef the
17 action for good cause. - -
18 -(e)- A motion m&y he made te withdraw the action
19 from the controls ef the stipulated procedure under this
20 title fer good cause.
21 - -(e^- One motion may he made hy eaeh party fer
22 summary judgment er partial summary judgment.
23 ~
24 Chapter 3r Trial
25
26 1830. The eeurt shell give an action which is governed
27 ey the procedure in this title priority ever the other eivil
28 aetiens whieh are net given priority pursuant te kwr tf
29 possible, the date fer trial shall he set within 80 days from
30 the date the eourt distributes the statement ef witnesses,
31 physical evidence, an4 theories in accordance with
32 Section 1830.2.
33 1830.1. issues ef an aetion governed hy the procedure
34 m this title shall he tried hy the eeurt and not hy a jury?
35 1830.Q. An opening statement te the court hy counsel
36 for the parties shall he permitted m the manner &f*4 for
37 the duration determined m the discretion of the court.
38 1830,3. Trial briefs shall he permitted, h«t are not
39 required.
40 1830.4. The eeunsel for tke parties et&4 the trial judge
103
AB3704 — 32 —
1 r»ay interrogate the parties and witnesses. Narrative
2 testimony shall fee permitted.
3 1830.5. 3%e trial judge shall have the digcrction te
4 determine the order ift which the evidence is permitted
5 aftd the trial is conducted.
6 1830.6. Written submissions ef direct testimony shall
7 fee permitted tf the cqurt determines that such
8 submissions wiH result ift a saving ef time fer the court
9 arte! counsel.
10 1830.7. Upon agreement ef the parties aftd with
11 consent ef the court, proceedings under this title may fee
12 recorded fey video tape, electronic recording, er court
13 reporters.
14 1830.8. Ne privileged information shall fee admissible,1
15 except as provided m Division 8 (commencing with
16 Section 990> ef the Evidence Code. AH other evidence
17 relevant te the aetieft shall fee admissible. :Fhe trial jftdge
18 shall determine the weight te fee accorded afty admissible
19 evidence.
20 1830.0. ¥he trial judge, ift his discretion, f»ay permit
21 a pleading te fee amended te conform te the proof.
22 1830.10. Closing arguments fey counsel shall fee
23 permitted ift the manner aftd fer the duration
24 determined ift the discretion ef the court.
25 , 1830.11. Fmdiftgf.effaetef conclusions efkw shaft net
26 fee required er made ift any action tried pursuant te this
27 titler Upon request ef any party te the action, the court
28 shall iss«e a brief explanation ef its decision cither eraHy
29 er ift writing.
30 1830.12. A«y posttrial motion which may fee made m
31 the particular court pursuant te law may fee made ift any
32 action tried pursuant te this title.
33 1830.13. 3%e effeet ef a judgment er fiftal order m any
34 action tried pursuant te tfee provisions ef this title; ift
35 respect te the matter er matters directly adjudged, is
36 conclusive between the parties aftd their successors ift
37 interest, fe afty succeeding action between the same
38 parties eft a different eattse ef action, sueh judgment shall
39 «et operate as a« estoppel er conclusive adjudication as
40 te any issue ift such succeeding action.
104
— 33 — AB 3704
1 1830. H.- A«y party sheh have the right te appeal e»y
2 judgment er fiftel ereer pertaining to eft aetiee governed
3 ey this title consistent with the lew governing seeh
4 appeals.
5
6 TITLE 4r ALTERNATIVE STIPULATED
7 PROCEDURE^FORMAT G
8 ■-■'■ . ■;■ '' .
9 . CiiAPTEn t Pleadings
10
11 1831. -(e)- 1ft eay action which is governed ey the
X^ procctiurcju unuur txtn line, uiuru man tw? tt ccTRnnuxxc ana
13 eft answer; ft reply to ft counterclaim denominated as
14 s«eht ftftd ftft answer te ft cross/claim, if the answer
15 contains ft cross/claim. No other pleading shah he
16 allowed, except that the court may order ft reply te ftft
17 answer.
18 -(h)- Aft application te the eeert for ftft order shah he ey
19 motion which, unless made during ft hearing er trial, shall
20 he made m writing, shell state with particularity' the
21 grounds therefor, and shall set forth the relief er order
22 sought. The requirement ef ft writing is fulfilled if the
23 iftetieft is stated ift a written ftetiee ef the hearing ef the
24 motion.
25 1831.1. -(a)- A pleading which sets forth a claim for
26 relief, whether e» original claim, counterclaim, er
27 cross/claim, shah contain a short end plain statement ef
28 the eteifft showing that the pleader is entitled te relief?
29 ftftd ft demand fer judgment fer the rehef te whieh he
30 deems himself entitled. Relief ift the alternative er ef
31 several different types f»ey he demanded.
32 -(h)- A party shell state ift shert ead plain terms his
33 defenses te eeeh ekifft asserted eftd shell edftftt er deny
34 the averments epeft whieh the adverse party rehear If he
35 is without knowledge er information sufficient te form- a
36 eehef as te the trftthef aft averment, he shah se state aft4
37 this shah have the effect ef a denial. Denials shah fairly
38 meet the substance ef the averments denied. When a
39 pleader intends m geed faith te deny eftly a part er a
40 qualification ef ftft averment, he shah speeify se ffteeh ef
105
AB3704 — 34 —
1 it as is twe and material et&d shall deny only the
2 remainder. Unless the pleader intends in good faith te
3 controvert an the averments ef the preceding pleading,
4 he may make his denials as specific denials ef designated
5 averments er paragraphs, eg he may generally deny an
6 the averments except such designated averments ef
7 paragraphs as he expressly admits; feat; when he docs se
8 intend te controvert an its averments, including
9 averments ef the grounds upon which the court's
10 jurisdiction depends, he may ee se fey general denial
11 subject te the obligation set forth in Section 1831.4.
12 -(e)- fe pleading te a preceding pleading, a party shall
13 set forth affirmatively accord and satisfaction, arbitration
14 and award, assumption ef risk; discharge m bankruptcy,
15 duress, estoppel, failure ef consideration, fraud, illegality,
16 injury fey fellow servant, laches, license, payment, release,
17 res judicata, statute ef frauds, statute ef limitations,
18 waiver, a&d etay other matter constituting an avoidance
19 er affirmative defense. When a party has mistakenly
20 designated a defense as a counterclaim ef a counterclaim
O | *±n j ^4 *i fcjft *^ a ■■"* fc fa ^*- ^^« * *»^ ^x.»^ t- /-\ »nr%-, c * L ^^^nfa^^^^L ^/"^ Br/**WT \ t y c^ f\ rinn 1 1
^jX tnj tX UL1U11JC, RIC CvTtXTT XJIX CCI 111J, TTJUJLH_l^ 3w X ULJU1K l^Jj JI1UX1
22 treat the pleading as if there had been a proper
23 designation.
24 -(d)- Averments m a pleading te which a responsive
25 pleading is required, other than those as te the amount ef
26 damage, are admitted when net denied m the responsive
27 pleading. Averments m a pleading te which ne
28 responsive pleading is required er permitted shall fee
29 taken as denied er avoided.
30 -(e)- m- Each averment ef a pleading shan fee simple,
31 concise, end direct. Ne technical forms ef pleadings er
32 motions are required.
33 -(3)- A party may set forth twe ef more statements ef a
34 claim ef defense alternately er hypothctically, cither m
35 ene count er defense er m separate counts er defenses.
36 When twe er more statements are made in the
37 alternative and ene ef them if made independently
38 would fee sufficient, the pleading is net made insufficient
39 fey the insufficiency ef ene er more ef the alternative
40 statements. A party may alse state as many separate
106
— 35— AB3704
1 claims er defenses as he has rogar dlcss ef consistency end
2 whether baocd e» legal er equitable grounds. All
3 statements shall be made subject te the obligations set
4 forth m Section 1831.4.
5 -(f)- AH pleadings shall be se construed as to eb
6 substantial justice.
7 1831.2. -(a)- ft is net necessary te aver the capacity ef
8 a party te see er be sued eg the authority ef a party te see
9 w be sued t» a representative capacity er the legal
10 existence ef an organized association ef persons that is
11 made a party, except te the extent required te show the
12 jurisdiction ef the court. When a party desires te raise art
13 issue as te the legal existence ef any party er the capacity
14 ef €ttty party te see er be sued er the authority ef a party
15 te sue er be sued m a representative capacity, he shall de
16 se by specific negative averment, which shall include
17 such supporting particulars as are peculiarly within the
18 pleader's knowledge.
19 -(b)- fe aH averments ef fraud er mistake, the
20 circumstances constituting freed er mistake shall be
21 stated with particularity. Malice, intent, knowledge, and
22 other condition ef mind ef a person may be averred
23 generally.
24 -(e)- fe pleading the performance er occurrence ef
25 conditions precedent, it is sufficient te aver generally that
26 aU conditions precedent have been performed er have
27 occurred. A denial ef performance er occurrence shell be
28 made specifically and with particularity.
29 -(d)- in pleading an official document er official aet *t &
30 sufficient te ever that the document was issued er the aet
31 done m compliance with lew? .
32 -(e)- Je pleading a judgment er decision ef a domestic
33 er foreign court, judicial er quasi/judicial tribunal, er ef a
34 board er officer, i^ is sufficient te aver the judgment er
35 decision without setting fertk matter showing
36 jurisdiction te render ttr
37 -(f)- Fer the purpose ef testing the sufficiency ef a
38 pleading, averments ef time etfid place are material and
39 sheH be considered hke aU other averments ef material
40 matter.
107
AB3704 — 36 —
1 -(g)- When itomg ef special damage are elaimed, they
2 shall fee specifically stated.
3 1831.3. •(»)• Every pleading and motion shall contain
4 ft caption setting forth the name ef the court, the title ef
5 the action, the file number, and ft designation as in
6 subdivision -(ftf ef Section 1831. Ift the complaint the title
. 7 ef the action shall include the names ef an the parties, bttt
8 m other pleadings it is sufficient te state the name ef the
9 first party eft each side with ftft appropriate indication ef
10 ether parties.
11 -ffe)- AH averments ef claim er defense shall he made ift
12 numbered paragraphs, the contents ef each ef which shall
13 be limited fts far as practicable te ft statement ef ft single
14 9et ef circumstances; ftftd ft paragraph mey be referred te
15 fey number ift an succeeding pleadings. Each claim
16 founded upon ft separate transaction er occurrence ftftd
17 each defense other than denials shall fee stated in ft
18 separate count er defense whenever ft separation
19 facilitates the clear presentation ef the matters set forth.
20 -(ef Statements in ft pleading mey fee adopted fey
21 reference in ft different pftrt ef the same pleading er ift
22 another pleading er in ftfty motion. A eepy ef any written
23 instrument which is ft» exhibit te ft pleading is ft pftrt
24 thereof fer an purposes.
25 1831.1 Every pleading ef ft party represented fey ftft
26 attorney shall fee signed fey at least eae attorney ef record
27 ift his individual name; whese address shell fee stated. A
28 party whe is aet represented fey an attorney shall sigft his
29 pleading ann state his address. Pleadings shall fee verified
30 i» the manner set ferth in Section 446r The signature ef
31 ft» attorney constitutes ft certificate fey him- that he has
32 read the pleading; that te the feest ef his knowledge,
33 information, aftd feehef there is geed ground te support
34 it; ann that it is ftet interposed fer delay? If a pleading is
35 net signed er is sigfted w^ irrteftt te defeat the pttrpese
36 ef this section, it fnay fee stricken as sham end false and
37 the action may proceed as though the pleading had net
38 feeen served? Fer a wiHfcl violation ef this rtne an attorney
39 may fee subjected te appropriate disciplinary action.
40 Similar action may fee taken if scandalous er indecent
108
— 37— AB3704
1 matter is inserted. i
2 1831.5. •(»)■ A defendant shall serve his answer withm
3 80 days after the service of the summons eaa4 complaint
4 upon him? except when ft different time is prescribed m
5 an order of the court. A party served with a pleading
6 stating a cross/claim against him shall serve an answer
7 thereto within SO days after the serviee upon mm? The
8 plaintiff shall serve his reply to a counterclaim m the
9 answer withm 80 days after service of the answer or? if a
10 reply is ordered by the eeurt; within 80 days after scr vice
11 of the order, unless the order otherwise directs. The
12 service of a motion permitted wider this title alters these
13 periods to time as follows, unless a different time is fixed
14 by order of the eeurtt -ft> if the court denies the motion
15 or postpones its disposition until the trial o» the merits,
16 the responsive pleading shall be served within ±0 days
17 after notice of the court's action; -f8> if the court grants
18 a motion for a more definite statement the responsive
19 pleading shall be served withm ^0 days after the serviee
20 of the more definite statement.
21 -(b)- Every defense, m law or faetj to a claim for relief
22 m any pleading, whether a claim, counterclaim,
23 cross/claim, or third/party ekimr shall be assorted m the
24 responsive pleading thereto if one is required. No
25 defense or objection is waived by being joined with one
26 or more other defenses or objections m a responsive
.27 pleading, if a pleading sets forth a claim for relief to
28 which the adverse party is not required to servo a
29 responsive pleading, he may assert at the trial «svf
30 defense m law or faet to that elaim for reliefr
31 1831.6: i& A pleading shall state as a counterclaim
32 any claim which at the time of serving the pleading the
33 pleader has against any opposing party? if it arises out of
34 the transaction or occurrence that is the subjeet matter
35 of the opposing party's claim weA does not require for its
36 adjudication the presence of third parties of whom the
37 court cannot acquire jurisdiction. But the picador fteed
38 not state the ekim if ■&} at the time the action was
39 commenced the claim was the subject of another
40 pending action, or -(8)- the opposing party brought suit
109
AB3704 — 38 —
1 ttpen his eton fey attachment er ether procogg fey whieh
2 the eewt e^ Ret acquire jurisdiction te r cndor ft pergonal
3 judgment en that ekim? artd the pleader is «et stating any
4 counterclaim under this section.
5 -(fe)- A pleading may state as a counterclaim any elaim
6 against an opposing party, net arising e»t ef the
7 transaction er occurrence that is the subject matter ef the
8 opposing party^s elaim?
9 -(e)- A counterclaim may er may net diminish er defeat
10 the recovery sought fey the opposing party, U may claim
11 relief exceeding m amount er different m kmd frem that
12 sought m the pleading ef the opposing party.
13 -(d)- A ekkn which either matured er was acquired fey
14 the pleader after serving his pleading may, with the
15 permission ef the court, fee presented as a counterclaim
16 fey supplemental pleading.
17 -fef When a pleader fails te set «p a counterclaim
18 through oversight, inadvertence, er excusable neglect, er
19 when justice requires, he may fey leave ef eettrt set «p the
20 counterclaim fey amendment.
21 -ff)- A pleading may state as a cross/claim any eten fey
22 ene party against a coparty arising eat ef the transaction
23 er occurrence that is the subject matter cither ef the
24 original aetien er ef a counterclaim therein er relating te
25 any property' that is the subject matter ef the original
26 action. Such cross/claim may include a claim that the
27 party against whem it is asserted is er may fee liafele te the
28 cross/claimant fer aH er part ef a claim asserted m the
29 aetien against the cross/claimant.
30 1831.7. A party may amend his pleading once as a
31 matter ef course at any time before a responsive pleading
32 is served er; if the pleading is ene te whieh ne responsive
33 pleading is permitted ami the aetien has fiei been placed
34 tmen the trial calendar, he may se amend i^ at any time
35 within 89 days after it is served. Otherwise a party may
36 amend his pleading only with permission ef the court er
37 fey written consent ef the adverse party? and permission
38 shall fee freely given when justice se requires. A party
39 shall plead m response te an amended pleading within
40 the time remaining fer response te the original pleading
110
— 39— AB3704
1 er within ±Q days after service ef the amended pleading,
2 whichever period may fee the longer, unless the eewt
3 otherwise orders.
4 1831.8. Extensions ef time are permissible «pe»
5 agreement ef the parties without court approval until the
6 lapse ef three years after which the action may fee
7 dismissed en the court's ew» motion.
8
9 Chapter Sr PnETniAL an© Motion Puacttce
10
11 1832. Ne discovery shall fee permitted m any eetie»
12 governed fey the procedure » this title.
13 1832.1. Eaeh party shell file with the eeert a
14 statement ef the case, asset forth it* Section 1832.2, within
15 45 days frem the date the ease is a^ issue.
16 1832.2. Subject te the rules ef privileged information,
17 as set forth m Division 8 (commencing with Section 909)-
18 ef the Evidence Code, the statement ef the. ease shall
19 include each ef the following;
20 -$a)- A statement ef the facts.
21 -(fe)- A statement ef the party's legal contentions,
22 including relevant artd pertinent citations te ease law and
23 statutory lev*
24 -fe> A list ef aH known witnesses, favorable a»4
25 unfavorable, including addresses an4 telephone
26 numbers, if known.
27 -(el)- A summary ef the evidence te which each witness
28 may testify.
29 -(e)- A list and summary ef aU documents and physical
30 evidence relevant te the ease er eepies ef those
31 documents end physical evidence.
32 1832.3. A statement ef the ease shall constitute a»
33 admission, but shall fee deemed denied fey the adverse
34 parties.
35 1832.1 ¥he eeurt shall held statements ef the ease
36 filed with it under seal until it has received statements
37 frem aU the parties te the action er the time fer filing
38 statements has expired. ^Fhe eeurt then shaH
39 contemporaneously transmit copies ef the statements te
40 the adverse parties.
Ill
AB 3704 — 40 —
1 183Q.5. tf ft party deems that ft statement ef the ease
2 filed fey ft» adverse party is unclear, uncertain, ef
3 ambiguous, fee may, fey written motion, specifying the
4 deficiencies i» the statement, seek te have the party
5 which filed the statement ekwify the statement fey ft
6 supplement te fee served and filed within 80 days ef the
7 notice. U the adverse party docs net adequately respond
8 te the demand, the party serving the notice may, within
9 SO days after response is duo, make ft motion fef such
10 clarification.
11 183B.6. A statement ef the ease may fee supplemented
12 ef amended -(af fey stipulation ef the parties, ef -(fe)- fey
13 motion at the time ef trial upon ft showing ef good cause
14 fts specified m Section €e?7 ft showing ef Iftek ef prejudice
15 te adverse parties, ftftd ft showing that the substance ef
16 the supplement ef amendment was communicated te
17 adverse parties fey formal written notice at the earliest
18 possible time. 3rfee trial court may grant a continuance te
19 the adverse party where i^ permits a supplement ef
20 amendment te the statement ef the ease?
21 1832.7. At trial, only persons identified m the
22 statement ef the ease may fee called as witnesses fey the
23 party filing the statement, artel only physical evidence
24 ftne! documents described in the statement may fee
25 introduced, subject te the right ef ft party te amend ef
26 supplement ft statement at trial.
27 183Q.8. Pretrial conferences are net required,
28 however, counsel should communicate personally ef fey
29 telephone tn an effort te narrow the issues prior te trial
30 ef te resolve the dispute.
31 1830.9. Ne demurrer ef pretrial motion shall fee used
32 ef permitted m et&y action governed fey the procedures
33 m this title, except as follows:
34 -fa)- One motion may fee made fey the defendant te
35 dismiss the action en the ground ef a jurisdictional defect.
36 -(fe)- Motions may fee made for a continuance ef the
37 action fer good cause.
38 -(e)- Motion may fee made te withdraw the action from
39 the controls ef the stipulated procedure under this title
40 fer good cause.
112
— 41— AB3704
1 -(4)- 0«e motion flaay be mQdo by esiy party fer
2 judgment e» the ground that the pleadings, as
3 supplemented by the admiooion i» the statements ef the
4 ease entitle ouch party te ft judgment?
5 -(e)- One motion may be made by each part)' fer
6 summary judgment er fer partial summary judgment.
7 -(f)- One motion may be made by each party te have a»
8 adverse party's statement ef the ease clarified pursuant te
9 Section 183Q.5.
10
11 CiiArTEn 3r TniAL
12
13 1833. ;Fhe court shell give aft action which is governed
14 by the procedure ift this title priority over all the other
15 eivil actions which are «et given priority pursuant te law?
16 1833.1. Issues ef a» action governed by the procedure
17 m this title shall be tried by the court aftd net by a jury.
18 1833.& Aft opening statement te the court by counsel
19 for the parties shell be permitted i» the manner aftd fer
20 the duration determined m the discretion ef the court.
21 1833.3. Trial briefs shall be permitted, b»t are »et
22 required.
23 1833.*. The counsel fer the parties arte the trial jeege
24 may interrogate the parties a»d witnesses. Narrative
25 testimony shall be permitted.
26 1833.5. The trial judge shall have the discretion te
27 determine the ereer ift whieh the evidence is permitted
28 and the trial is conducted.
29 ^833r6r Written submissions ef direct testimony shall
30 be permitted if the court determines that s«eh
31 submissions wiH restftt m a saviftg ef time fer the court
32 aad counsel.
33 1833.7. Upon .agreement ef the parties a»d with
34 consent ef the eeertr proceedings eftder this title may be
35 recorded by video tape, electronic recording, er court
36 reporters.
.37 1833.8. Ne privileged information shall be admissible,
38 except as provided ift Division 8 (commencing with
39 Section 990)- ef the Evidence Code. All other evidence
40 relevant te the action shall be admissible. The trial judge
113
AB3704 — 42 —
1 shall deter mine the weight to be accorded &ny admissible
2 evidence.
3 1833.0. :fhe trial judge, m his discr ction, may permit
4 ft pleading to he amended to conform to the proof.
5 1833.10. Closing arguments by counsel flhall be
6 permitted m the manner a»4 for the duration
7 determined tn the discretion of the court.
8 1833.11. Findings of feet er conclusions ef law shall not
9 be required or made m easy action tried pursuant to this
10 title. Upon request of any party to the action, the court
11 shall issue ft brief explanation of its decision cither orally
12 or t» writing.
13 1833.12. Any posttrial motion which moy be made i»
14 the particular court pursuant to few mfty be made » any
15 action tried pursuant to this title.
16 1833.13. Irke effect of ft judgment or fiftftl order if* ftfty
17 ftetfeft tried pursuant to the provisions of this title, m
18 respect to the matter or matters directly adjudged, is
19 conclusive between the parties e»d their successors i»
20 interest. !» any succeeding action between the same
21 parties en ft different cause of action, such judgment shall
22 ftot operate as art estoppel or conclusive adjudication as
23 to any issue if* such succeeding action.
24 1833.14. Af*y party shall have the right to appeal arty
25 judgment or final order pertaining to a» action governed
26 by this title consistent with the few governing such
27 appeals.
114
[Reprinted by permission from The Christian Science Monitor, copyright 1976, The
Christian Science Publishing Society, all rights reserved, Apr. 14, 1976]
Cutting Access to the Courts
(By Mark G. Yudof >)
Every first year law student learns, or should learn, that abstract legal rights
are meaningless unless there are adequate remedies for the violation of those rights.
For example, if a person has a "right" to property, government must be willing to
protect the peaceful possession of that property, to compensate for trespass, and
to deter those who would take it away by force or guile.
This truism of the law has particular meaning for prized constitutional freedoms.
Many speak casually of the "right" to free speech or association, the "right" to
due process of law, or the "right" to freedom of the press. But these are simply
empty phrases unless courts act forcefully to protect the interests which they
embody.
This elementary lesson, unfortunately, has not been learned by the majority of
the United States Supreme Court. Increasingly, the Burger court, under a variety
of pretexts, has been limiting access to the federal courts for the redress of con-
stitutional rights and denying remedies even where constitutional violations are
apparent or even akcnowledged. These decisions do not rest on the need to define
the scope of particular rights. Interpretation of vague constitutional language is
an inevitable part of the judging process.
Rather litigants are informed that the court lacks jurisdiction over the case,
that local and state governments cannot be compelled to pay for thier wrongs,
that Supreme Court orders jeopardize sensitive federal -state relations, or that the
matter is better decided by state courts — many of which are unsympathetic to the
rights asserted. The result is a systematic undermining of constitutional principles.
And, by utilizing the technicalities of the law of federal courts, public and media
understanding of what is happening is diminished and attention diverted to the
seemingly more important substantive decisions.
Perhaps the best example of this new philosophy of closing the doors to the
federal courts is Rizzo v. Goode, a recent decision of the Supreme Court written by
Mr. Justice Rehnquist. In that case, the plaintiffs alleged and proved a number of
instances of police brutality toward minority group citizens on Philadelphia, and
yet the court, in a 5-3 decision, refused to respond.
It overruled a cautious lower court order calling for the police department itself
to set up procedures to deal with citizen complaints. In doing so, it did not deny
the existence of constitutional wrongs. Rather the high court wrapped itself in the
robes of federalism and invoked a litany of democratic phrases. The message:
federal courts should not interfere with the internal workings of government
agencies.
To be sure, federal judges, who are not directly accountable to the people, must
be sensitive to such concerns. But where violations of constitutional rights have
been demonstrated, they offer no justification for judicial inaction.
The great judicial conservatives of the past, Justices Frankfurter and Harlan,
countenanced no such philosophy. They fought for a less expansive view of con-
stitutional doctrines and for greater recognition of the limited institutional role of
federal courts. But theirs was not a philosophy of denying access to the federal
forum, not did they hesitate to grant redress where plaintiffs proved to their satis-
faction that established constitutional norms had been breached.
The time has come for the Congress to send a message to the Supreme Court.
Most of the access and remedy-denying decisions involve ingenious, if insensitive,
interpretations of federal statutes regulating the court's jurisdiction and creating
causes of actions to vindicate constitutional rights.
Congress must alter these laws to make clear a simple point: the federal courts
are obliged to open their doors to claims based upon federal constitutional pro-
visions and to grant relief where rights have been compromised. Perhaps, under
such circumstances, many of the justices will live up to their reputations as
"strict constructionists."
1 Mark G. Yudof is Professor of Law at the University of Texas at Austin.
115
April 7, 1976.
To: Participants in the "Pound Revisited" Conference.
From: Aryeh Neier, executive director, American Civil Liberties Union, Melvin
L. Wulf, legal director, American Civil Liberties Union, Rhoda H. Karpatkin,
executive director, Consumers Union, Arlie Schardt, executive director,
Environmental Defense Fund, Paul Friedman, managing attorney, Mental
Health Law Project, Lennox S. Hinds, director, National Conference of
Black Lawyers, Sidney M. Wolinsky, managing attorney, Public Advocates,
Alan Morrison, litigation director, Public Citizen, Oscar Garcia Rivera,
executive director, Puerto Rican Legal Defense and Education Fund,
Stephen Cillers, executive director, Society of American Law Teachers.
(Organizations listed for identification purposes only.)
You are meeting to honor the seventieth anniversary of Roscoe Pound's address
to the American Bar Association on the causes of popular dissatisfaction with the
administration of justice. We hope that the conference will include discussion of
the issues presented by a series of Supreme Court decisions during the past few
years which have radically reduced the ability of the lower federal courts to
exercise their responsibility under the Constitution to enforce the Bill of Rights.
Since the adoption of the Civil War amendments, the federal courts have been
the first resort of those who needed and sought the protection of the Constitution.
Particularly where the rights of racial minorities were concerned, the state courts
in the North as well as in the South refused to enforce the prohibitions against
racial discrimination embodied in the 13th, 14th and 15th amendments. The
Supreme Court itself betrayed the purpose of those amendments in 1896 in
Plessy v. Ferguson by construing the equal protection clause to include the racist
concept of separate but equal. That decision set back egalitarian principles by a
half century until Brown v. Board of Education in 1954.
More than a generation ago the federal courts began tentatively experimenting
with their role under the Supremacy Clause in non-racial constitutional areas.
To note but two major examples, in Hague v. Congress of Industrial Organizations
in 1939, the Supreme Court held that the federal courts had the power and duty
to provide citizens with effective protection under the First Amendment against
encroachment by state and municipal officers; and in Monroe v. Pape, in 1961,
the Court construed the Civil Rights Act of 1871 to require federal courts to
provide meaningful remedies for injuries inflicted by state and local police officers
in violation of constitutional standards.
These decisions and others were the foundation for expansive utilization during
recent decades of the federal courts as the primary guardians of the personal
rights guaranteed by the Bill of Rights. It was, in our opinion, the beginning of
the fulfillment of the promises held out by the Constitution to all of the people
of the United States.
During the past few years, however, that promise has been thwarted by the
Supreme Court in a series of decisions whose effect is to restrict substantially the
right to secure meaningful protection in the federal courts against the invasion of
constitutional rights by the states and their officers. If the trend continues —
indeed, if it is not reversed — we believe that the protection of constitutional rights
and liberties will be imperiled, and the people will be unable to defend themselves
against arbitrary and unconstitutional actions of state officials or to secure
effective relief against invalid state laws.
Hicks v. Miranda, 422 U.S. 332 (1975), is among the most significant of those
harmful decisions. Hicks concluded a series of cases involving the availabilty of
federal court review of state statutes and official actions said to be unconstitu-
tional. Though the power of federal court review was cut off entirely in Younger
v. Harris where a state prosecution is pending, even in face of a First Amendment
claim, Steffel v. Thompson salvaged some of the power of review, as long as the
plaintiff was able to show a credible threat of presecution so that he or she had
requisite standing. But Hicks armed the states with an automatic weapon which
allows termination of federal court power of review by the mere filing by the
state of a criminal action against the plaintiff in the federal action. ' The result is
that in those cases the federal constitutional issue is decided by the state courts
rather than by the federal courts. Though the Supreme Court can review the state
court decision, the prospects for plenary review are statically not very encour-
aging. Because of the historic lack of state court sympathy to federal constitutional
claims which exists in many states to this day, the federal courts must be available
for review of federal constitutional claims.
1 We are aware, of course, of the "proceedings of substance" limitation. It is a limitation
that is easily avoided.
116
Rizzo v. Goode, decided this term, galvanized our view that the Supreme Court
is embarked on a dangerous and destructive journey designed to dilute the power
of the federal judiciary to serve as guardian of federal constitutional rights.
Rizzo, in our opinion, improperly limited the discretionary authority federal
judges must have to fashion appropriate equitable relief after a constitutional
violation has been demonstrated, and sacrificed the power of the federal courts
to enforce civil rights and civil liberties on the altar of federalism. "Where, as
here," the Supreme Court said, "the exercise of authority by state officials is
attacked, federal courts must be constantly mindful of the special delicacy of the
adjustment to be preserved between federal equitable power and the state admin-
istration of its own law." As articulated, the court's concerns with federalism seem
to be expressed for the purpose of avoiding the merits of the case, and leaving
citizens to the mercy of the Philadelphia police and Philadelphia courts — neither
of which, as the record in Rizzo v. Goode abundantly demonstrates, shows any
interest in the Bill of Right's.
The most conspicuous feature of Justice Rehnquist's opinion in Rizzo is its
attempted distinction of Hague. In Hague, the opinion says, police misconduct
was grounded on "the adoption and enforcement of deliberate policies by the
defendants there (including the Mayor and the Chief of Police) of excluding and
removing the plaintiff's labor organizers and forbidding peaceful communication
of their views to the citizens of New Jersey." The opinion would have us believe
that this is a satisfactory intellectual basis upon which to rest a substantial
distinction, but it is not, for the failure of the Philadelphia Police Chief and Mayor
to act in face of the notorious misconduct of their police force, results in the
same denial of federally protected rights as were present in Hague.
It is precisely the Supreme Court's adjustments to the principles of federalism,
as reflected in Hicks and Rizzo,2 to which we object. There are now a majority of
Justices on the Court who are so committed to the "special delicacy" of state-
federal relations, that they have lost sight of the fact that one great adjustment
of the federal system was the adoption of the 13th, 14th, and 15th amendments.
Federal legislation adopted pursuant to those Amendments empowered the
federal government to protect the civil rights and liberties of the people, and the
judicial branch shares that power and attendant responsibility with the other
two branches. But this Supreme Court during the past few years has chosen to
follow a different path. It has abandoned its responsibility and left the state
courts as the principal resort for protection of civil rights and liberties, even
though history has demonstrated that federal forums are essential.
In other recent cases as well, the Supreme Court has made the federal courts
less accessible to the ordinary citizen. In Snyder v. Harris and Eisen v. Carlisle,
the Court construed the rules regulating class actions grudgingly and set up major
barriers to effective relief for small claimants. In Alyeska Pipeline v. Wilderness
Society, the Court's decision denied access to the courts to many citizens who
lack the resources to retain counsel to represent their interests.
We believe that the courts have a vital role in protecting the rights of citizens.
Legal doctrine should be developing in the direction of increasing citizen access
to the courts rather than limiting it. Reform of the judicial process should attempt
to diminish the handicap which poor litigants suffer in their efforts to invoke the
legal process to protect their rights. Liberalization of class action rules and awards
of attorneys fees to successful public interest litigants are important to these
objectives.
It is time for the Supreme Court to halt its retreat and to stand fast as a defender
of rights, as it did from 1954 to 1970. Effective judicial remedies must be available
to protect against deprivations of constitutional and statutory rights if our courts
are to be the "swift and certain agents of justice" envisioned by Roscoe Pound
in the address you are gathered to commemorate.
Remarks of Charles R. Halpern, Executive Director, Council for
Public Interest Law
In Dean Pound's speech enumerating the Causes of Popular Dissatisfaction
with the Administration of Justice, he observed that the "main reliance of our
common law system has been individual initiative." By way of examples, he
noted that suits brought by taxpayers were the "chief security for the efficiency
and honesty of public officers . . ." and that private suits were relied on to keep
2 Warth v. Seldin and Paul v. Davis are additional examples.
117
"public service companies to their duty in treating all alike at reasonable
price. . . ." In summary, he stated that "the individual is supposed at common
law to be able to look out for himself and to need no administrative protection."
Dean Pound concluded, however, that the "whole scheme of individual initiative
is breaking down" and being replaced by a "collectivist" desire to develop govern-
mental administrative mechanisms to safeguard the public interest.
In the decades since Dean Pound spoke, there have been striking changes in
the relative importance of "individual initiative," on the one hand, and adminis-
strative regulation, on the other, as devices to secure the public good. The rise of
administrative regulation, accelerated in the 1930's, was undoubtedly a reflection
of the "collectivist" sentiment which Dean Pound noted in 1906 — an effort to
develop new governmental institutions to replace "individual initiative" as a
system for controlling the behavior of great institutions.
I suggest that this reliance on administrative regulation is now waning and
that we have entered a new stage — a stage in which "individual initiative",
exercised through the legal process, has a crucial importance that has not been
adequately recognized within the legal system. In drawing a road map for legal
reform, "individual initiative" must be given broader scope. Few people still
share the "collectivist" enthusiasm for exclusive reliance on administrative regu-
lation. We must think in new ways about a hybrid system, involving both govern-
mental action and citizen initiative.
Without doubt, the landmark judicial recognition of the new role of "individual
initiative" was the decision by the Chief Justice, then a Judge on the Court of
Appeals for the District of Columbia Circuit, in the celebrated Church of Christ.
case.1 That case involved an effort by black citizens in Mississippi to demand an
end to racist broadcasting by a federally-licensed television station. The Federal
Communications Commission took the position that the issue fell within its
regulatory responsibility and that there was no need for citizen involvement.
In rejecting the FCC's view, Judge Burger recognized the crucial role of individual
initiative. Stating that "consumers are generally among the best vindicators of
the public interest," he held that the agency could not properly exclude represent-
atives of legitimate listener interests from its proceedings.
The intervening years have seen a growing number of citizen groups taking
initiative to demand compliance with law from large institutions — both govern-
mental and private. The reasons why citizen initiative at this time has come to
be so significant are complex. At bottom, there is an indisputable lack of con-
fidence in the performance of large institutions, including administrative agencies.
Recent revelations of crimes in high places, in the Justice Department as well as
corporate board rooms, have, undoubtedly, fueled these doubts. Even prior to
these disclosures, though, there was a growing sense that the great institutions
of society were out of control. This has led to citizen efforts to reassert influence
over these institutions. Citizens have taken action to participate in the decision-
making processes that affect their lives. They have pressed governmental agencies
to act in the public interest and enforce the law; where necessary, they have
sought judicial remedies for institutional lawlessness.
An example will illustrate the point. In the 1960's, scientific information indi-
cated that DDT, a pesticide that persists in the environment for a long period
after its application, was being over-used in American agriculture. The Depart-
ment of Agriculture, which had regulatory responsibility, was licensing this
pesticide for various uses without taking into account the data indicating damage
to the environment and hazards to human health — despite statutory requirements
that it do so. The concerned citizens who tried to move the Department of Agri-
culture to act were unsuccessful.2 It was only after they turned to the courts and
obtained an order requiring the agency to act in compliance with the law that the
administrative proceedings which led to the banning of DDT for most purposes
began. We need not consider here whether the Department's inaction was due to
bureaucratic inertia, excessive influence by the industry which was supposed to
be regulated, a lack of adequate concern for environmental considerations, or
other factors. The fact remains that individual initiative, through the court
system, was the key to obtaining effective action and compliance with the con-
gressional mandate.
The challenge to the legal system in. this collectivist age is to facilitate and encourage
individual initiative through the courts to assure that constitutional and statutory
rights are respected, that government agencies do their job, and that corporations
1 Office of Communication of United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir.
1966).
3 See Environmental Defense Fund v. Hardin, 428 F.2d 1093 (D.C. Cir. 1970).
118
function within the law. But at the present time citizen access to the legal system
is too often blocked by the high cost of legal representation, by restrictive legal
doctrines and by the disadvantages, inherent in the legal process, faced by ordi-
nary citizens when they litigate against large, financially strong adversaries. Legal
institutions and legal doctrines must be modified in order to address these prob-
lems. At a time of great public disillusionment with the performance of public
and private institutions, the availability of the courts as a channel for redress is
critically important.
1 recognize that this places me at odds with a significant number of prior
speakers, who have been exploring ways to reduce the caseload of judges, to find
alternatives to the courts, and to reverse the "explosive" growth of class actions.
However, as I understand our charge today, we are to discuss ways in which the
interests of iustice can be better served. In my view the interests of justice can be
best served by assuring that the courts are open to citizens exercising "individual
initiative" to demand compliance with the law, and that the courts provide a
setting in which the financial strength of litigants is not dispositive.
Obviously, there are certain matters which can and should be resolved in a
forum that is cheaper, quicker, and more informal than the courts. But the identi-
fication of such matters should not blind us to the importance of opening the
courts to a range of important cases which are too frequently kept out of the courts
by restrictive legal doctrines and the high costs of litigation.
As you all know, several recent Supreme Court decisions have gone in the
direction of limiting citizen access to the courts and making citizen suits even
more financially difficult. For example, recent decisions on standing have sharply
restricted access to the courts. Barriers to citizen action have been further raised
in the Court's interpretation of Rule 23 on class actions. The Court's class action
decisions have severely diminished the utility of that mechanism, which was
designed to make redress of small individual grievances economically feasible. And,
in holding in the Alyeska Pipeline case that federal courts lack the power to award
attorneys' fees to citizens suing as "private attorneys general," the Court has
created a financial roadblock for citizen action.
I submit that the trend reflected in these decisions— a trend toward making
legal recourse less accessible to ordinary citizens — is likely to increase popular
dissatisfaction with the administration of justice.
I think it is essential to reverse that trend.
I urge consideration of the following concrete suggestions to make the courts
a more potent instrument for justice and a more hospitable forum for individual
initiatives in the public interest:
REALLOCATING THE COSTS OF LITIGATION
The largest barrier to citizens who want to use the courts to vindicate rights
and enforce legal and constitutional duties is the high cost of litigation, particu-
larly the high cost of attorneys' fees. There are few citizens or groups who can
afford the enormous costs of carrying major litigation. In the past few years
there have been significant programs established to help deal with this problem.
The Legal Services Corporation, which underwrites legal services for the poor,
is one example. Foundation-funded public interest law firms, which have pro-
tected the rights of environmentalists, consumers, racial minorities, and ethers,
are another. In assessing the impact of there new participants in the adversary
process, Judge Harold Leventhal of the Court of Appeals for the D.C. Circuit
stated recently:
Public interest representatives have identified issues and caused agencies
and courts to look squarely at problems that would otherwise have been swept
aside and passed unnoticed. They have made complaints, adduced and marshalled
evidence, offered different insights and viewpoints, and presented scientific,
historical and legal research. They have, in my view, been of significant service
to the entire decisional process.3
But funding for these public interest law programs has, to date, been grossly
inadequate to meet the need, and even this funding is of uncertain duration.
The foundations who have most actively supported public interest law have
indicated that their support cannot be expected to continue indefinitely. The
legal system itself must develop internal mechanisms to underwrite the cost of
citizen litigation. An important device toward this end, which has a significant
common law history and specific statutory endorsements, is the award of attorneys'
fees to private litigants whose lawsuits confer substantial public benefits. The
3 Statement of Judge Harold Leventhal at Hearings on S. 2715 before the Senate Judi-
ciary Subcommittee on Administrative Practice and Procedure, February 6, 1976.
119
"private attorney general" is the heir to the individual suing to enforce the law
about whom Dean Pound spoke. The courts and the legislatures should be
extending the availability of fee awards in cases involving a public benefit — not
limiting it — so that we move toward a system in which the costs of litigation
are reallocated to enable and encourage citizens to undertake legal action to
enforce constitutional and statutory rights. This fee-award concept now has its
counterpart at the administrative level, in the Federal Trade Commission's
program to reimburse the costs of citizen participation in rulemaking proceedings,
an approach that Congress is now considering expanding to other agencies and
to adjudicatory proceedings as well.
MAKING IT EASIER TO AGGREGATE SMALL CLAIMS FOR LITIGATION PURPOSES
Rule 23 of the Federal Rules of Civil Procedure represents a pioneering effort
to provide a judicial forum for aggrieved citizens whose individual claims against
a single defendant are too small to justify the expense of litigation. Suppose, for
example, that 10,000 defectively designed refrigerators are manufactured and
sold. No individual purchaser has a sufficient economic interest to file suit against
the manufacturer. The class action was designed to permit an effective judicial
remedy for cases of that nature.
The purpose of the class action was described by Justice Douglas:
"I think in our society that is growing in complexity there are bound to be
innumerable people in common disasters, calamities, or ventures who would go
begging for justice without the class action but who could with all regard to due
process be protected by it. . . ."
The class action is one of the few legal remedies the small claimant has against
those who command the status quo. I would strengthen his hand with the view
of creating a system of law that dispenses justice to the lowly as well as to those
liberally endowed with power and wealth.4
Recent Supreme Court decisions have made class actions very difficult to
bring, and some recommendations offered at this conference would further de-
crease the utility of the class action. This would undoubtedly be a comforting
development for prospective defendants, but it would be a serious blow to citi-
zens and a set-back to those who want the courts to be an open and accessible
forum for resolution of grievances.
In a recent speech, Justice Stanley Mosk of the California Supreme Court
suggested that citizen groups should "join hands ... in a mutual effort to save
the class action." Further he suggested:
"If the courts are too far committed to the ultimate demise of such proceedings,
then appropriate action through Congress and state legislatures may be indicated."
This observation is a wholesome reminder that access to the courts is a matter
of concern to all the people, and not ultimately a matter to be resolved internally
within the legal profession.
REDUCING THE DISPARITY BETWEEN RICH AND POOR LITIGANTS
In making the courts a more just forum for citizen litigation, we must also
keep in mind that access to the courts is only the beginning. The courts must
also make an active effort to minimize the disparities in litigating capacities
between the rich and poor — by accommodating the diverse interests at stake in
complex litigation through liberal admission of amici curiae; by becoming in-
volved in the discovery process to prevent harrassment of litigants with scarce
resources; by appointing expert witnesses to equalize access to technical data;
and by experimenting with flexible mechanisms to assure that decrees are effec-
tively implemented.
CONCLUSION
I believe that individual initiative through the courts to assure that corpora-
tions, government agencies and other powerful institutions behave in compliance
with the law is critical and must be facilitated. This is not to say that every
dispute or citizen grievance should be brought to court, or that citizens should
look to the judiciary for relief of all their problems, including those that are
more properly placed before the political branches of the government.
But constitutional rights cannot be left to the vagaries of the political process;
and legislative mandates cannot be left to administrative agencies to bend as
* Eisen v. Carlisle and Jacquelin, (1974) 4)17 U.S. 156 185-86 (Douglas, J., dissenting)
[footnote omitted].
120
they see fit, free of the check of judicial review. There is an indispensable judicial
role in both classes of cases. Recent progress of many citizens — racial minorities,
the mentally impaired, voters aggrieved by legislative malapportionment, en-
vironmental protection groups, consumers — would not have been possible but
for the availability of judicial remedies. These remedies should be expanded and
citizen access improved.
American Judicature Society,
Chicago, III., June 15, 1976.
Hon. John V. Tunney,
Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, U.S.
Senate, Washington, D.C.
My Dear Senator Tunney: In response to your request that the Society
might wish to file a statement with the Subcommittee on Constitutional Rights
of the Senate Judiciary Committee, on behalf of the Society I have the privilege
of transmitting to you the attached.
Sincerely yours,
Arlin M. Adams.
Statement of the American Judicature Society Prepared for Submission
to the Subcommittee on Constitutional Rights of the Judicary
Committee of the U.S. Senate
The American Judicature Society wishes to take this opportunity to endorse
the work of the Subcommittee on Constitutional Rights as it seeks to precipitate
concern and action regarding causes of popular dissatisfaction with the administra-
tion of justice. As the Subcommittee may know, the Society has been associated,
since its founding in 1913, with this goal. Dean Roscoe Pound's historic 1906
address established the theme for these hearings, it effectively launched a court
reform effort which encompassed the founding of the American Judicature Society
and continues to the present date. Consequently, the Society has a unique aware-
ness of the weaknesses and strengths of our judicial systems, shaped by its many
years of addressing the issues raised by this Subcommittee.
Rather than attempting to attribute the causes of failure, perhaps the Society
can best serve the Subcommittee by suggesting some potential solutions and
remedies that it has espoused over the years for what ails our many judicial
systems, for there are a multitude of independent, interlocked and overlapping
court systems in our society.
What, then, are some of the broad approaches to improving the judicial system
for all of our citizens — those who find themselves enmeshed in the system as
well as those charged with the responsibility for administering justice?
JUDICIAL SELECTION AND TENURE
The popular election of judges, arising out of the "Jacksonian democracy"
period of our history, brought about substantial criticism at the close of the last
century regarding the quality of the judiciary. A search for something better,
led by the Society, resulted in a non-political plan generally known as the Merit
or Missouri Plan. It provides for the selection of judges by an appointing official
(usually the governor of the state) from a panel of names submitted by a nominat-
ing committee. Such committee is generally nonpartisan or bipartisan in nature,
and includes judges, lawyers and nonlawyers in its membership. Endorsed by
the American Bar Association in 1937, the Merit Plan today is being used with
respect to all or a portion of the judiciary in more than half of the states. Most
other states have it under consideration, and it appears destined ultimately to
replace the election of judges as a predominant method of judicial selection in this
country. In furtherance of this objective the Board of Directors of the American
Judicature Society has appointed a special committee to study feasibility of a
federal judicial nominating committee to make recommendations with regard to
federal judicial selections. Once accomplished, these plans will assure better
prospects for an impartial and independent judiciary.
JUDICIAL DISCIPLINE AND REMOVAL
By far the most extensive adoption of a single plan for court improvement has
been the replacement of the impeachment process for ridding our courts of
overage, disabled, or ineffective judges with specific commissions or bodies
charged with the responsibility for investigating charges against judges and to
make recommendations to state supreme courts which have the power to ad-
minister discipline. By 1976 forty-four states, including Puerto Rico and the
121
District of Columbia, had adopted some judicial disciplinary machinery other
than impeachment. Judges who are guilty of misconduct, are grossly incompetent
or suffer from some disabling disease or disorder, have no place in judicial ad-
ministration. The extension of such plans to all fifty states and the federal courts
and their improvement is another basic ingredient of a good judicial system.
ORGANIZATION OF COURTS
The proliferation of courts in this country tending to follow the English pattern
has been a major contribution to some of the current problems. Successful efforts
to unify courts into a cohesive, simple-tiered system has done much to strengthen
and streamline the judicial process, providing it with flexibility and concentration
of judicial power and responsibility. At this time only sixteen states have imple-
mented Roscoe Pound's ideal of a single-structured court divided into two or
three levels, one to handle the appellate business and one or two for trial work.
The manner in which courts are financed is an important aspect of a successful
court unification plan. A central tenet of state court reform is full state funding
of state court systems — unitary budgeting. Although not a panacea to judicial
administrative ills, a system of unitary budgeting which allows for administrative
autonomy for self-sufficient local units could lead to improving the fiscal, mana-
gerial and constitutional position of the judiciary and thus give us better courts.
COURT ADMINISTRATION
Essential to the smooth function of the courts and replacement of the "go-
as-you-please" system characterized by Chief Justice William Howard Taft is
the establishment of professional administrative talent in the court system.
Individual judges should be relieved from problems of non-judicial personnel,
budget and calendar, so as to devote their principal attention to serving in a
truly judicial capacity. The employment of professional administrators has become
the practice of the majority of the states and within them, most of the major
city courts. Further development and expansion of this critical back-up service
to the courts will furnish a partial solution to the backlog crisis facing many of
our judicial systems.
Court reforms such as those briefly outlined above, as well as other programs
which the Society supports, including adequate judicial salaries, retirement bene-
fits and tenure; mandatory judicial retirement plans which permit utilization of
retired judges in court systems; improvements in the entire criminal justice
system; and continued education programs for judges and court personnel are
all aimed at helping the judicial system function more efficiently. Combined
with other companion projects, such as making legal representation available
tc all citizens, the courts will become accessible to all and provide an effective
forum for dispute settlement, whether civil or criminal.
The American Judicature Society is committed to these goals and thanks
you for this opportunity to participate in the important undertaking of this
Subcommittee.
Federal Trade Commission,
New York Regional Office, May 28, 1976.
Hon. John V. Tunney,
Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary,
Senate Office Building, Washington, D.C.
Dear Senator Tunney: In reply to your inquiry of May 20, 1976, the New
York Regional Office receives approximately 50,000 consumer complaints per
year, of which I estimate approximately 15,000 involve instances where the com-
plainant and the firm involved are in different states. Approximately 2,000 of
these remain unresolved. In cases involving firms in the same locality as the com-
plainant, we routinely recommend resort to small claims court where appropriate
to obtain an adjudication on the merits.
Where the consumer and the firm are located in different states, however, this
is not practicable. No mechanism now exists for adjudication of the merits in this
kind of situation involving individual complaints. Where a violation of federal
law of sufficient magnitude is involved, consumer redress under section 206 of the
Magnuson-Moss Warranty — Federal Trade Commission Improvement Act may,
of course be sought.
The above response is designed to be solely an informational response to your
request and not to convey any conclusions or recommendations on behalf of
either the Federal Trade Commission or its staff with respect to the matter.
Respectfully,
Richard A. Givens, Regional Director.
o
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