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Full text of "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"

' 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 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 

7 

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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 
S3 r stem. 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 weekh T 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 



® iu 7 D 6 i y , C H' 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 exi s tin g procedure governing the pleadings, pretrial 
stage, or trial stage ef a eiv4l ac t ion.- 

3%w btH would s pecificall y establish three model f o rmat s 
for stipulated procedure in impl e mentation 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 
appli cable to the pleadings and t«a4 stage s are alike, while the 
pretr ial etnd motion phases vary. 

: Fhifl biH would provide, as respects aH three model formats, 
the f ollowing i mportant 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 test 1 
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 



74 



— 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 



75 



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 



76 



— 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 



77 



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 



78 



— 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. 



80 



— 9— AB3704 

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 



81 



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 



82 



— 11— AB3704 

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 l f 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 1 8 28.1. 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 1 8 24) dftd the 

11 voluntary «se of stipulated proccduroo permitte d 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 1 8 24.1. 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 1 8 24.2. 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. 



87 



AB3704 — 16 — 

1 TITLE fir ALTERNATIVE STIPULATED 

2 PROCEDURE S FORMAT A 

3 

4 CiiAPTEn h Pleadings 

6 18 05; -(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 permitte d 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 9 ubgtantial 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 1 8 25.3. -(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 j ustice 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 1 8 26. 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 1 8 27.3. Trial briofa shaU fee permitted, fewt are ftet 

32 required. 

33 1 8 27.4. 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 S ection 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 1 8 27.12. 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 1 8 08. -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 affirmativ e 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^J 9 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 avermen t 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 claim s 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 1 8 08.2. -(a)- It is rtet necessary te aver the capacity ef 

3 ft party te s«e er be sued er the authority 1 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)- S tatements 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 S imilar action may be taken if scandalous er indecent 

36 matter is inserted. 

37 1 8 08.5. -(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 permitt ed 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 1 8 29. 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 1 8 Q9.5. 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 1 8 Q9.6. 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 1 8 30. 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 1 8 30.1. issues ef an aetion governed hy the procedure 

34 m this title shall he tried hy the eeurt and not hy a jury? 

35 1 8 30.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 1 8 30.6. 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 1 8 30. 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 1 8 31. -(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 ^/"^ B r /**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 s hall fee specifically stated. 

3 1 8 31.3. •(»)• 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 s tate 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 S imilar action may fee taken if scandalous er indecent 



108 

— 37— AB3704 

1 matter is inserted. i 

2 1 8 31.5. •(»)■ 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 1 8 31.8. 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 1 8 32. Ne discovery shall fee permitted m any eetie» 

12 governed fey the procedure » this title. 

13 1 8 32.1. 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 1 8 32.2. 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 1 8 32.1 ¥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 judgme nt? 

5 -(e)- One motion may be made by each part)' fer 

6 summary judgmen t 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 S ection 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 permitte d 

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 1 8 33.0. : 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 permitte d m the manner a»4 for the duration 

7 determin ed 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 judgmen t 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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