Hanner v. DeMarcus

PETITIONER:Hanner
RESPONDENT:DeMarcus
LOCATION:Formerly Sam’s Stationery and Luncheonette

DOCKET NO.: 497
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 390 US 736 (1968)
ARGUED: Mar 28, 1968
DECIDED: Apr 29, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – March 28, 1968 in Hanner v. DeMarcus

Earl Warren:

Number 497, Josephine Hanner, petitioner versus Cecil Demarcus et al.

Mr. Haggerty.

Philip M. Haggerty:

May it please the Court.

Honorable Chief Justice I regret that my talents of narrative and description are probably not quite equal to the teller Mrs. Hanner and I think would’ve been more appropriate if her pleadings have perhaps been written by Charles Dickens.

Mrs. Hanner attempted to secure divorce in Maricopa County, Phoenix, Arizona and the 1959, these proceedings were held as a result of the somewhat complicated property situation, the trial court evidently felt that it was not equal to the accounting practices required and appointed a special master.

The respondent herein Cecil Demarcus to assist the court in determining what her property was, how she had acquired it and therefore what property might be considered her property and what the community property of herself and her husband.

The Court decided in the spring of 1959 that the special master’s report would be accepted and there’s this customarily and accordance with Rule 53 (a) of our rules which is of course the duplicate of the federal rules to award him a fee in the amount of approximately $5500.00.

It’s stated at that time that if this fee were not paid by Mrs. Hanner and they charged entirely to her within 60 days that he could have execution therefore in accordance with the statute.

Potter Stewart:

He had of course full notice of that, did she?

Philip M. Haggerty:

She was a party to the case, it was part of a judgment of which she was a party to the case she obviously had notice of it.

Potter Stewart:

The judgment was given him and award to him of $5500.00 with authority to execute upon that judgment in accordance with the statutes sets the judgment to be paid within about 60 days?

Philip M. Haggerty:

60 days was time that set by the trial court.

60 days is also the time limit for an appeal in Arizona and an appeal was taken to the Supreme Court of the State of Arizona.

The record as we play with some facts to the effect that Mrs. Hanner’s counsel and this particular CBA were practicing in the same small law building or small office building in Phoenix, Arizona that they saw each of the constantly that no reference was made by him to the fact that he might be proceeding by way of execution and by one affidavit in the record by Mrs. Hanner herself to the effect that she was affirmatively advised by him that he would wait the results of the appeal of the divorce action before any steps would be taken.

This is not particularly a natural in view of the fact that she did appeal to the Supreme Court of Arizona, the Court’s decision that she had to pay the entire amount of the fee.

She did not object to the actual dollars and cents just to the fact that her husband was not required to pay any of it at all.

In September of 1959, Mr. Demarcus without any notice caused the writ of execution to be issued out of the clerk’s office delivered to the sheriff in Maricopa County and levied upon her real properties certain portions of it four lots located in a commercial street in Phoenix, Arizona.

The method of levy is set forth in our statute and noticed in our brief that is simply by filing a copy of the writ of execution with the county recorder, this was done.

There is a requirement that execution sales be advertised.

This was done.

Three copies were pointed on the bulletin boards of the courthouse at Maricopa County.

I assume the members of the Court have seen courthouse bulletin boards and are aware the general condition this is no better or worst than any other, they’re hundreds of notices posted on the board.

Notice was published in a weekly paper which is devoted almost exclusively and entirely to legal notices, reprints of exact articles have been corporation probate proceedings about a hundred page is about 85 must be solid legal advertising.

Mr. Demarcus brought the property, entered execution sale for the amount of his judgment plus some dollars which apparently were cost in connection with the execution and perhaps interest from the time of the judgment.

Byron R. White:

Was this — did you say there was posting on the property?

Philip M. Haggerty:

Not on the property itself.

Byron R. White:

Is that required?

Philip M. Haggerty:

It is not required.

Byron R. White:

And is this — this system you described is not in characteristic in state execution and in foresales, does it?

Philip M. Haggerty:

This is the system, statutory system.

Philip M. Haggerty:

It is what is the law requires and what is followed.

Byron R. White:

And not only in Arizona?

Philip M. Haggerty:

Pardon me?

Byron R. White:

This isn’t just peculiar to Arizona, isn’t it?

Philip M. Haggerty:

No.

I am sure there are many other states that have similar systems.

Some older states I think do notice the property itself.

This is an older requirement but it is not followed in the State of Arizona.

We do have a requirement of statute which of some interest.

A law state that a sheriff on an execution must levy upon personal property before he levies upon real property and a writ of general execution and that was the writ that was issued in this case.

Mr. Hanner as special master knew that his now judgment credit better had personal property the value maybe in dispute but it was certainly there and may very well have been an excess his judgment as a CPA with knowledge of all her books and records to a greater extent than even a lawyer would know.

He knew how much property she had and what it was worth.

The law requires also that a judgment better may point out to the levying officer the property he desires to be levied on it and if the officer then deems it’s sufficient to satisfy the execution, you shall make levy on no other property.

Mr. Demarcus also knew by reason of his position as special master that she had other lots of real property available in the county maybe worth more maybe less, some incumbent some not incumbent.

Actually, on this particular piece of property, two other parties showed up as having an interest in it or it was, we don’t know they never defend the quiet title action so evidently they didn’t think it was much.

After bidding this in at the execution sale, he waited for something like two years before any further proceedings were taken.

During all this time, the original divorce action was still pending in the Arizona Supreme Court and the question of whether or not she should pay the entire fee or whether it should be divided between her and her husband entire fee for Mr. Demarcus and still been ultimately unresolved.

William J. Brennan, Jr.:

Could there been a stay of this execution?

Philip M. Haggerty:

It is probable that a supersedeas bond could have been issued and a stay issue.

It is not particularly common to issue a stay of execution and a divorce because nothing was done between the Hanners themselves.

William J. Brennan, Jr.:

Well, I mean in so far as is this word, isn’t it?

Philip M. Haggerty:

There could’ve been stay, a stay of execution could’ve been issued.

William J. Brennan, Jr.:

Is there a reason why one wasn’t sought?

Philip M. Haggerty:

There are two reasons, I believe.One is that she states she was advised by Mr. Demarcus and he wasn’t going to do anything, that her lawyer was seeing him daily.

They just plan out did not think it was necessary.

They did not believe he would take this route.

William J. Brennan, Jr.:

Did you say that her lawyer and Mr. Demarcus shared an office together?

Philip M. Haggerty:

They are in the same building and as the affidavit submitted and even the deposition note they saw each other quite often, that’s about a six-story office building there are maybe 40 offices in it and quite a fact Mr. Demarcus was the choice of Mrs. Hanner’s former counsel to be the special master, they knew each other.

William J. Brennan, Jr.:

Is there anything to indicate whether the lawyer knew that he was about to levy this execution?

Philip M. Haggerty:

The evidence says on the affidavit of Mr. Levy is that he did not in fact know that he was as surprised as Mrs. Hanner.

William J. Brennan, Jr.:

Was that contested by counsel to the other side?

Philip M. Haggerty:

There are no affidavits of that, no as a matter of fact it is not that neither Mrs. Hanner nor her counsel were ever advised and that there was certainly opportunity to advise them that these steps were being taken.

The affidavits which sets this forth and was submitted to the Superior Court and the Supreme Court of Arizona had never been rebutted on this or never challenged factually.

William J. Brennan, Jr.:

Has that appeal ever been decided by the Supreme Court of Arizona?

Philip M. Haggerty:

Yes.

At that time of course our appeals were going very slow and slowly in civil cases.

In January of 1964, a year and a half after the supply of title action was brought.

The case was decided and the Supreme Court did decide that since she actually own the most of the property, she should pay the fee, the entire fee.

William J. Brennan, Jr.:

So —

Philip M. Haggerty:

So we do not challenge now that the entire fee is doomed.

Mr. Demarcus, there was one dissent on that issue alone but that merely to show we pointed out merely to show that the Supreme Court did consider this and then it was before them, the division of the fee.

We believe that basically her rights have been seriously violated for several reasons.

One is actually peculiar to the case.

The fact that this man is a special master of the Court, he sits in the place of the court to decide contested issues before him.

He has by virtue of his position the right to demand and did in fact demand and investigate all of the books and records and belongings of Mrs. Hanner.

They were apparently extensive and judging from the report probably in pretty bad shape that he knew everything about her property more than almost anybody would, and that although technically speaking, he was advised or she was advised that a writ of execution could issue the relationships of the parties were such that this was a totally unexpected result and that he affirmatively misled.

Earl Warren:

Who paid the taxes from the time of the execution up to the hearing or whatever it was?

Philip M. Haggerty:

Up to the time of the filing of a quiet title action, 1962 she did, Mr. Hanner so far as we know.

The tax receipts were introduced in evidence.

Thereafter, I’m not sure who has paid them.

I think right now just put in.

Earl Warren:

Your client paid the taxes up to six —

Philip M. Haggerty:

Up until the initiation of a quiet title action which in effect to deprived her with the property.

Earl Warren:

Well, if the execution was valid, would not the other side have been required to pay the taxes?

Philip M. Haggerty:

In theory, that should’ve happen that way but in practice it did not —

Byron R. White:

Yes but the trade — a deed does an issue immediately after the sale I would suppose that a period to redemption as to around that —

Philip M. Haggerty:

Six months had applied and that expires to bring him up until (Voice Overlap) —

Byron R. White:

As soon as the deed issued and was recorded then the tax collected — to be collected from another person.

Philip M. Haggerty:

If they took notice of the change of property (Voice Overlap) —

Byron R. White:

Which they do.

Hugo L. Black:

May I ask you what is your standard question?

Philip M. Haggerty:

We believe that the Fourteenth Amendment is directed to the preservation of property rights as well as individual rights and that this question was raised all the way through the proceedings that this Court has previously held that property may not be taken without due process and that notice is essential.

That some sort of notice is necessary.

Hugo L. Black:

As I understand your chief objection up to date have been — have failed to follow state law.

Philip M. Haggerty:

Yes.

Hugo L. Black:

And the way they executed this levy.

Philip M. Haggerty:

Yes.

Hugo L. Black:

Well, are you arguing that failure to follow state law constitutes the violation of due process?

Philip M. Haggerty:

Of course we believe it can.

Now, if the state law had been properly filed — followed she might not have lost her property.

Hugo L. Black:

Well, she wouldn’t have lost the property as I understand you if they had evaded state law.

Philip M. Haggerty:

Yes.

Hugo L. Black:

Are you — if you present the case here it presents a question that I think it’s not been here before whether it’s a violation of due process for litigants to fail of a court — state court to fail to follow a state law?

Philip M. Haggerty:

I’m not sure I understand the question but in other words (Voice Overlap) state court fails —

Hugo L. Black:

Your basic argument is statute of Arizona required certain things done.

Philip M. Haggerty:

Yes.

Hugo L. Black:

In order or to be illegal, these things were not done as required by state law.

Is the only question you present whether this violation of state law amounts in itself the violation of due process?

Philip M. Haggerty:

Yes, essentially that is our major position.

William J. Brennan, Jr.:

If I don’t understand that.

If I read the opinion of the Supreme Court of Arizona accurately, I’m looking at page 25 of the appendix, the argument dealt with by that court was whether your law required any notice that is where the Rule 53 (a) and the holding was that your law did not require any notice as I read it, am I wrong in this 25 and 26 and that therefore the failure to give notice did not stand in the way of a summary judgment.

I thought your question here was whether a statute which did not quite require the giving of notice in these circumstances is unconstitutional.

Philip M. Haggerty:

No, it did not —

William J. Brennan, Jr.:

(Voice Overlap)

Philip M. Haggerty:

— the position that the statute was unconstitutional for failure to provide notice.

William J. Brennan, Jr.:

What is your position on that on the federal issue?

First of all, do I read this opinion correctly?

Philip M. Haggerty:

Yes.

That is apparently what Justice Bronstein said.

Frankly I have — that is what he said, frankly I have some difficulty in following his logic (Voice Overlap).

William J. Brennan, Jr.:

Well, maybe so but so far as we’re concerned we have to accept it that under Arizona law and no notice was required, is that right?

Philip M. Haggerty:

You said that this method is either — he denied that this method is either vague or lacking in the protections guarantee by the due process.

William J. Brennan, Jr.:

Well, what does this mean?

They, I gather you argue that Rule 53 (a) imposes such a notice requirement, we disagree.

A careful reading of rule makes it evident that the word “notice” refers to a notice to the debtor whose obligation that the rule does not then further require a notice of an intent to execute what’s notification the judgment has probably given, is that —

Philip M. Haggerty:

We are not taking the position that Rule 53 (a) requires any particular special notice.

Byron R. White:

Well, you — the question when you present here however in your paper, in your petition for certiorari, in your brief is whether or not it’s the violation of the Fourteenth Amendment to permit execution without notice and I thought that was a question we have whether the state procedure doesn’t require a separate notice when you execute after judgment and addition to notice the suit itself whether that’s constitutional because state court didn’t decide that notice was required and that this was just have to make that notice just said notice wasn’t required at all.

Philip M. Haggerty:

Instead that notice (Voice Overlap) —

William J. Brennan, Jr.:

(Voice Overlap) I don’t suppose if notice is required that be a quite an argument that this wasn’t whatever done here was notice.

Philip M. Haggerty:

I think we have a problem in that.

53 (a) just refers generally to execution and that we are concerned that the statutes (Voice Overlap) relates to execution.

William J. Brennan, Jr.:

But we can’t — we can’t be concerned.

Can we here with the rightness or wrongness as a matte of state law of what your Supreme Court held?

Philip M. Haggerty:

No.

William J. Brennan, Jr.:

You concluded by, aren’t we and don’t you have to argue this case on the premise that the holding of the Supreme Court that no notice was required at all under any circumstances, did or did not violate the requirements of due process.

Philip M. Haggerty:

That is what we are holding.

That’s what we’re saying the Arizona Supreme Court did not in fact really go in to the Arizona cases that they did not consider the procedure that happened.

We believe that the procedure requires notice and that this was not followed and that this is what is in error that the Supreme Court was procedurally compounding a difficulty that never should’ve existed if the statutes have been followed that their treatment of it is so cursory we can’t even say that they held that no notice supplementary notice at all has not required.

They merely said that, no notice under Rule 53 is not required but that they did not consider the question that the general statutes on execution do not require notice.

Potter Stewart:

Really, our question of course is — has to be exclusively the federal question and it really doesn’t make very much difference, does it, whether your argument is that to the extent that the Arizona Supreme Court said that the statute permitted this then to that extent the statute is unconstitutional in — as applied to this case and if the statute doesn’t permit it that still doesn’t change the constitutional question.

It’s still the constitutional question.

What happened in this case deprived your client of due process of law because she was not given notice of the execution, that’s your —

Philip M. Haggerty:

That is our case.

Potter Stewart:

— whether or not that was authorized by the Arizona statute is not very important.

Philip M. Haggerty:

Not essentially in other words, —

Potter Stewart:

Not at all, to our — to our issue here which the federal constitutional issue.

Philip M. Haggerty:

If the Supreme Court of Arizona in saying that no notice is required meant to include everything, every form of execution not just an execution under Rule 53 (a) then we think that they are clearly wrong and that their position is just not only in contravention of our own statutes but of the Constitution of the United States and we do not believe that this has been seriously disputed by the respondent in this case.

He disputes the method or the fact that we brought up to these issues sufficiently in the lower court not as to win on myself unfortunately we’re connected with the case at that time.

We believe we did preserve it but essentially apparently they agreed that some notice after judgment at least in this type of case is required.

Abe Fortas:

Precisely, what happens under your Arizona procedures?

Abe Fortas:

The sheriff levies execution on real property.

Philip M. Haggerty:

Takes a piece of paper from his office and goes to the county recorder’s office and that’s it.

Abe Fortas:

And that is general procedure not only under 53 (a).

Philip M. Haggerty:

That would be general procedure under any writ of special execution in any case.

Abe Fortas:

And then the county recorder or whatever it is records that execution has been levied on such and such a property.

Philip M. Haggerty:

Yes.

Abe Fortas:

And what happens next to what are the rights?

Philip M. Haggerty:

The sheriff is required to notice the property for sale.

Abe Fortas:

Now, what — how does he notice of this?

He give notice to the former owner or he just notice by publication or posting?

Philip M. Haggerty:

Posting at the county court house and a publication in a newspaper.

Abe Fortas:

But nothing is served on the owner?

Philip M. Haggerty:

No.

Abe Fortas:

And then the sheriff sale takes place and then somebody buys in the property.

Philip M. Haggerty:

Anybody (Inaudible).

Abe Fortas:

And then there’s a period of redemption, is there?

Philip M. Haggerty:

Generally six months, there are exceptions in our cases.

Abe Fortas:

And is there any provision for notification to the owner or former owner at that time?

Philip M. Haggerty:

There is none.

Abe Fortas:

And that he is just supposed to get notice from the publication.

Philip M. Haggerty:

Yes, if they happen to see him.

Abe Fortas:

Is this procedure different from the procedure prevailing another states?

Philip M. Haggerty:

Not essentially.

Abe Fortas:

That’s where it works all over, isn’t it?

Philip M. Haggerty:

In many states except some require posting on the property and some may have special notice provisions but generally this is —

Earl Warren:

I thought — I thought you contended that under your statute the judgment that are — have the right to point out the kind of property that he wanted sold first and that it was a duty of the sheriff to sell personal property first.

Philip M. Haggerty:

Yes.

Earl Warren:

And that there was personal property in this case, there was no — it was not sold first —

Philip M. Haggerty:

Yes.

Earl Warren:

— and also that the judgment there was not notified so that he had any choice to pick a piece of property that he wanted sold first and that the master picked the piece of property that was worth conservatively four times the amount of his debt.

Philip M. Haggerty:

Yes.

Earl Warren:

— or his claim, is that right?

Philip M. Haggerty:

Yes.

Earl Warren:

Well, how under your statute is the judgment that are notified supposed to be notified so he can make a selection of the kinds of property that he want sold first?

Philip M. Haggerty:

Obviously, the sheriff has to come in contact with him somehow or other before the writ of execution and the levy is filed with the county recorder’s office.

Earl Warren:

Does the statute say so?

Philip M. Haggerty:

No, it does not say how or why or when but it says he has the right to point out to the sheriff the property that he desires to be levied upon.

And as I’ve said this is a backhanded way providing notice but we do not believe how a legislature could say the sheriff has to have this property pointed out and then say, the debtor would have no notice.

Before he can point it out he has to know there was something there.

A debtor may have 50 pieces of property may have property worth 500 times, he may have one piece of property.

But the law gives him the right to point out to the sheriff the property he desires to be levied on and the law also requires execution on personal property and there’s a great deal of personal property which would never be carried on the personal property tax rules.

Presumably, he can tell the sheriff that he has personal property too.

Our Supreme Court in the earlier case the Blasinggame case said this must be done that the statutes mean what they say that personal property has to be levied upon first it was not a case of between choosing lots among whatever real property she might own or the judgment that it might own.

Earl Warren:

There was personal property here?

Philip M. Haggerty:

There was personal property.

It was not seized first until the Supreme Court said that sale can be set aside between the two parties.

Obviously, the judgment that are in that case found out about the sale fairly shortly after it’s in our case she has not find out until a year and a half afterwards and with the inception of the quiet title action.

Any liability sought against the sheriff would be gone by then.

William J. Brennan, Jr.:

Well, what do you do with this holding of your Supreme Court?

We conclude that the plaintiff acted entirely within his right as prescribed by a statute.

Why?

Philip M. Haggerty:

That they are just completely wrong.

Byron R. White:

Well then, maybe but —

William J. Brennan, Jr.:

Maybe but they just didn’t know.

Philip M. Haggerty:

They did not analyzed —

William J. Brennan, Jr.:

No, but the point is Mr. Haggerty, how — you’ve been arguing that they didn’t execute properly, they should’ve executed against personal property but your Supreme Court tells us and that’s why a holding that I suggest concludes us that this plaintiff did everything that the statutes of Arizona require them to do and affirm to summary judgment and among the other things they said was, he did not have to give a notice before he execute.

And I don’t know why your case doesn’t come down to whether or not that holding failed you to give notice.

Does it or does not violates the Due Process Clause of the Constitution and that’s all —

Philip M. Haggerty:

Basically, it ignored it and the wealth of other matters were brought up they just never considered and that if they say — if a statute provides X, Y and Z and if the Court says, they did that and they took care of that but the record shows in fact they did not.

I don’t think the Arizona Supreme Court can completely foreclose this Court from considering the constitutionality of a statute by merely saying, Oh, well, it’s all right completely.

Philip M. Haggerty:

We hold that everything was done properly even though the record shows that it was not and foreclose this Court from reaching any decision in the same area that the doctrine of judicial restraint does not go that far and we do not believe.

I see I have five minutes left.

If the Court has no questions I would like to reserve that time if I may.

You may Johnson.

Earl Warren:

Mr. Johnson.

N. Pike Johnson, Jr.:

Mr. Chief Justice and may it please the Court.

I’m afraid I must begin in our speciously no doubt by disagreeing with Mr. Justice Stewart’s position relative to the context — contextual validity of the constitutional issue before the Court and whether or not it has any real bearing but since Mr. Justice Stewart has left I believe I shall wait until his return, perhaps it would be only fair.

Indeed, it is the respondent’s position that the context within which this constitutional issue of notice has been raised is such as to deny the existence of the issue entirely insofar as this Court is concerned.

Mr. Justice Brennan has pointed out a dilemma in which petitioner now finds herself.

Petitioner contended and has contended throughout these proceedings no notice was given to her the execution which this factual situation we have no quarrel.

She has contended that she should have been given some notice of these proceedings and with that we have no quarrel despite the fact that in 1924, this Court held in the Encyclopedia Press case and that no such notice of post-judgment execution was constitutionally required.

We believe and we believe that this law is ought to be altered and that the inequities potential under that theory are manifested.

But let us examine, if the Court please, the context in which this issue has been raised.

Byron R. White:

Well, let me get this — let me get this straight.

You’re saying that constitutionally post-judgment notice execution is not required.

N. Pike Johnson, Jr.:

According to the Encyclopedia Press case, Mr. Justice White.

Byron R. White:

If it was constitutionally required you don’t contend, do you, that the notice given in this case was sufficient?

N. Pike Johnson, Jr.:

Again, if it please the Court, that issue has been raised in a context in which I believe I can demonstrate to the Court that it does not exist.

The context is all important.

The reason for it would be —

Byron R. White:

What if the Constitution required notice of sale as well as of the original suit, the notice was given here wasn’t sufficient, was it under Schroeder cases and like that.

N. Pike Johnson, Jr.:

But, if Your Honor please, the reason it wasn’t sufficient according to the —

Byron R. White:

Well, are you saying yes but or —

N. Pike Johnson, Jr.:

It was not —

Byron R. White:

— no but?

N. Pike Johnson, Jr.:

No Your Honor I would agree with the Court.

Byron R. White:

Well, that’s all I’m —

N. Pike Johnson, Jr.:

I would agree with Your Honor that it is not sufficient, no.

But let us examine the context in which the issue was raised.

Petitioner contends that the statutes of Arizona provide actual notice within the purview of the Schroeder decision and within the purview of the Constitution of United States and I flatly argue this according to their reply brief at page six.

N. Pike Johnson, Jr.:

We wish to reiterate that we are not asking this Court to declare any statutes or rule of State of Arizona invalid.

We believe that these statutes properly applied would provide sufficient notice.

The point is, however, that no notice was in fact provided.

Now, in what way do the petitioners alleged that the notice is required to that we go to the opening brief, on page 13, if the Court please.

And when is the notice — when is the requirement of notice arise, I’m quoting now on page 13 of the opening brief.

We believe it arises from the statutory requirement that a debtor be allowed to point out to the sheriff property he desires to be levied upon.

We can well imagine how a legislature after enacting such a statute would go home well satisfied and the belief that no real property could be seized without the judgment debtor is being aware of the levy and execution.

Petitioner is contending that the statutes of Arizona are constitutional provide actual notice within the Schroeder — within the purview of the Schroeder case.

Their chief argument is that this statute was not followed by the sheriff in his levy upon the property.

That argument, that precise argument, that constitutionality was denied due process was denied by the failure of the sheriff to comply with the admittedly constitutional statutes of Arizona was never, never once raised in the Supreme Court of the State of Arizona until the motion for rehearing.

This was the first time that the petitioner contended that no notice was given before that reason.

Initially before the Supreme Court of Arizona, they contended that that Rule 53 (a) which allows execution in the particular case of the master ought to require notice and that —

Abe Fortas:

Well, do you agree with that — with the contention that’s the way the statute properly construe works that is to say sheriff is advised to levy execution and then that statute means that the sheriff has to go to the debtor and sell on which property should I levy execution.

N. Pike Johnson, Jr.:

Indeed, I do Mr. Justice Fortas.

Abe Fortas:

That’s the way it should work and then it didn’t happen in this case.

N. Pike Johnson, Jr.:

There is no record I submit Your Honor upon which it might be suggested that it did not happen in the following sense.

First of all, that particular argument was never raised — Blasingame versus Wallace —

Abe Fortas:

Well, I’m not — I’m not interested in that at the moment but as I understand it then what you’re saying is that petitioner has not presented to this Court a constitutional issue that petitioner has urged upon this Court that petitioner’s rights were violated because petitioner did not received notice.

The notice of petitioner was entitled to, was notice provided by Arizona statutory scheme, namely that the sheriff upon being told to levy execution should go to the debtor and ascertain the debtor’s preferences as to the property upon which execution should be levied.

Is that the submission?

N. Pike Johnson, Jr.:

Precisely, Your Honor.

And that constitutional deprivation which now petitioner seeks to argue before this Court was never raised nor decided upon in the Supreme Court in the State of Arizona.

It was raised by a motion for rehearing which was summarily denied.

William J. Brennan, Jr.:

Well, what did you — I gather looking at your objection of the motion for rehearing what did you mean — what does this mean?

The motion is that the notice requirement of Rule 53 (a) was not complied with and you go on to your argument, is this matter has been met squarely by the Supreme Court in its original decision that is therefore not a proper subject of rehearing.

Is this — does it suggests that the Supreme Court in fact found that rule — the notice to Criminal Rule 53 (a) was complied with?

Is that what you meant?

N. Pike Johnson, Jr.:

No Your Honor.

Rule 53 (a) and the notice of which we are here involved are two entirely different issues.

The notice with which we are here involved is the notice required by execution statutes, that petitioner refers to and which the sheriff must present to the judgment debtor the opportunity to point out his personal property.

N. Pike Johnson, Jr.:

The notice referred to in the Supreme Court’s opinion was that within the context of Rule 53 (a) which states that if the stat — if the money is not paid to the master — master’s fee is not paid within the time set by the Court then execution — without, pardon me, after proper notice, it’s what it says then execution may issue.

Now, in the Supreme Court, the constitutional argument presented by petitioner was that this “notice” in that statute meant notice of the execution rather than notice of the judgment.

And further that if the state court did no so construe the statute it would violate Constitution of the United States.

That is the only constitutional question that was presented to the Supreme Court of Arizona and the only constitutional question upon which they decided.

They flatly stated that a clear reading of the statute immediately reveals that notice means notice of the judgment which was certainly given in this case and not notice of the execution.

Petitioner’s argument in that regard it seems to me to be wholly frivolous in the sense that it would be somewhat illogical.

Petitioner having already conceded that the execution statutes do demand actual notice, it would be if somewhat illogical now to argue that the master’s statutes ought to provide an additional notice and indeed in their reply brief they don’t — not so much has mentioned this argument that is the context of 53 (a) as demanding notice seems to have been dropped from the reply brief.

Now, they seem to say that somehow despite the fact that the proper context was not presented to this Court, despite the fact that they never argue to the Supreme Court that its statute relative to the sheriff’s presenting of this opportunity to the judgment debtor.

Despite the fact that there was never mentioned until the motion for rehearing and despite the fact that it was never passed upon or decided by the Supreme Court, petitioner wants this Court to find that there was something unconstitutional about this with the complete lack of context.

William J. Brennan, Jr.:

Well, let’s see.

I notice now the second ground on your opposition to the motion for rehearing states that the plaintiff ask for the rehearing in the ground that there were defects on the levy or an action is taken by the sheriff and you go on and argue against that that these matters were not included in appellant’s presentation the Supreme Court on its original decision and therefore have no proper place and a motion for rehearing and you cite an Arizona decision.

N. Pike Johnson, Jr.:

Climate Control versus Hill.

William J. Brennan, Jr.:

Climate Control.

Now, is that to say that you read the denial of a rehearing as on the ground not because this issue was not raised initially they were under Climate Control they were not entitled to be heard by the Supreme Court, is that it?

N. Pike Johnson, Jr.:

That is my interpretation Mr. Justice Brennan.

William J. Brennan, Jr.:

Are you suggesting them it’s an adequate state ground here that —

N. Pike Johnson, Jr.:

Indeed.

William J. Brennan, Jr.:

— disposes of under your authority we have to deal with this constitutional levy?

N. Pike Johnson, Jr.:

Well, I am indeed Your Honor.

First of all, the motion for rehearing according to the Supreme Court of Arizona, the motion for rehearing where there is a statutory matter to which they would not be entitled to rehear matters but for Rule 9 (a) of the rule of the Supreme Court which have been provided the leading case in Arizona controlling this Climate Control versus Hill, the nature of a rehearing.

It is a somewhat anomalous case and that it states that the rehearing — in rehearing nothing new can be presented because it has not been heard and therefore it was not a subject to rehearing nor can anything old be presented because rehearing is not to include the same grounds over which the Court has already been led.

Therefore, —

Abe Fortas:

Well, if I understand your point cuts a little deeper than that, you’re saying that this is an objection that should’ve been made, point that should’ve made at the trial stage and the action of quiet title so that you can then make a record, isn’t that right?

N. Pike Johnson, Jr.:

Precisely.

Abe Fortas:

And you’re saying that it wasn’t made until the petition for rehearing in the appellate court and there is no record of what actually happened whether the sheriff did or did not notified the debtor, is that your point?

N. Pike Johnson, Jr.:

Precisely Mr. Justice Fortas.

Indeed, Blasingame versus Wallace says everything that the petitioner suggests that it says.

It says that if a sheriff does not comply with his duty, if he does not give to the judgment debtor the opportunity to point out his property then the execution is defective and it will be set aside.

Therefore, petitioner is correct when he alleges — when she alleges that this particular portion of the Arizona statutes do require actual notice and do provide the debtor with an opportunity to know what’s happening to his property.

So Blasingame versus Wallace is right on point.

N. Pike Johnson, Jr.:

I would suggest to the Court that had Blasingame versus Wallace been raised at the Superior Court level in this case, in the motion for summary judgment there might then have been a question of fact relative to whether or not sheriff performed his duty and a record thereon and that the Supreme Court at that time might have denied motion for summary judgment and tried this case precisely on that issue.

It never was presented to the Superior Court.

Blasingame versus Wallace was never cited to the Superior Court and the Superior Court therefore have no record nor opportunity to factually investigate this or to make a record upon this issue and precisely the same thing occurred in the Supreme Court of Arizona.

Blasingame versus Wallace was never cited.

The execution statutes were never cited.

The argument was never made and the sheriff did not comply his duty and that is the precise argument that petitioner today in this Court relies upon to provide the constitutional deprivation which he seeks this Court to a judge existed.

Thurgood Marshall:

Mr. Johnson, what about the affidavit of Mrs. Hanner?

N. Pike Johnson, Jr.:

Mrs. Hanner’s affidavit —

Thurgood Marshall:

She says quite concessive that she received no notice —

N. Pike Johnson, Jr.:

From the Sheriff either indeed.

Thurgood Marshall:

From the sheriff.

N. Pike Johnson, Jr.:

I agree with that Mr. Justice Marshall however —

Thurgood Marshall:

Or is it your point that her counsel never mentioned a particular case, is that your point?

N. Pike Johnson, Jr.:

Well, my point if the Court please is that an affidavit of fact has no legal context in the absence of its being considered by the Court.

Thurgood Marshall:

Well, this is filed, it says — wasn’t this file with the Court?

N. Pike Johnson, Jr.:

Yes, if the Court please.

Thurgood Marshall:

Was it ever any counter affidavit filed with the Court?

N. Pike Johnson, Jr.:

To controvert that particular point, I would say no, Your Honor.

Thurgood Marshall:

So this was before the Court?

N. Pike Johnson, Jr.:

The factual —

Thurgood Marshall:

All of the courts?

N. Pike Johnson, Jr.:

Indeed it was, Your Honor.

It was no, Your Honor that particular affidavit was before the Superior Court and in the sense that it was in the record.

It was before the Supreme Court.

I would suggest to Your Honor, however, that even that particular factual situation has to be placed in some legal context and at least not only in a legal context state — in a state court before both the Superior Court and the Supreme Court of the State of Arizona.

Thurgood Marshall:

This affidavit was in both those courts?

N. Pike Johnson, Jr.:

It was indeed Your Honor but it was never placed in to a legal context by counsel.

It was never argued, it was never placed in a brief to the Supreme Court of Arizona and the Supreme Court —

Thurgood Marshall:

Well, then I’m right.

You say counsel didn’t mention a particular case.

N. Pike Johnson, Jr.:

Right, Your Honor.

Abe Fortas:

Well, what you’re really saying as I understand it is that the counsel never said that the — has a defense to the action of quiet title that the levy of execution was unlawful because as shown by this affidavit the sheriff failed to notify the judgment debtor, is that your point?

N. Pike Johnson, Jr.:

Yes, Your Honor, that is my point.

The Blasingame versus Wallace therefore was never cited nor argued particularly in a constitutional context, if the Court please, even if the Court might say that the factual issue and therefore the legal issue should somehow have been absorbed by the Court, Superior Court and that the Superior Court should somehow have rule in accordance with Blasingame despite the fact that the argument was never made to them relative to Blasingame.

Then I would respectfully submit that this is considerably beyond the Court’s perhaps proper providence but I would suggest certainly that in the total absence of this issue being raised in a constitutional context before the Supreme Court of Arizona, this Court would be denying where it to suddenly go back to that affidavit and state, this Court’s ought to have picked it up and ought to have realized some constitutional deprivation occurred by virtue of not having applied with the state statute.

Supreme Court of Arizona there’s a factual determination which the Supreme Court of Arizona is entitled to rule upon did they comply with our statutes?

Byron R. White:

Well, what if they didn’t though, don’t you still if that Encyclopedia case is good law about whether or not — no notice is required for execution?

That case, seems to have held that you don’t need a separate notice for execution after judgment as long as you had notice of the judgment, if that’s a good law, isn’t the case over whether or not state law was complied with here?

N. Pike Johnson, Jr.:

Absolutely, —

Byron R. White:

Even if the state law required actual notice and it was ignored?

N. Pike Johnson, Jr.:

Exactly, Your Honor.

However, I relied precisely upon the Encyclopedia Press case in my response to the petition for the writ of certiorari and since this Court saw fit to hear the case, I am somewhat weary of arguing the validity —

Byron R. White:

(Voice Overlap) maybe it was on his way to being overruled, didn’t it?

N. Pike Johnson, Jr.:

I have that feeling if the Court please.

I think the viability —

Byron R. White:

That’s why you’re spending so much time on the argument that anyway the issue wasn’t here.

N. Pike Johnson, Jr.:

That is precisely correct if the Court please.

I think if I have to rely upon the present situation upon Encyclopedia Press I would raise my hands and surrender because I do agree that there are potential inequities in that case.

There are things to be set forth, of course, an individual does not pays his indebtedness.

Perhaps he ought to suffer the risk of losing at least somewhat more not inconsiderably more but at least some what more.

Byron R. White:

But I take it you also agree, and I’ll go back to the question awhile ago that if notice is required here what was given was insufficient?

N. Pike Johnson, Jr.:

If notice under Schroeder is required and will be required under —

Byron R. White:

Executions.

N. Pike Johnson, Jr.:

— post judgment execution upon real property than the actual notice given in this case, I would suppose is not adequate.

I have no quarrel with that.

I am suggesting to the Court that in the context in which this lack of notice is raised in this case, this case and this state even that the state law within which this issue is raised, this is not the case neither the case nor the state within which to accomplish this result.

Perhaps another case tomorrow will arrive at this Court perhaps yesterday, we don’t know, in which petitioner will argue that the state laws do no provide actual notice of any kind and do not protect the judgment debtor in anyway and that therefore under Schroeder this Court should apply them — the Mullane, Hanover Bank case and rule that in post judgment execution on real property this sending of a simple letter syndrome should apply.

But this, I submit, is not a case in which this Court should decide that particular issue because counsel is not contending that the sending of a simple letter should be required.

Petitioner is contending the philosopher is on a due to provide actual notice and that do provide constitutional protection but simply that they were not complied with and this is the first time other than in a motion for rehearing which this Court has consistently held is not record upon which or rather it has no part of the record upon which the judgment is based in the lower court, therefore, which is not properly before this Court.

In the motion for rehearing, this was raised and now it is being raised in this Court when it should have been raised in the Superior Court of Maricopa County State of Arizona a long time ago and I submit that this Court does not set as an ad hoc, ad hominem investigator of constitutionality and at the same time as a reviewer of the actions of the previous counsel before petitioner is far back as the Superior Court for the State of Arizona.

N. Pike Johnson, Jr.:

I should like to make a few remarks relative to the equities in this matter.

The portrayal of my client as a dastardly fellow, an ambulatory sociological imbalance who has prevailed in such a fashion upon this poor woman carries with it the assumption that the Supreme Court of Arizona doesn’t know inequity when it’s staring them in the face.

And I assure this Court that such is not true for the gentlemen who sit upon that Court.

They have never failed to strike down an inequitable execution upon real property.

They did it in Blasingame versus Wallace, they did it in Young versus Serving House, they did in the celebrated case of Clarence O’ Jackson versus Montgomery Ward or Sears and Roebuck.

Sears and Roebuck.

They have done it consistently, they will continue to do it and there is no suggest — what is suppose did impress the Supreme Court of Arizona concerning the equities of this case.

Why did they think that the equities were on the side of my client because Mrs. Hanner and I’m searching for euphemism which might be appropriate to these hollowed halls but I can’t find any.

Mrs. Hanner (Voice Overlap) —

Thurgood Marshall:

Wouldn’t be helpful to use adjectives that are in the record than just stating an adjective that are not in the record?

N. Pike Johnson, Jr.:

Well, perhaps Your Honor I apologize.

Thurgood Marshall:

No, I’m —

N. Pike Johnson, Jr.:

But what adjective — to what adjective does Your Honor refer?

Thurgood Marshall:

Well, you said you were thinking of one.

I was afraid.

N. Pike Johnson, Jr.:

Well, it was the feeling, if the Court please, of the Supreme Court of Arizona.

I think the rightfully some that Mrs. Hanner would’ve beaten Mr. Demarcus out of his fee, out of every last penny of it were if not for the availability of the precise remedy which he prevail himself in this case.

Not through this entire period of years from 1959 to the present as Mrs. Hanner offered to pay Mr. Demarcus one single penny of the fee to which he admits that he is entitled and this I submit was the equitable factor of which impelled, which it pressed to these.

Now, the Supreme Court of the State of Arizona —

Earl Warren:

To do what?

N. Pike Johnson, Jr.:

To state for example of that Mr. Demarcus was proceeding fairly, that the execution was reasonable under the circumstances that he was exercising the precise right which was granted him by statute that he executed upon the only property, only property reasonable under the circumstances of this case, I believe these are the only separate property upon which it was reasonable execute.

The equities of the case according to the Supreme Court were on the side of Mr. Demarcus and I would suggest that to this Court that they were perhaps closer to the facts in this situation than we are today.

Earl Warren:

Did the Court — did that the Court hold that there was no other property that it could be levied on?

N. Pike Johnson, Jr.:

The Court was never Mr. Chief Justice never faced with the allegation that real property existed.

Earl Warren:

No, well, I understood I just understood you said a few moments ago that the Court determined that this was some most reasonable property to take and so forth and you say that it wasn’t raised but what were they doing with it or what were they making that decision on?

N. Pike Johnson, Jr.:

They were talking about the value of the property, if the Court please, in that context.

They were talking about whether or not there was an inequity between the value of the property and the fee.

That is my recollection, I stand corrected if anybody — if that is not so.

It is my feeling that they never mentioned the existence of any personal property because again the issue of personal property and the issue of the sheriff’s duty never raised, never raised before the Supreme Court of the State of Arizona or did they decide upon that issue.

The taxes, if the Court please, one reference to that matter in the record on page 18.

N. Pike Johnson, Jr.:

Josephine Hanner’s affidavit states that she paid the taxes from 1948 until 1960.

This indeed is I believe the correct state of facts.

I have the canceled checks.

Of course they were never made a part of the record but they are in my hand at the moment, canceled checks representing the payment of the taxes in 1961 and 1962 by Mr. Demarcus, our client, not by Mrs. Hanner.

The — I have always thought I may — if I may state if I have more time that Mr. Demarcus’ position as a special master and as an officer the Court has nothing whatever to do with this case.

He was at that time enforcing his rights as a creditor and indeed enforcing his rights in that capacity in precisely the manner provided, proscribed by statute and this again in this connection of the Supreme Court for the State of Arizona was correct.

I am, I suppose, requesting that the inevitable extension of the Hanover doctrine to post judgment execution statutes which I believe will occur in this Court, which I believe ought to occur in this Court.

I should like once more to request the Court not to accomplish that result in this case because in this case problem does not present itself in a manner in which that result could be accomplished without first violating the precedents of this Court, and second establishing a result which is not anticipated nor prayed for by either party.

Earl Warren:

Would that mean that if we consider the case is properly here that you’re entitled to lose?

N. Pike Johnson, Jr.:

That’s a difficult case to answer Mr. Chief Justice because —

Earl Warren:

Well, I thought you would answer it in that way.

Do you disagree with the —

N. Pike Johnson, Jr.:

If the case is properly here and if in the context in which it is here this Court can extend Hanover and state that my client should have sent a simple letter within the context in which this constitutional issue is presented and considering but that is not petitioner’s argument even remotely that his argument is that the state laws which provide actual notice were not complied with it if within this context the Court can imply — can apply Hanover then I should lose the case, yes Mr. Chief Justice.

Earl Warren:

Very well.

Potter Stewart:

Well, we would have to overrule the Encyclopedia Press case virtually, wouldn’t we?

N. Pike Johnson, Jr.:

Yes, Mr. Justice Stewart, you would.

But again, I find it —

To decide that you lose.

N. Pike Johnson, Jr.:

If I thought Mr. Justice Harlan that this result could have been contemplated and anticipated under this presentation and in the posture in which this case now stand, I have no doubt that there will be amicus briefs filed to this house from these various states whose statutes would be struck down with such a decision.

(Voice Overlap)

N. Pike Johnson, Jr.:

Again, Mr. Justice Harlan, they state flatly that they’re not trying to strike down any state statute.

I know but you go back to (Inaudible).

N. Pike Johnson, Jr.:

Even then this Court would have to go against petitioner’s expressed prayer and strike down at least by implication and indeed explicitly the statutes of the State of Arizona in the sense that they do not provide for actual notice which is not petitioner’s argument which indeed is precisely that which petitioner does not argue.

William J. Brennan, Jr.:

Well, I don’t know why your answer isn’t — I rest then on Encyclopedia.

N. Pike Johnson, Jr.:

I did not rest on Encyclopedia, Mr. Justice Brennan.

William J. Brennan, Jr.:

Why not?

That’s been overruled, it’s still in the books and I certainly reading it, it seems to cover your case.

N. Pike Johnson, Jr.:

It covers it precisely, Mr. Justice Brennan.

Byron R. White:

And for all you know there were only four people granted.

N. Pike Johnson, Jr.:

Indeed, Mr. Justice White.

N. Pike Johnson, Jr.:

I of course rest on —

William J. Brennan, Jr.:

Well, why at least don’t you rest on it what its worth?

N. Pike Johnson, Jr.:

Indeed, that’s what I will do, Mr. Justice Brennan.

Earl Warren:

Very well.

Philip M. Haggerty:

May it please the Court.

I believe I have a few moments left.

As far as the Encyclopedia Press case is concerned, we can draw at least one distinction in that case the parties were the ones directly involved and I think there is a slight difference that if John Jones sues Bill Smith and wins, Smith be pretty sure that Jones is going to do everything in site to collect.

We believe that Mr. Demarcus in this case is not a party to the action and that there is at least some reasonable distinction to be made on those grants.

We are not quite so —

William J. Brennan, Jr.:

Well, there was a judgment in his favor, wasn’t there?

Philip M. Haggerty:

Yes, but he is not —

William J. Brennan, Jr.:

Doesn’t Encyclopedia hold that constitutionally there’s no notice of execution required if he have notice for judgment, isn’t that what it holds?

Philip M. Haggerty:

It holds that there is no further notice required.

William J. Brennan, Jr.:

Right, if you — the Constitution doesn’t require further notice if he have notice to the judgment.

Philip M. Haggerty:

No.

Their Fourteenth Amendment would not require sitting by itself in the absence of any other —

William J. Brennan, Jr.:

Well, I don’t know what’s a fair Fourteenth Amendment?

Philip M. Haggerty:

Well, I mean no state statute.

It was not addition.

We believe his probably he’s still good lawyer, it could be.

We’re not really attacking that decision.

We don’t necessarily agree that it’s going to go down to the drain.

William J. Brennan, Jr.:

Well, if you’re not that I must say (Voice Overlap) —

Philip M. Haggerty:

They are saying that we have a state procedure which has added to the rights which a litigant in an Arizona Court may expect to achieve.

And when it has added to these rights, they become part of the rights which are entitled to Fourteenth Amendment protection and that they may not be disregarded even though the state went further than perhaps the Fourteenth Amendment might have initially proceeded as being a fair minimum.

Potter Stewart:

Well, is your —

Philip M. Haggerty:

We have a higher (Voice Overlap) —

Potter Stewart:

(Voice Overlap) Is there an equal protection argument under the Fourteenth Amendment that Arizona accords people generally all of the people for these rights that you tell us about which are —

Philip M. Haggerty:

Yes.

William J. Brennan, Jr.:

— more than what the constitution or otherwise require but that by denying and discriminating (Voice Overlap) —

Philip M. Haggerty:

In this particular case.

William J. Brennan, Jr.:

You in this case has denied you equal protection of the law under Fourteenth Amendment, is that your argument?

Philip M. Haggerty:

Yes and when we have a higher we (Voice Overlap) everyone must follow at least within the State of Arizona that we have established a procedure to which all must adhere and with this it’s been violated, her rights have been violated and this Court may take notice of it.

We do not agree with the respondent’s contention that a motion for rehearing is outside the record, this case just simply do not support that.

Abe Fortas:

Well, the first time you may —

Philip M. Haggerty:

In the event a new theory, then perhaps you are too late.

Abe Fortas:

Do you agree that the first time that the point was made below was on the motion for rehearing, that is the point to which I’m referring being that the execution should be set aside for failure of the sheriff to discuss with the judgment debtor or as the judgment debtor about which prompt should be levied on first.

Philip M. Haggerty:

In the Superior Court, it was brought to the attention of the Superior Court that no notice was ever given.

Abe Fortas:

But did — where is the —

Philip M. Haggerty:

And they tried to argue (Voice Overlap) —

Abe Fortas:

Was a legal argument made or was not?

Philip M. Haggerty:

Not in those precise words.

Abe Fortas:

Well, when you say it was brought to the attention of the Superior Court, do you mean otherwise and by the narration and the affidavit?

Philip M. Haggerty:

Principally by the answer itself which was filed in the action, it’s part of the answer, it’s part of the affidavit and reply to the motion for summary judgment, it’s part of the motion for a new trial in the Superior Court, it’s a very brief record.

They tried.

They just never got it resolved.

The emphasis perhaps was not as clear as might have been.

Unfortunately, I think it’s —

Abe Fortas:

Well, then you are contending (Voice Overlap) before it was made the trial.

Philip M. Haggerty:

Sufficiently to call to the attention of the Court.

They should have realized that this is a question of notice and loss of property, three times.

Pardon me?

Abe Fortas:

I don’t know what that means when you put that way without looking at the record myself again and satisfy myself.

Now, let me ask you one further question.

Your adversary says that your contention is that because of the failure of the sheriff to follow the proscribed procedure with respect to the designation of the property upon which execution is to be levied, it is your contention that the — your Fourteenth Amendment rights were violated.

Philip M. Haggerty:

Yes.

Abe Fortas:

Is that your whole submission that that was the vice in this proceeding?

Philip M. Haggerty:

Not entirely, the fact that he was an officer of the court and acting under the court’s seal as a special state action.

Abe Fortas:

Alright, first then next that he was an officer of the court —

Philip M. Haggerty:

Yes sir.

Abe Fortas:

— is there anything else?

Philip M. Haggerty:

No, basically those are (Voice Overlap) —

Abe Fortas:

(Voice Overlap) is the statute providing before the levy of execution without notice.

Philip M. Haggerty:

Yes.

Abe Fortas:

You’re not attacking that?

Philip M. Haggerty:

Yes, we are attacking the levy without notice.

Abe Fortas:

No, you’re not — are you attacking the constitutionality of the statute 53 (a)?

Philip M. Haggerty:

No.

Abe Fortas:

Or what you’re attacking is the failure of the sheriff to follow the procedure specified in Arizona’s execution statute, is that right?

Philip M. Haggerty:

Yes, we believe anything under 53 (a) can be adequate state grounds, it’s not that basic.

Abe Fortas:

So, you’re not attacking 53 (a), it’s a failure to give notice or to notify the judgment debtor as provided in Arizona’s execution statutes?

Philip M. Haggerty:

That is the heart of our case.

Abe Fortas:

And the second point is that that was unconstitutional under the Fourteenth Amendment because the judgment creditor was an officer of the court.

Philip M. Haggerty:

This, we feel as an added much more narrow grounds (Voice Overlap) —

Abe Fortas:

And that’s your case?

Philip M. Haggerty:

That is basically our case.T

thank you.

Hugo L. Black:

May I ask you a few?

Philip M. Haggerty:

Pardon me?

Hugo L. Black:

Are you saying that when the state passes law which gives certain protection to the party, the Due Process Clause requires that if we decide this case, we decide it according the law, so that means that they should observe state law on all cases and not just on some, is that it?

Philip M. Haggerty:

Well, it comes a point I suppose when the violation of a particular state is sufficient gravity to say that due process has been violated but basically yes that when the state establishes a denominator it must adhere to it however low or high the common denominator maybe and that the violation of that is for that citizen the violation the due process and which this Court may take notice and may not because the grounds may not be serious but it is a possibility and it can so act.

Earl Warren:

Have you raised the equal protection issue any place?

Philip M. Haggerty:

No, not in those terms.

Not as Justice Black and Mr. Justice Black went through it.

We said that he has taken — we are still basically without due process.

We’re more concerned with that rather than equal protection although the two so intertwined is difficult to say that we’re standing on one and falling on the other.

Thank you.

Earl Warren:

Very well, Mr. Haggerty.