Juidice v. Vail – Oral Argument – November 30, 1976

Media for Juidice v. Vail

Audio Transcription for Opinion Announcement – March 22, 1977 in Juidice v. Vail

del

Warren E. Burger:

We will hear arguments next in 75-1397, Juidice against Vail.

Mr. Greenwald.

A. Seth Greenwald:

Mr. Chief Justice and may it please the Court.

This is an appeal from a judgment or order of a three-judge District Court in the Southern District of New York, which declared unconstitutional, seven Sections of New York’s judiciary law.

They were declared unconstitutional as on the basis that they were unconstitutional on their face.

In other words that basically that every word in them was unconstitutional, and the basis of this declaration was that they were in violation of the Due Process rights of the appellees — plaintiffs below.

The statute, or Sections of the statute in question form part of Article 19 of this law, which provide a process and framework for punishing contempts of court.

In this case, those that are denominated or processed for punishing civil contempts.

However, it should be I think pointed out that this process applies to all disobedience or disregard of court orders, and while this case is said to come up in the context of disregard of a subpoena or in supplementary proceedings to disclose assets after a judgment is obtained.

It would also apply the order of declaration of unconstitutionality to people who violate injunctions in the State Court, support orders where husbands or wives are to support their spouses and the like.

William H. Rehnquist:

Well, are you saying that he District Court didn’t merely strike it down in its application as to these particular plaintiff would simply say the State of New York couldn’t enforce it at all?

A. Seth Greenwald:

I say yes that and that was the effect that the State of New York could not enforce or punish contempts of Court.

And I say that because it declared the seven Sections of the law unconstitutional on their face, and it also declared this to be a class action and the plaintiffs were all people who’d ever been subject to civil contempt in the State of New York.

And I think it’s rather clear from the order that it applied to people who have been and who are currently subject to be.

So it had a all pervasive effect and as I say, it basically and totally enjoined this process, which is fundamental to the operation of any court, state or federal.

Now, as to what are called the facts of this case, the District Court resided what it called the typical case of Harry Vail.

I wish to emphasis that this was based on simply allegations in a complaint, because there was no trial here, indeed, if you look at the record there’s not even an affidavit from Harry Vail as to the facts of his case.

William H. Rehnquist:

Did the state file an answer?

A. Seth Greenwald:

The state in this case or the appellant’s State Court judges, were at the time of the hearing before the three-judge court, moving to dismiss.

In effect they never got a chance to file an answer, and I would submit that when the plaintiffs are simply moving for a preliminary injunction, obviously according to the federal rules, there’s no requirement that we file an answer.

And after the grant of what was called at first by the way, it was a final order, and then the District Court revised it for partial summary judgment, but basically of course, the partial summary judgment was an injunction and in effect the grant of final reliefs, and certainly it was final insofar as to the appellant’s in State Court judges.

Thurgood Marshall:

But they did on page 20, it seems they did try to limit it.

They granted a declaratory judgment which said, “It was only enjoined against being used against the members who declared.”

A. Seth Greenwald:

But I wish to emphasises —

Thurgood Marshall:

Then I interpreted that they were trying to cut back a little?

Not that they were successful.[Laughter]

A. Seth Greenwald:

I think the District Court realized, because we had a hearing after the first order came down, after the decision came down, which was in the form of an order.

And I pointed out to the District Court that their order was so all pervasive and all encompassing that it would wreak havoc with the process of State Courts adjudicating civil contempt in the State of New York.

And I can confidently say that that was the situation.

Judges and lawyers in the state were in such a state of confusion that nothing could be done.

A. Seth Greenwald:

Now, in answer to your question, I think the point was that the District Court may have thought it was perhaps cutting back or being more a little judicious in its order, but the practical effect was still that there was no way in the State of New York to issue — even issue process in order to show cause.

Thurgood Marshall:

Because they held it unconstitutional on its face.

A. Seth Greenwald:

Yes.

Thurgood Marshall:

On their face.

I guess, you mean on their faces.

A. Seth Greenwald:

And when you excise seven Sections of judiciary law, which provide for the issuance of process, which provide for the hearing, which provide for the punishment, you are left with nothing.

And as it was pointed out I think, by the Sheriff of the city of New York, unless there’s a statute you cannot ultimately punish someone for contempt by commitment in the State of New York, unless there is some statute in existence.

Now, getting back to the case of Harry Vail, I also wish to emphasize, and this involves all the appellees that this involves one county of the State of New York, what seems to be the practice or procedure in Dutchess County.

I think my briefs and the cases I cite show that it is not uniformly or the rule throughout the State of New York as to how Courts proceed in the adjudications of civil contempt’s, and —

Warren E. Burger:

If a witness does not appear in response to a subpoena in an ordinary lawsuit under the New York code, is the procedure much like this that is to issue an order to show cause to that witness why he should not be punished for contempt?

A. Seth Greenwald:

I would say that it is basically the same that you see, disobedience of the subpoena is punishable as a contempt of court and indeed the subpoena here and pretty much any subpoena that’s issued states on its face that disregard of the subpoena is punishable as a contempt of court.

And through the subpoena.

A. Seth Greenwald:

Right.

Byron R. White:

Requiring any witness to show up anywhere, isn’t it?

A. Seth Greenwald:

Yes, I mean that is ultimate remedy of the Court to enforce the subpoena.

There has to be some method of enforcement.

Thurgood Marshall:

Isn’t that without — truly without statute?

A. Seth Greenwald:

There has been some discussion as to the inherent power of a Court to punish a civil content.

Byron R. White:

Well, that’s what subpoena means as a matter of language.

It means show up under penalty of — that’ll happen to you if you don’t show up?

A. Seth Greenwald:

Yes, but I submit that in the context of New York’s procedure and judiciary law which sets forth a process for the punishment or citing someone for civil contempt and then a hearing and then an adjudication of contempt that fully satisfies Due Process.

Now, Mr. Vail and the other appellees complain of being found in civil contempt and that after being found in civil contempt they were fined for that civil contempt, and after they failed to pay that fine they were — or he was, not all of the appellees were, committed for nonpayment of that fine.

Actually I would point out that in Mr. Vail’s case it happened to be one day and in fact all the appellees who say they were committed was a very short period.

Warren E. Burger:

Let me see if I understand this sequence correctly.

At first he received a notice in the form a subpoena that required him to appear for the usual post-judgment inquiry of a judgment debtor, is that correct?

A. Seth Greenwald:

As to his assets.

Warren E. Burger:

And he did not respond to that?

A. Seth Greenwald:

He did not respond to that.

That is –

Warren E. Burger:

Then the court, when he did not appear, the court issued an order to show cause directing him to appear to show cause, why he should not be punished for contempt, that’s correct?

A. Seth Greenwald:

That is right.

On the application or affidavit or affirmation of the judgment creditor’s attorney, he requested.

Warren E. Burger:

And he failed to appear to that?

A. Seth Greenwald:

Yes.

Warren E. Burger:

And when he did not appear then, then the court issued an order imposing a fine and that was the third stage.

A. Seth Greenwald:

That was the third stage.

And this by the way all these were of course personally served on the judgment debtor, as far as the facts of this case, there’s no dispute about that.

Although, you’ll see an affidavit someone claiming, he got a subpoena in the mail.

If the be the case, then that is a complete defense to the action or the proceeding.

But certainly as to the class, all of this is personally served, and as I say that these are Court records.

Warren E. Burger:

And do I understand correctly that the fine of some $270 so called fine, was then, did not go into the treasury of the Court but went to the judgment creditor to apply on the debt, is that correct

A. Seth Greenwald:

That is correct.

The fine — since this is denominated a civil contempt goes to the party instituting the proceeding and in all of these cases goes to the reduction of the judgment and I think in Mr. Vail’s case, the fining order required him to pay $10 a week.

So therefore, it wasn’t something that had to be paid all at once.

Now, I think the context of one default after another, has to be recognized.

When we speak about Due Process, as to this contempt proceeding, there is no dispute that every one of these appellees got notice and furthermore, received an opportunity to be heard.

And, if at any point the contemnor, that’s the judgment debtor, had responded and informed the judgment creditor in proper manner, or the Court of their indigency because these appellees claim they’re indigent, and evidenced his lack of assets.

Since the matter would be ended, because that was the object of the subpoena, to examine as to assets.

So once again, I would state that to Mr. Vail and every other appellee here, Due Process was accorded.

John Paul Stevens:

Mr. Greenwald, let me just clarify this one thing in my mind.

Had the — Vail to take the example, responded to the discovery proceeding and come in and testify that he had no assets, under New York practice, what would have happened then?

A. Seth Greenwald:

That’s the end of it.

He’s responded to the subpoena —

John Paul Stevens:

Did they vacate the judgment then, the default judgment?

A. Seth Greenwald:

No, the judgment is not vacated, but the point is that the purpose of the subpoena was to examine this judgment debtor to see whether he had any assets available to the satisfaction of the judgment.

That was the only purpose of the subpoena.

To vacate —

John Paul Stevens:

If the examination discloses the kind of a border line case say, does the judge have the power at that proceeding to enter some kind of a payment order other than the initial judgment?

A. Seth Greenwald:

Absolutely not, because the point is that the judgment debtor has responded to the subpoena.

He’s not in default.

A. Seth Greenwald:

The only way to vacate the judgment would be of course either to make a motion to vacate the judgment, or declare bankruptcy which then can wipe out the judgment, but that’s another process.

William H. Rehnquist:

Is there a judge there at the supplemental proceedings?

A. Seth Greenwald:

The supplementary proceedings are done on a subpoena issued by the attorney, and normally a judge is not there.

They can, there’s some process —

Potter Stewart:

When you say there, where is there, in the court room?

A. Seth Greenwald:

At the court room, or I think they often times it returned to the lawyer’s office.

Byron R. White:

Like a deposition.

A. Seth Greenwald:

Like a deposition, right.

Potter Stewart:

And how often can the judgment creditor do this.

Let’s say the first time he comes in and the judgment debtor says “Sorry, I have no money and I have a lot of debts and no assets.”

Then, can the judgment creditor trial over again the following week?

Is there any limit on how many times or how frequently he can do it, otherwise?

A. Seth Greenwald:

I do not believe there is any limit, but I would submit of course if this comes down to being harassment that obviously relief from the court can be obtained.

Indeed I cite the case where in my reply brief, case for (Inaudible) bank where the State Court simply enjoined any further supplementary proceedings after being informed in an informal manner, just a letter of the fact that the judgment debtor was on public assistance.

I also wish to emphasis in having stated what is called the facts that if this type of matter, this type of adjudication of civil contempt is to be reviewed, I submit that this Court should do it on what is a full record.

Namely, where it has come up through the State Courts where the matter has been fully litigated and the facts found.

And this is why I contend that the District Court should have abstained.

In other words, it should have considered the applicable principles of federalism, comity and equity which apply to any Federal Court when I see it in effect reviewing State Court decisions.

William H. Rehnquist:

You mean abstention that in the sense that Younger and Huffman, and not in the sense of letting the State Court decide a question of state law?

A. Seth Greenwald:

Well, I am not speaking in the sense of the younger Huffman abstention.

However, I will say that I think it’s not completely clear, or I think that the abstention to obtain a ruling of the State Court as to procedures might be efficacious in this case too because you are dealing here with a statute that basically has not been construed by the State Court in a —

Byron R. White:

Well, at that time, what was the precise status of this state proceeding when the injunction was entered?

A. Seth Greenwald:

Well, if we speak about —

Byron R. White:

There had been a holding of contempt?

There had been an adjudication of contempt?

A. Seth Greenwald:

In the case of Mr. Vail, apparently the whole thing was over.

It was almost like and that gets to res judicata.

Byron R. White:

What do you mean it was over?

A. Seth Greenwald:

He had been found in contempt.

Byron R. White:

Yes.

A. Seth Greenwald:

He had been fined.

Byron R. White:

Yes.

A. Seth Greenwald:

Commitment order had been issued, and he had paid the fine.

So the whole matter is over.

Byron R. White:

So he faced no confinement?

A. Seth Greenwald:

Yes, I mean certainly Mr. Vail’s case would not warrant an injunction, I think I could say.

However, if there was any complaint about that, then if it’s —

Byron R. White:

Well, the injunction probably didn’t affect his case in any way.

A. Seth Greenwald:

I couldn’t think it really did affect his case.

However, I can’t rely on the fact that Mr. Vail not having a case for an injunction because there were other appellees, in fact I think there were 8 or 9 in number and they came into Federal Court after they’d been adjudicating contempt and have been served with defining order.

And requested a temporary restraining order from the Federal Court and obtained same.

And I wish to emphasis by the way that I did not oppose any restraint — I mean, oppose these restraining orders, but I —

Byron R. White:

Did you ask for abstention in the lower court?

A. Seth Greenwald:

I certainly did.

And I think it’s rather obvious because there’s some discussion of it in the District Court opinion.

I also — though as to the people who had been already found in contempt, I had put in a motion to dismiss, and that’s all we had in the District Court.

Byron R. White:

What did the District Court mean by when he said that he was going to make his unconstitutionality judgment retroactive?

A. Seth Greenwald:

Well, because if we —

Byron R. White:

Does that mean that somebody could get his fine back?

A. Seth Greenwald:

It might very well mean that.

You see, reading from 20 (a) of the jurisdictional statement, this is the order appealed from.

The seven sections are unconstitutional on their face and permanently enjoining the operations, sets statutes against plaintiffs and members of that class namely all persons who have been or — are presently subject to civil contempt proceedings.

Now, if you say have been, I think that has a common — the common meaning to mean, anybody from the year one who’s ever been held in civil contempt.

He can be removed from that status.

In other words, fines would have to be repaid.

You have possibly of all types of legal action which would be quite disruptive of the whole contempt process.

Warren E. Burger:

You said that the contempt here has been satisfied by the payment of the fine which has been applied on the debt.

A. Seth Greenwald:

Yes, that’s —

Warren E. Burger:

So you regard that as res judicata?

A. Seth Greenwald:

Yes, the case of Harry Vail.

Warren E. Burger:

Now, suppose at this point, the judgment creditor served a notice in the usual way for an additional post judgment inquiry into assets reciting in that application that they were informed and believed under oath that the judgment debtor had inherited real estate and personal property in the value of at least $15,000.00.

At the present time, could they proceed given the judgment with the three-judge court?

Could they require him to appear and submit to examination and if he failed, could a State Court Judge ultimately find him in contempt?

A. Seth Greenwald:

Well, I would put it this way.

They still can of course serve a subpoena and supplementary proceedings.

The CAFA lawyer would be well advised to put on that subpoener as the form company.

The company that publishes this type of form in New York.

It’s generally a form what we call Bloomberg Forms, would have on it failure to reply to the subpoena not only would subject in punishment for contempt, but may result in your fine or imprisonment.

But at this point after this, after the disregard of the subpoena, if the attorney would seek to obtain the order to show cause to punish for contempt under Section 757, the procedure provided for, he could not do so, because under the judgment of the court below, it doesn’t exist anymore.

It’s been declared unconstitutional.

It’s been enjoined.

It can’t be used.

And, yes sir?

Harry A. Blackmun:

Can I ask you a question Mr. Greenwald?

As here, so often when a man goes to jail, all of a sudden a fine is paid.

And —

A. Seth Greenwald:

Yes, very curious.

Harry A. Blackmun:

Well, it’s possible is it not for the payment to be made out of the exempt property?

A. Seth Greenwald:

It might very well be possible for the payment, but I wish to point out and in my reply brief I cite the case of Brown against Liberty Loan Corporation where the Fifth Circuit reversed a lower District Court and held that it was not necessary to give notice to the fact that you have exemptions.

That Due Process does not require that.

Basically, Due Process doesn’t require or doesn’t legislate this type of notice and —

Harry A. Blackmun:

Well, what I wanted to ask, do you have any procedure in New York whereby a return of payment made out of the exempt property can be effectuated?

A. Seth Greenwald:

I do not know of any procedure.

The point I would make is that if a person has exempt property and chooses to satisfy his just debts and let us recognize the fact that there’s a judgment involved.

That should not be condemned.

He has an exemption.

He can rely on that exemption.

But if he has available money and chooses to pay this debt which has been reduced to judgment, I don’t see where any constitutional objection can be made.

Now as I wish to emphasis, the Federal Court here essentially took a state court record and then proceeded to review it as if it was a state appellate court.

And I submit that it does not have that power and under the principles of Huffman against Pursue that abstention is entirely proper in this case.

Potter Stewart:

Let me ask this in that connection General Greenwald.

How long these laws have been on the books in New York State?

A. Seth Greenwald:

The judiciary law was passed about the turn of the century.

I think it was enacted about 1906 or 1907.

Potter Stewart:

Are you certain that they’ve never been construed by the New York courts?

I have difficulty following that.

A. Seth Greenwald:

I say they have not been construed in light of these constitutional objections and that is the type of abstention.

The other type of abstention where England against —

Potter Stewart:

Medical Examinees.

A. Seth Greenwald:

— Medical Examinees.

That type of construction, and I also point out that as to the supplementary proceedings or the subpoena.

This type of subpoena I believe, the contempt process only became applicable in 1963 as result of civil practice law and rules which in a Section said that disregard of that the subpoener is punishable as contempt of —

Potter Stewart:

But that’s 13 years, and certainly these are not dead letter laws, they are used everyday aren’t they by —

A. Seth Greenwald:

Yes certainly.

Yes they are used everyday.

Warren E. Burger:

About these statutes, isn’t the statutory pattern similar to that in a great many of the states?

A. Seth Greenwald:

Yes, it certainly is and in our jurisdictional statement I cite a number of state statutes and I do not see anything basically different between their statutes and our statutes.

Thurgood Marshall:

Don’t they have a whole jail over in Brooklyn for nothing but these people?

A. Seth Greenwald:

No, we do not have civil — we do not have a specific civil jail in New York City anymore.

And in fact —

Thurgood Marshall:

Where did they put it now?

A. Seth Greenwald:

Put them in Rikers Island.

In point the fact though, it’s very difficult if the person takes his opportunity to be heard, to be fined or be found in civil contempt if you’re truly indigent.

And this brings me up to I think I should say, because I see my time is getting very short.

John Paul Stevens:

Mr. Greenwald, I shouldn’t use your time this way but could you help me?

What is the statutory authorization for the initial discovery notice served by the lawyer in the post judgment procedure?

A. Seth Greenwald:

The statutory authority is in the civil practice law and rules, I think in the 5000 or 5200.

John Paul Stevens:

But that has not been held unconstitutional?

A. Seth Greenwald:

No, that’s not an issue.

The appellees are not contending that they cannot be required to disclose their assets.

John Paul Stevens:

No, I understand.

Just to get my problem off before you.

The attorney’s notice then is not preceded by any court proceeding of any kind other than the default judgment, is that right?

A. Seth Greenwald:

No, the attorney issues the subpoena as an officer of the Court as he does in many states.

John Paul Stevens:

He has authority as a lawyer to pick the time and place and all the rest of it on his own?

A. Seth Greenwald:

Yes, he has the —

John Paul Stevens:

And for what period of time after the entry of the default judgment may he do this, until the judge is satisfied?

A. Seth Greenwald:

I think — I would be speaking from some vague recollection frankly that I’ve seen something like a 2 year limit on this.

I couldn’t cite the statute, but there is a time limit basically.

You can’t —

John Paul Stevens:

Now, the rule to show cause why the debtor shall not be held in contempt to court.

If the contempt of court is the failure to honor the lawyer’s subpoena, is that right?

A. Seth Greenwald:

That is correct.

I wish to emphasis.

The contempt of court is not the failure to pay the judgment.

John Paul Stevens:

But, do you know of any other state procedures which provide contempt of Court for the failure to respond to a notice of the kind which is not preceded by any court order?

Warren E. Burger:

Well, is it not the subpoena itself the Court order?

A. Seth Greenwald:

The subpoena is deemed to be a Court order, because the attorney in this case is acting as an officer of the Court as he does in many states.

I think in some States, he can issue say a number of types of process as an officer of the Court, but to what I wish to emphasis is —

John Paul Stevens:

That’s the different from the federal system for example.

A. Seth Greenwald:

Yes, of course.

Right in the federal system like I think a Marshall has to serve the summons in complaint.

In State Court anybody can.

William H. Rehnquist:

You have notices of deposition in the federal systems that are issued by large, and if you don’t show up for a deposition certainly court proceedings can ensue against you.

A. Seth Greenwald:

That’s right.

William H. Rehnquist:

It’s a violation of the Court order that then gives rise to the contempt, rather than the failure to show in the first instance.

A. Seth Greenwald:

Well, but the point is that Due Process, and this is what I wish to emphasize.

Due Process requires notice and an opportunity to be heard.

The order to show cause here, as it’s recognized in the District Court opinion gives that notice, and then gives the opportunity to be heard in Court.

Basically, the enforcement of this subpoener is a totally judicial process and —

Byron R. White:

Or, but at least he not only gets a subpoena but then if he fails to live up and to show up he then gets that order against him.

A. Seth Greenwald:

Yes, signed by a judge.

Byron R. White:

Which is, if he either come in and explain it or you’re going to be fined.

A. Seth Greenwald:

Or be punished for contempt.

Byron R. White:

Yes.

A. Seth Greenwald:

And I think those words have a common meaning.

Now, as to the specific objections if abstention is not applied to this case —

Byron R. White:

Well, what if he shows up in compliance with that order?

A. Seth Greenwald:

With the order?

Then of course, and this isn’t very, I shouldn’t say of course.

The judge would question —

Byron R. White:

Could the judge under the statute hold him in contempt no matter what he say?

A. Seth Greenwald:

Well —

Byron R. White:

If he didn’t give him a good excuse, could he hold him in contempt?

A. Seth Greenwald:

Yes, he could hold him in contempt and of course —

Byron R. White:

If you are not complying with the original subpoena.

A. Seth Greenwald:

Yes, he could and of course that holding of contempt could be reviewed on appeal.

I’m not here saying that my clients, the State Court judges made the correct decision because the correctness of their decision is to be reviewed on appeal if the person who is held in contempt objects to it.

But what I wish to emphasize is basics of this case is the claim of indigency the appellees claim they’re indigent.

And if any judgment debtor comes in to court in response to this order to show cause and says “I have no money, I am indigent.”

Then of course, then the judge would examine him a little further about that indigency.

As a matter of law, he would not be found in contempt and indeed —

John Paul Stevens:

But why not if he didn’t show up to the lawyers’ subpoena?

Indigence is no defense to failure to respond to process, is it?

A. Seth Greenwald:

But, I do wish to emphasize that the cases — the few cases and their (Inaudible) in the State of New York indicate that if at the show cause hearing, the judgment debtor shows that he is indigent, that he cannot you know — that in effect that he can not pay the judgment, that’s the end of the matter.

He’s not held in contempt.

John Paul Stevens:

Is it even if the lawyer had tried on 35 occasions to get him to respond to him subpoenaed at his office, and he just refused to come in and say “I’m not going to any lawyers office at all, and you can’t make me.”

Couldn’t the judge hold him in contempt for that even if he was indigent?

A. Seth Greenwald:

It’s conceivable, but what I wish to emphasize is —

John Paul Stevens:

But then — and then he is not a complete defense.

A. Seth Greenwald:

But I wish to emphasize that since the ultimate penalty here is a fine, and if the person cannot pay the fine, he can not be committed.

Then that’s the end of the subpoena and that is basically what happened in the New York Courts.

The problem in this case is not the lack of any Due Process, it’s the complete disregard of judicial process by the appellees and if there was any error in the action of the appellants — the State Court judges, that is to be reviewed on appeal by the State Courts with an appeal to this Court if the condemner so chose.

The point is you have no record here, and these statutes do provide Due Process.

Warren E. Burger:

Is the subpoena that was issued in the first instance here, structurally and procedurally the same kind of a subpoena that is issued to bring witnesses into Court for the purposes of testifying in a trial?

A. Seth Greenwald:

Yes, basically it is.

It tells the —

Warren E. Burger:

It just explains a different purpose.

A. Seth Greenwald:

Yes, it tells the person to come to a place to be examined in accordance with law.

Warren E. Burger:

Procedurally, you’re telling us that it is the same under the New York statutes?

A. Seth Greenwald:

Basically and if you disregard that subpoena you have contempt —

William J. Brennan, Jr.:

Well don’t some of your New York grand jury subpoenas require appearance in the office of an Assistant District Attorney rather than Court?

A. Seth Greenwald:

I believe they do have a procedure for making them returnable in their office.

I don’t think that’s — as I say, that’s not the issue in this case.

The issue in this case is the State Court procedures and decisions, and that’s where I think abstention should apply.

And I see, if I could take another minute that I say that the requirement of an actual hearing.

Well there was a hearing here.

It’s just the problem was the appellees didn’t come.

As to the actual presence, I think this Court has decided in Blackmer against United States that this type of actual presence is not required as long as person has received notice and the same type of notice was involved in Blackmer and he had the opportunity to appear as he did here.

Warren E. Burger:

I think you’ve covered that very well factually.

Ms. Bloom?

Jane E. Bloom:

Mr. Chief Justice and may it please the Court.

There are two essential issues in this case.

First, whether debtors who have disobeyed the subpoena issued by a creditors attorney, maybe jailed for up to 90 days.

Warren E. Burger:

Well, now you said issued.

Is that signed by clerk of the court, or authorized to the clerk of the court?

Jane E. Bloom:

No, it is not.

It was signed by the creditor’s attorney.

Warren E. Burger:

Now —

Jane E. Bloom:

Whether these —

Warren E. Burger:

Is the clerk of the Courts as you see it for Due Process purposes, a different kind of an officer of the court room, a lawyer who was admitted to the bar under New York law?

Jane E. Bloom:

Yes, he is.

Warren E. Burger:

Hasn’t the New York statute delegated to a lawyer who is attorney of record in a particular case, the authority to issue that subpoena?

Jane E. Bloom:

Yes, and I don’t question his authority to issue it, and I don’t question the fact that the debtors in this case disobeyed the subpoenas.

The question is, whether or not debtors maybe jailed for up to 90 days for disobeying the subpoena without ever appearing before a judge and without ever being advised of their right to counsel or assign counsel of indigent.

Thurgood Marshall:

He had an opportunity to pay up for a judge.

Jane E. Bloom:

That’s correct.

They did have an opportunity.

Thurgood Marshall:

Well, is the State supposed to give more than an opportunity?

Jane E. Bloom:

I would agree, Mr. Justice Marshall.

Thurgood Marshall:

Is that a catalog to bring him up and take him in?

Jane E. Bloom:

No, no.

I would contend that when an individual maybe jailed for up to 90 days that the person must be brought before the Court prior to incarceration.

I would agree that in the Due Process analysis, the —

Thurgood Marshall:

Well, suppose Judge Jones issues a subpoena to Sam Brown to appear in his Court tomorrow morning as a witness and the guy says “Well, he must be crazy.

I’m not going.”

Is anything necessary other than but a judge is to show cause order and put him in jail?

Jane E. Bloom:

No, but we have a different situation there.

Thurgood Marshall:

But didn’t he issue a cause order here?

Jane E. Bloom:

Yes, he did.

What I’d like to do is to clarify exactly what happened when that show cause order was issued.

And I would like to clarify the statutory procedure by outlining how the statutes operated with respect to Patrick Ward.

I would maintain that everything that happened to Patrick Ward was permitted under the statutes.

William H. Rehnquist:

Is he one of the named plaintiffs?

Jane E. Bloom:

He is one of the named plaintiffs, that’s correct.

I might add that Patrick Ward’s affidavit is verified and it is un-controverted.

The creditor’s attorneys never answered the complaint.

A default judgment was taken against Patrick Ward in city court in the City of Poughkeepsie for non-payment of a $125 medical bill.

The creditors’ attorney then issued a subpoena ordering Ward to appear for a disclosure deposition at the Court house.

The Court house was designated at the location not because a judge was involved in these proceedings, but because that was the requested location.

Jane E. Bloom:

Ward appeared as instructed.

When the attorney did not appear, a clerk instructed Ward to go the attorney’s office.

Ward went to the office and told the attorney that he would produce the information at the court house but not at the attorney’s office.

He essentially did not understand the purpose or meaning of the subpoena.

Based upon Ward’s refusal to provide this information, the creditor’s attorney instituted civil contempt proceedings to enforce compliance with the subpoena.

He served Ward with a notice of motion to hold him in contempt.

Now under 757 of the judiciary law, the proceedings maybe commenced by a show cause order or a warrant of attachment or by the creditor’s attorney issuing a notice of motion.

If we examine the show cause order which appears at page 12 of my brief and in 757, the order does not inform the debtor that failure to appear may result in incarceration or a fine.

It informs him at this point that failure to appear may result in a finding of contempt.

When Ward received the notice of this hearing, he contacted the creditor’s attorney and arranged to satisfy the judgment by paying $10.00 a week to the attorney.

He did not go to the Court hearing.

He was again under the mis-impression that he didn’t have to.

Three weeks later, Ward was laid off from his job and told the creditor’s attorney that he would not be able to continue making payments.

Three months later, Ward was served with the contempt order.

He was held in contempt for his failure to obey the subpoena, not —

William H. Rehnquist:

You say a contempt order at that point.

This is not an order to show cause, but it only actually is holding him in contempt?

Jane E. Bloom:

That’s correct.

Now, he was held in contempt for his failure to obey the subpoena not his failure to appear in Court.

Potter Stewart:

Now, the subpoena or the show cause order?

Jane E. Bloom:

For not obeying the subpoena.

Potter Stewart:

The original subpoena?

Jane E. Bloom:

The original subpoena.

Byron R. White:

Of course he didn’t obey it in the sense that if he went to the place of the deposition, he refused to testify.

Jane E. Bloom:

That’s correct, he did not obey it.

And he was held in contempt for refusing to obey the subpoena issued by the creditor’s attorney, not for failing to appear in court.

If —

Potter Stewart:

The original subpoena?

Jane E. Bloom:

That’s correct.

Potter Stewart:

Well, he had obeyed that.

Potter Stewart:

He showed up at the Court house, didn’t he?

Jane E. Bloom:

Well, he had not technically given the information.

He had appeared and gotten confused about the fact that the subpoena told him to go to the Courthouse, he was directed to go to the attorney’s office and he said “I’ll give you the information at the Courthouse.”

Potter Stewart:

Well, and that’s what the subpoena required him to do.

Jane E. Bloom:

Well, under New York law, the fact that he got further notice to go to the attorney’s office is sufficient, and he couldn’t be held in contempt.

Warren E. Burger:

Well as they adjourned the hearing or the appearance to another place.

Jane E. Bloom:

That’s correct, and under New York procedure —

Warren E. Burger:

Under New York law, do the same as though they adjourned it from the third floor of the Courthouse to the fifth floor.

Jane E. Bloom:

Exactly.

William H. Rehnquist:

Where does appeal lie from the County Court of the appellant here, the appellate division?

Jane E. Bloom:

The appellate term.

William H. Rehnquist:

Well, are you saying that it’s inconceivable that the appellate term if your client had appealed that citation, would not have found some violation of state law in citing under those circumstances?

Jane E. Bloom:

I am not suggesting that.

I am suggesting as we will see as these procedures follow that individuals maybe incarcerated who are on public assistance, or have other forms of exempt income before they realize that before they have an opportunity to appeal and that they suffer this kind of injury before they are aware of appellate procedures.

Secondly, since they do not have an attorney they may not know that they have these defenses and they may not use the procedures as they might otherwise.

William H. Rehnquist:

Well doesn’t the appellate term have authority to grant a stay if it held that the man was being incarcerated by the County Court wrongly?

Jane E. Bloom:

Yes they do.

Let me just respond to that and clarify what I’ve just said.

The procedure that Patrick Ward would have had to use to stop the proceedings against him, after the contempt order was issued, was to make a motion to vacate the contempt order.

He would’ve gone back before the County Court judge that issued initial contempt order, and he could’ve gotten a stay at that point.

Thurgood Marshall:

Well, don’t you think that the New York Courts could’ve given you relief without striking down the whole batch of statute?

Jane E. Bloom:

They might have, and that —

Thurgood Marshall:

And don’t you think they would have?

Jane E. Bloom:

They certainly might have, and we —

Thurgood Marshall:

By this action — everybody — there’s no more contempt in New York?

Jane E. Bloom:

Well, the Court still has an inherent contempt power and the only thing that they can’t do is to incarcerate individuals.

They can clearly fine them.

Thurgood Marshall:

Well, is contempt without the power of incarceration any good?

Jane E. Bloom:

I don’t question that the New York Courts —

Thurgood Marshall:

Do you think that all of these statutes are unconstitutional on their face?

Jane E. Bloom:

Yes, I do.

I think that statutes that put — the statutes that were declared unconstitutional, yes.

Thurgood Marshall:

We won’t settle for them being unconstitutional as applied to what class.

Jane E. Bloom:

If you want to clear that my constitutionals applied that would satisfy our interests.

I feel that whenever individuals are incarcerated, without an attorney and without ever appearing before a judge there is such a high risk that —

Thurgood Marshall:

Well, my case is that this man was subpoenaed by the judge to appear before him and he never showed up.

And the judge issued a bench warrant, and had him brought in.

That’s as legal as anything I know of.

Jane E. Bloom:

If that was the procedure —

Thurgood Marshall:

Is that right?

Jane E. Bloom:

No, if that was the procedure Mr. Chief Justice Marshall —

Thurgood Marshall:

You mean the Court can’t do that?

Jane E. Bloom:

If that was the procedure I would say that that comports with Due Process.

The problem that occurs —

Thurgood Marshall:

What I’m saying, you don’t find anything wrong with that do you?

Jane E. Bloom:

If the person is was advised by his attorney —

Thurgood Marshall:

He is incarcerated without ever seeing a judge.

Jane E. Bloom:

Alright, I misunderstood your question.

If the individual is — if the judge issues a bench warrant, generally the individual is brought before the Court.

Thurgood Marshall:

No, he issued a subpoena and the man ignored the subpoena without ever seeing a judge, he ignored it and without seeing a judge, the judge issued a bench warrant and put him into cool and they’ll do it every day and there’s nothing I know of illegal about it.

You get say hearing then, yes you got to show cause here.

But the bench warrant, they’ll pick you up wherever you are.

Jane E. Bloom:

They are two different situations in this case though.

First of all is, the proceedings indicate the individual is never held in contempt for willfully disobeying a Court order.

There was never any finding that the individual willfully failed to appear at the show cause hearing, or willfully failed to pay the fine.

The statutes indicate that an individual can be incarcerated if he neglects or refuses to pay the fund.

Thurgood Marshall:

But that is just the case that drawn here.

The Court wrote on that they didn’t say — as I understand on page 2 (a), they say just to the opposite don’t they?

Jane E. Bloom:

No, if we look at the statutes —

Thurgood Marshall:

The order’s Court, the Court will make a final order directing that he be punished if he doesn’t return.

Thurgood Marshall:

All right?

Jane E. Bloom:

You are in 2 (a) of the decision?

Thurgood Marshall:

Opinion, I mean once —

William H. Rehnquist:

Jurisdictional statement.

Thurgood Marshall:

Once the Court issues the show cause order, doesn’t he have an opportunity to go in Court to show anything under the sun that would convince the Court not to put him in jail?

Jane E. Bloom:

Yes, he does.

And I would contend that if we were talking about property that an opportunity for hearing would be enough.

I would maintain that since we are talking about depriving an individual of liberty that more Due Process must attach.

Potter Stewart:

You never finished telling us the sad story of Mr. Ward, because we interrupted you.

I’d be interested in the data more–

Jane E. Bloom:

Let me return to that.

Okay.

Three months later Ward was served with a contempt order.

Ward was held in contempt for his failure to obey the subpoena and not his failure to obey the — or appear in response to the show cause order.

Potter Stewart:

Now, was that authorized by the statute or was that clerical error?

Jane E. Bloom:

Correct, that was authorized by the statute.

The statute — it’s in the defining order.

According to 770, the Court issued the order based upon a creditor’s affidavit indicating that Ward willfully disobeyed the subpoena and that this impaired the creditor’s rights.

The contempt order directed Ward to pay $250.00 plus Court cost to the creditor within 30 days or face incarceration.

Now under 773 of the statutes, as the creditor chose not to prove that he had suffered any loss, the Court imposed the fine of $250.00 plus cost, even though the underlying judgment was $146.00 and the creditor received the entire $250.00 plus cost, plus attorney’s fees.

When Ward received this order, his income —

Warren E. Burger:

Since you recite that, do you suggest there was something wrong with that?

Jane E. Bloom:

Yes, I do.

I would suggest that a civil contempt fine can be either compensatory or coercive and that a fine of this type is not compensatory because it is not related to the underlying judgment.

It is also not coercive because the individual is fined until he — he is jailed until he pays the fine.

He is not jailed until he provides the information.

Warren E. Burger:

Now, you’re saying that the additional cost cannot be allowed to the judgment creditor —

Jane E. Bloom:

No.

Warren E. Burger:

— and he is contend to take these extra steps?

Jane E. Bloom:

No, the judgment creditor under the statute is entitled to $250.00 without proving that he suffered any loss, meaning —

Potter Stewart:

But that’s credited against the debt, isn’t it?

Jane E. Bloom:

Well, if the underlying debt is $10.00, he can still get $250.00 and keep it.

He is then entitled to cost above that, and entitled to attorney’s fees above that.

The fine is not coercive, because the individual who remained in jail until the fine is paid, the individual doesn’t remain in jail until he provides the information.

Potter Stewart:

You haven’t quite finished Mr. Ward’s story yet.

Jane E. Bloom:

I will finish.

When Ward received the contempt order, his income consisted of $61.00 a week on an employment insurance benefit with $30.00 of that going to his ex-wife pursuant to a New York family court support order.

The instant action prevented the proceedings from going any further with respect to Ward.

When other debtors failed to pay the contempt fine, the court issued a warrant of commitment based again on a creditor’s affidavit —

Potter Stewart:

Have you finished with the Ward story?

Jane E. Bloom:

Yes, I am.

Potter Stewart:

What happened to him then, ultimately?

Jane E. Bloom:

Ultimately, a temporary restraining order was issued by Federal Court and he was not incarcerated.

Thurgood Marshall:

Before you leave Ward, what about on May he was served with a notice of motion for order finding defendant in contempt of Court and ordering him to appear in Dutchess County Court.

Jane E. Bloom:

That’s correct, and as —

Thurgood Marshall:

Was that a valid order?

Jane E. Bloom:

That was a valid order.

Thurgood Marshall:

And he disobeyed it.

Jane E. Bloom:

Well, as I indicated —

Thurgood Marshall:

Well, wait a minute.

Let me read what he said in his affidavit.

“I did not appear.”

That’s what he says in his affidavit.

Jane E. Bloom:

That’s correct, he —

Thurgood Marshall:

So he disobeyed the order.

Jane E. Bloom:

That’s correct.

He went to the attorney’s office —

Thurgood Marshall:

And he solely got punished for it.

Jane E. Bloom:

— and he went to the attorney’s office and told the attorney that he would pay $10.00 a week, and failed to appear.

Thurgood Marshall:

That’s number 11.

Thurgood Marshall:

Number 10 it says, “I did not appear.”

In number 11, it says “In May I contacted Mr. Grant.”

Those are two separate statements.

Jane E. Bloom:

Well, what happened in essence was that he did not appear at the required hearings.

However he contacted the creditor’s attorney and tried to explain and tried to explain what happened.

Warren E. Burger:

Later, though there was this time span, wasn’t it?

Jane E. Bloom:

That’s right, that’s right.

What he did amounts to civil contempt.

I am not questioning that.

I am questioning the procedures that were used to fine and possibly incarcerate him as a punishment for civil contempt.

Lewis F. Powell, Jr.:

Ms. Bloom, in your recital of Mr. Ward’s tribulations, you mentioned the fact that he was subject to a support order.

What is the procedure in New York if he had ignored that in the same way that he ignored the other order?

Jane E. Bloom:

If he had ignored a support order and the support order was issued by a New York Family Court Judge, he would have had — and if he did not appear at an initial show cause hearing, the Court would physically bring him before the Family Court, and ask him —

Lewis F. Powell, Jr.:

How is that accomplished?

Jane E. Bloom:

They issue what’s called a writ of attachment, and the Sheriff goes out, picks up the person and brings him before the Court.

And a hearing would have been held at that time to determine why he didn’t pay the support order.

He also would’ve been provided with — he would have been informed of his right to counsel and he would’ve been informed that he had a right to assigned counsel, if he was indigent.

Lewis F. Powell, Jr.:

That same procedure followed in the divorce case where alimony is ordered?

Jane E. Bloom:

It is followed only in support actions and Family Court.

The irony of the situation is that a creditor or an attorney in the support and alimony situation has the option of either using the Family Court procedures which provide the procedural safeguards that we’re asking for here or the procedures in the judiciary law which provide none of those procedural safeguards.

Lewis F. Powell, Jr.:

But if the divorce was in an ordinary Court not the Family Court, what are the procedures with respect to alimony?

Jane E. Bloom:

Well, the procedures would be those found in the judiciary law in the challenge sections of the civil contempt statutes.

Lewis F. Powell, Jr.:

The judgment in this case would invalidate that procedure as well as with respect that it was.

Jane E. Bloom:

Yes, it would.

William H. Rehnquist:

Have you ever heard of a law that’s been struck down by this Court on its face outside of the First Amendment area?

Jane E. Bloom:

I believe that a law like this can be struck down on its face because the statutory procedures that operated with the respect to the plaintiffs in this case were permitted under the statute.

William H. Rehnquist:

Well, but then it’s on as applied basis in the case of these particular plaintiffs even if your right on the merits, isn’t it?

Jane E. Bloom:

I believe that he District Court could have held these statutes unconstitutional as applied to these plaintiffs or unconstitutional on their face.

Potter Stewart:

Well, these plaintiffs are whole class of people by the law, aren’t they?

Jane E. Bloom:

Yes, they are.

Potter Stewart:

So, if you strike it down as applied to these plaintiffs, you’re striking down the whole law as applied to anybody to whom it applies —

Jane E. Bloom:

I would say that a statutory procedure that permits people to end up in jail without ever seeing a judge or an attorney can be declared unconstitutional on its face.

There is no way that you can read it to make it constitutional.

Potter Stewart:

Even in the area of criminal law for person.

If a defendant in a criminal case voluntarily absents himself at a trial he can still be convicted and sentenced to prison —

Jane E. Bloom:

That’s correct.

Potter Stewart:

— misdemeanor case.

Jane E. Bloom:

But the essential difference there is that that person has a right to an attorney and that attorney will explain to him the consequences that will result.

Potter Stewart:

Now you’re shifting the ground.

Up to now it was of he didn’t get a hearing, but he was given an opportunity for a hearing.

Jane E. Bloom:

That’s correct.

Potter Stewart:

And it was that his — that he didn’t get a hearing, and the same thing in a criminal trial.

If you voluntarily absent yourself after the trial begins you can still be convicted.

You have the opportunity to be there, but that’s all the state need accord you.

Even in the context of a criminal conviction.

Warren E. Burger:

At anytime, when you come in to a Court and asked for the appointment of a lawyer on the basis of his indecency in order to protect himself?

Jane E. Bloom:

One plaintiff did, Rabasco.

He went into —

Warren E. Burger:

But, I’m talking about —

Jane E. Bloom:

In this case.

Warren E. Burger:

— to stay on the same man.

Jane E. Bloom:

This individual did not.

Another plaintiff did, and he was told by — as a matter of fact he did it in a support in alimony situation.

He was told that there was no right to assign counsel.

His affidavit is also un-controverted.

The defendants in the lower court did not answer or respond to his affidavit.

William H. Rehnquist:

Well, was there anything wrong or were there have been any short comings in any possible state remedies or adjudications with respect to your constitutional issues?

In short, could you have raised them in the State Court and have them adjudicated?

Jane E. Bloom:

We could have raised these constitutional issues in State Court.

We felt with respect to Patrick Ward.

Jane E. Bloom:

With respect to individuals such as Harry Vail, we could have appealed on his behalf.

The problem in his case though is that we maintain that he suffered too much injury by the time he got to the appellate level.

He was incarcerated and his entire income was exempt from the execution.

He could’ve appealed to get that money back, there would be no way —

Potter Stewart:

At some point in that process, he could’ve got a hold of a lawyer earlier.

He could’ve raised all the questions he wanted to in the State Court.

Jane E. Bloom:

If he had counsel he could have, that’s correct.

Potter Stewart:

Or if he had known nothing or he had known enough himself.

Now, you seem to treat these proceedings a lot like a criminal case in terms of what procedures might be required, presence and counsel and things like that.

And yet you say it shouldn’t be treated as a criminal case or even quasi criminal case for the purposes of Younger abstention.

Jane E. Bloom:

That’s correct.

I am treating them not as a criminal case for the Due Process protections that I believe are required here but a case in which an individual is deprived of liberty and that can occur in many civil contexts.

It can occur in civil commitment context and others.

And I believe that for Due Process reasons that an individual must be assigned a lawyer and must appear before a judge before that individual can be incarcerated for —

Warren E. Burger:

No matter how many times he refuses to show up?

Jane E. Bloom:

Yes, I believe that he doesn’t need to be given ten opportunities to show up.

What needs to happen is to have him physically brought before the Court as in the New York Family Court procedure.

So that a Court can make a reasoned determination as to whether or not this person belongs in jail.

Byron R. White:

But when you’re talking about vindicating the authority of a State Court and you’re pretty close to the core of the state interest in this judicial process statute.

It’s not just enjoining some case.

This is keeping a Court from protecting its own authority.

Jane E. Bloom:

Well, what happened here — first of all I think that the statutes must be viewed as purely civil statutes.(B) —

Byron R. White:

Well, I know you’d say that I don’t blame you.

Jane E. Bloom:

The statute says that, they play no part in criminal law enforcement.

Byron R. White:

Well, Huffman, his pursue wasn’t it strictly a criminal case, was it?

Jane E. Bloom:

No, it wasn’t but the statutes in that case were used in aid of criminal statutes and the essential difference is that the proceedings were initiated by the state.

In this case, we have private individuals initiating proceedings and there is —

William H. Rehnquist:

Well, don’t you think the state has just as great an interest in seeing the authority that’s Courts vindicated as it does in pursuing a quasi-criminal remedy on an obscenity case?

Jane E. Bloom:

I believe that there is an essential difference.

I believe that we first have to look at what it is that individuals are held in contempt for.

Jane E. Bloom:

They are not being held in contempt as would be the case in a criminal contempt proceeding for willfully disobeying a Court order.

They’re being held in contempt for willfully disobeying a subpoena issued by a creditor’s attorney.

There is a —

Byron R. White:

Yes, but they – the defendant cannot be held in contempt until they further disregard, a show cause order.

It maybe we held in contempt even if he comes to Court in response to that show cause order, but he cannot be held in contempt without disobeying that order.

I mean, at least he cannot be held in contempt without that order having issued by the judge.

Jane E. Bloom:

Correct.

However, the order — the ultimate contempt order holds an individual in contempt not for intentionally disobeying that Court order.

The standard is one of neglect or refusal.

If an individual breaks a leg on his way to the Courthouse and doesn’t appear for the show cause hearing, he has neglected to obey that Court order.

And if he intentionally disobeyed the subpoena, a contempt order could properly issue.

Going back to Mr. Justice —

Warren E. Burger:

Well, — but if he at some point showed that a Court that he broke his leg on the way, you don’t suggest that any Court would hold him in contempt for not appearing?

Jane E. Bloom:

He could be held in contempt in his absence, that is my point and because he has been held —

Warren E. Burger:

Do you think that would corrected as soon as it was shown that he broke his leg on the way to the Courthouse.

Jane E. Bloom:

Correct.

However, my point is that that may not happen until the individual was sent in jail for 90 days.

Thurgood Marshall:

Getting back to my Brother Rehnquist’s original question.

Isn’t it strange that in a private case involving money etcetera, etcetera, etcetera, it’s necessary to knock down seven state statutes in order to give relief to eight people.

Do you know of any case like that?

Jane E. Bloom:

Well, this is a statutory scheme.

There could be up to 15 statutes.

The number wouldn’t make any difference —

Thurgood Marshall:

I mean, what interest do these people have other than their own rights.

They don’t have any rights of the rest of the people in the State of New York, do they?

Jane E. Bloom:

Well, they are representative of a class of individuals who are subjected to these statutes.

Thurgood Marshall:

Which is obverse and all they need is a relief for that class.

Jane E. Bloom:

That’s correct.

Thurgood Marshall:

And they don’t need the relief for all of the other people in other situations governed by the same statutes.

Jane E. Bloom:

You —

Thurgood Marshall:

So where does the interest come to this Court that in order to protect these people we have to knock down the whole world.

In order to do “justice to these people.”

Jane E. Bloom:

As I said earlier, these people’s interests would be satisfied if these statutes were declared unconstitutional as applied or on their face.

Byron R. White:

Ms. Bloom, would you tell me, you have covered so much now.

What do you think is the most objectionable feature in this statutory scheme as a matter of constitutional law assuming that these people actually were in contempt of –properly found in contempt pursuant to the statute.

Is it the possibility of 90 day sentence?

Thurgood Marshall:

No, there are two essential violations.

The most essential violation is that they have been incarcerated without having the assistance of counsel.

It’s significant that in the federal system, every Federal Circuit that has examined this problem has found a right to assigned counsel in civil contempt proceedings.

Most —

Byron R. White:

At what point would you say the assignment of counsel should take place, before the arrest or after they’re brought into jail?

Jane E. Bloom:

I believe that the statutory procedure could work as follows, and I will insert when —

John Paul Stevens:

I mean, I shouldn’t have said what do you think.

What do you think the constitution commands in this regard?

Jane E. Bloom:

I believe that if the creditor is making an application for contempt that may involve incarceration that counsel must be assigned.

When the individual is physically brought before the Court by a writ of attachment, which I described and it appears that the individual is going to further disobey the subpoena, and may face incarceration.

John Paul Stevens:

Is this critical in this development that the Court know that the man is indigent or not?

Supposing he is a Harvard graduate and a millionaire, would we make the same argument?

Jane E. Bloom:

That individual should be advised of his right to obtain counsel.

John Paul Stevens:

How do you advise him if he doesn’t show up?

Is this the defect in the form of a notice?

Jane E. Bloom:

No, I believe that what needs to happen is this.

The show cause order must be issued informing the person that they may be arrested if they don’t appear.

If the person —

John Paul Stevens:

Well, the show cause says he may be punished.

Jane E. Bloom:

Right, doesn’t say you may be incarcerated.

John Paul Stevens:

But as a Harvard graduate would probably figure that out.

Jane E. Bloom:

Let’s assume so.[Laughter]

The individual must then be brought before the Court by writ of attachment, physically brought into Court.

John Paul Stevens:

He maybe taken into custody before counsel is appointed then.

Jane E. Bloom:

He must be assigned counsel when he is physically brought before the Court, and —

John Paul Stevens:

Even though you don’t know whether he’s indigent or not?

Jane E. Bloom:

No, I’m sorry.

He must be assigned counsel after the determination has been made that he is indigent, but he must be advised of his right —

John Paul Stevens:

And how can you make that determination till you get him before the Court?

Jane E. Bloom:

It can’t be done and I don’t suggest that it needs to be.

I’m suggesting that the assignment of counsel or the advising of an individual of his right to assign counsel must occur when the writ of attachment — after the writ of attachment has issued and the individual is physically before the judge.

John Paul Stevens:

And he says “I’m indigent.”

Now, he doesn’t really need a lawyer, because the judge is going to turn him free.

Jane E. Bloom:

Well, unless the creditor has further need for information that —

John Paul Stevens:

Seems to me that the need for counsel vanishes at the same time that it arises.

Jane E. Bloom:

Not necessarily.

I’ve enumerated in my brief a listing of perhaps 10 defenses that can be raised to a civil contempt action.

And these are all complicated defenses that one would need an attorney to assert.

Potter Stewart:

But Ms. Bloom, the only way you get a lawyer appointed for you is because you’re indigent.

Jane E. Bloom:

That’s correct.

Potter Stewart:

And if you’re indigent, you have a complete defense.

Jane E. Bloom:

Not necessarily.

Warren E. Burger:

You don’t need these other ten defenses now.

Potter Stewart:

You don’t need any of these other defenses.

Jane E. Bloom:

Not necessarily.

Potter Stewart:

And by indigency do you become eligible for the appointment of a lawyer.

Jane E. Bloom:

You might not which would show that in many cases, the appointment of a lawyer is not going to be needed, but it will also ensure that the individual who does not need the appointment of a lawyer is advised that he has a right to a lawyer.

In these defenses, particularly in the support and alimony area, defenses as such as the divorce decree was a foreign decree.

The divorce decree is ambiguous.

These are the kinds of things that maybe raised which I —

Thurgood Marshall:

Which are not before us?

Jane E. Bloom:

Well, these are — there was a support and alimony individual in Rabasco and he might have been able to assert some of these defenses to the proceeding.

Lewis F. Powell, Jr.:

Ms. Bloom, I’m afraid we haven’t given you much of an opportunity to make your own arguments, but may I ask you one other question?

Jane E. Bloom:

Sure.

Lewis F. Powell, Jr.:

I’m interested in the effect of the order.

Assume for the moment that we affirm the decision of the District Court, the order applies to all persons that in the limitation as to time who have been subjected to this procedure in the past to go back to 1906, I suppose if anybody is still alive.

What remedy would they have in a practical matter?

Jane E. Bloom:

Well, I read the order differently.

I read the order in light of the opinion.

The opinion clearly states that the Court has enjoined further application of these statutes.

And I believe that very clearly means that it does not have retroactive effect.

Lewis F. Powell, Jr.:

That is not what the orders says, isn’t it?

Jane E. Bloom:

No, it is not, but I believe that it can only logically be read in light of the decision.

Warren E. Burger:

Thank you Ms. Bloom.

Thank you counsel.

The case is submitted.