Lurk v. United States – Oral Argument – May 04, 1961

Media for Lurk v. United States

Audio Transcription for Oral Argument – May 05, 1961 in Lurk v. United States

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Earl Warren:

Number 669, Benny Lurk, Petitioner, versus United States.

Mr. Gressman.

Eugene Gressman:

Mr. Chief Justice, may it please the Court.

This case comes here on a writ of certiorari directed to the Court of Appeals for the District of Columbia Circuit.

And it raises an important and a somewhat baffling question of judicial administration, a criminal appellate justice particularly with reference to the right of indigent defendants to carry forward their appeals in forma pauperis in the Court of Appeals.

And in order to appreciate the problem as it has unfolded in this case, I think it well to describe very briefly the procedural course which this case has taken from the time of the trial up to the Supreme Court.

Now, the petitioner, Benny Lurk was tried and convicted in the District Court for the District of Columbia for the crime of robbery.

A felony is defined in the District of Columbia Court.

During the trial, he was represented by a court-appointed attorney who, after the trial and after the sentence of judgment of conviction had been entered, withdrew from the case with the approval of the trial court.

The petitioner, thereupon, filed with the trial court an application for leave to appeal in forma pauperis from the conviction.

The trial judge denied that application with the notation that the appeal was not taken in good faith and that it was frivolous.

Petitioner, thereafter, filed another application, this time in the Court of Appeals in which he requested leave to file an appeal in forma pauperis and made certain allegations of a very summering nature as to certain errors which allegedly had occurred during the trial.

It was at that point that the Court of Appeals appointed me to represent this petitioner and directed me to file a memorandum in support of the petition which had been filed pro se.

My preliminary examination of the matter, of course, was limited by the fact that I had no knowledge whatever — what had occurred at the trial and a trial transcript not being available.

I was confined to determining as best I could from available persons, namely, the petitioner and his trial counsel what had happened at the trial.

As a result of that examination, I was convinced that I could not conscientiously represent the petitioner and report back to the Court as to whether or not there was any basis for this appeal, as to whether or not there were any non-frivolous or reviewable issues which would entitle this petitioner to pursue his appeal in forma pauperis.

Furthermore, I was not convinced that — nor could I represent to the Court of Appeals that I was convinced that the trial had been completely free of all possible reversible or prejudicial errors in the trial.

Therefore, I made a motion on behalf of the petitioner to have the transcript of the trial produced at the expense of the Government.

And over the objection of the United States, that motion was granted and a transcript of the trial proceedings was furnished at the expense of the United States.

Thereupon, I was able to determine whether or not, in my mind, there was any basis for pursuing this appeal.

And in so attempting to present the position on behalf of the petitioner to the Court of Appeals, I felt it was obligatory on me to try to follow the standards of appeal in forma pauperis which had been set forth by this Court unanimously in Ellis against the United States in 356 United States.

Now, very briefly that case held that the standard for determining whether to grant or deny a petition for leave to appeal in forma pauperis depends upon the good faith of the petitioner and the — under Section 1915 (a) of Title 28 U.S.C. and that that good faith is to be determined in — by virtue of whether or not there is a non-frivolous issue presented.

And the Court was very decisive in spelling out the fact that if any non-frivolous issue is presented, the petition for leave to appeal in forma pauperis must be granted.

John M. Harlan II:

How long were the stenographic minutes of the trial Mr. Gressman?

Eugene Gressman:

I believe about 100 pages or so.

It’s on file with the clerk’s office.

It was the only copy produced and I do not have at present with me at this point.

Mr. Davis tells me it was 75 pages.

I don’t think the trial lasted more than a couple of hours if that long.

Now, the Court in the Ellis case was also careful to point out that in determining what is non-frivolous, the Court of Appeals should not convert the standard of non-frivolousness into a requirement of any — showing of any particular degree of merit.

Eugene Gressman:

So based upon those propositions, I attempted to present to the Court of Appeals two issues which I conceived to be non-frivolous in nature.

Charles E. Whittaker:

Mr. Gressman, did I understand you to say that the District Judge made the 1915 certificate that the appeal was not taken in good faith?

Eugene Gressman:

Yes, Your Honor, he did.

Charles E. Whittaker:

He did.

Eugene Gressman:

But that — it hasn’t — I might point out that this Court has held in prior case that that type of certificate is subject to review and overruling an effect by the Court of Appeals.

And the procedure has developed, and I assume generally although at least here in the District of Columbia that you can file a de novo application for leave to appeal in the Court of Appeals which in effect six-reversal of that district judge’s certification.

Potter Stewart:

That’s what was done here Mr. Gressman?

Eugene Gressman:

Yes, it was.

It was an independent new application —

Potter Stewart:

De novo application for leave (Voice Overlap) —

Eugene Gressman:

That’s right.

Potter Stewart:

— in forma pauperis rather than an appeal from a denial or —

Eugene Gressman:

That’s right, Your Honor and that application before the Court of Appeals appears at page 8 of the record which is if you will see signed by the petitioner himself.

I assume that somebody helped him draw that up but, at least he did not have any counsel or record at the point of doing that.

Now, the two non-frivolous issues I sought to raise involved, as I say, were two in nature.One of which, the first of which grew out of the — of my examination of the trial transcript and it was the only way in which I could have discovered that such an issue possibly existed that warranted review.

That issue, of course, involved four or five references in the course of the trial to the fact that the complaining witness and Benny Lurk, at one time, served time together in the Occoquan Workhouse.

And I submitted that in as much as the petitioner had never taken the stand, that this might well present a very serious question is to whether or not these references to the petitioner’s prior criminal incarceration might not have unduly prejudice to jury and then it also involved, was the issue as to whether or not the trial judge in light of those various references had taken adequate precautions at the time the various references were made and in his final instructions to the jury.

And in light of cases which I cited in a memorandum to the Court of Appeals, I felt that these were — these were at least non-frivolous issues and that the issues were also present as to whether or not the failure of appointed counsel to take an exception to what the judge had done, was cons — was allowed this issue to be perpetuated under the plain error rule so as to be reviewable by the Court of Appeals.

All of those things I submitted were implicit in these facts growing out of the record and I felt presented a bona fide, a good faith a non-frivolous issue.

The other issue I raised, and this of course did not in anyway depend upon the availability of the trial transcript since it was obvious as of the record in the District Court was the growing out of the fact that the presiding judge at the trial, the judge who entered the judgement of conviction was Judge Joseph R. Jackson, a retired judge of the Court of Customs and Patent Appeals who was assigned or designated to seat on the District Court for the year 1960 pursuant to the assignment statute 294 (d) of Title 28.

Now, the — those were the issues presented and I submit that they were non-frivolous within any meaning of the Ellis standard.

Now, comes the interesting part insofar as the development of this case in light of the Ellis standards.

The Government, of course, filed a two page opposition to this memorandum in which no mention whatsoever was made of the Ellis case.

No denial was made that either issue was frivolous in nature or the leave to appeal should be denied under Section 1915 because they did not meet the standards of that Section as interpreted in the Ellis case, instead, the United States argued in lawyer like terms and illegitimate legal argument that neither issue had any merit that I was wrong in both the first issue as to the prior criminal record references and that moreover, Judge Jackson did have the right to sit on this Court by assignments and that there was nothing to the constitutional issue as I had presented it.

But I emphasized the important point, and this I put forth in a reply memorandum that we are not under the Ellis case at this point in an in forma pauperis appeal dealing with the merits or the ultimate substance of either issue.

The only question opened at this juncture of an in forma pauperis appeal is whether or not there had been presented on behalf of the petitioner any non-frivolous issue.

Potter Stewart:

Is this cumbersome two-step procedure that you’ve been describing the ordinary way of doing business here?

Eugene Gressman:

Yes, it is Your Honor.

I’ve been appointed to a number of these cases.

I have observed any number of other instances of counsels who had been appointed in this exact type of situation, and I assume you referred to it by two-step to the business.

Potter Stewart:

Well, I’m referring to this based on my own experience, as a Circuit Judge in the Sixth Circuit, after we — in that Court, begins in the Johnson case and (Inaudible) case, if I have the right names in mind.

Eugene Gressman:

Yes.

Potter Stewart:

Perhaps a little — a little less subtlety, but it seems to me, with a good deal of more practicality, whenever application to appeal in forma pauperis would come along regardless of what the District Court had done, we simply granted it and set it down for argument on the merits on appointed counsel.

Eugene Gressman:

Well, I think that has a great deal of merits to it and it would resolve a great deal of the problems that now exist here in this Circuit here.

Potter Stewart:

Say — and really you save time in (Voice Overlap) —

Eugene Gressman:

That is exactly right.

I maintain that if the — if the Government had simply conceded that these were non-frivolous issues, we would have had this case briefed, argued and decided by the Court of Appeals four, five, six months ago.

Potter Stewart:

And then after argument, if you decide the appeal is frivolous, you can then (Voice Overlap) —

Eugene Gressman:

That is right.

It would be opened at anytime for the Government to move to dismiss an appeal as frivolous or to summerly affirm at anytime.

But under Section 1915 and as interpreted in the Ellis case, I don’t believe that we can — that the Court of Appeals had justified in making a summary affirmance or disposition.

Felix Frankfurter:

What is the volume — what is the volume of such appeals in this District?

Eugene Gressman:

Well, that, I’ve tried to set forth in my brief during the past year according to the statistics from the clerk’s office of the Court of Appeals.

I’ve set those forth at page 23 of my brief, main brief.

Felix Frankfurter:

Just what — give me please, would you mind?

Eugene Gressman:

Yes.

During the 1960 fiscal year and that was from July 1, 1959 to June 30, 1960, there were approximately 43 in forma pauperis petitions were filed seeking to appeal directly from criminal convictions.

Now, those were original applications in the Court of Appeals were appeal had presumably been denied by the District Court.

And therefore, they came to the Court of Appeals as they did in — as petitioner here did.

Felix Frankfurter:

Has any of them come up on appeals from the refusal of the certificate?

Eugene Gressman:

I am not aware that — that that practice has developed in this Circuit.

I believe that if these prisoners who do this on their own and that usually is the case, let’s get their advice from the clerk’s office or from someone that the proper way to proceed in the District of Columbia Circuit is to file a new de novo application in the Court of Appeals.

So, you do not —

Felix Frankfurter:

Have you provided figures, that is, in comparison between the volume of business in the District and other circuits?

Eugene Gressman:

I don’t have those — a case that — as to those statistics collected except that I am certain that by virtue of the fact that the District of Columbia criminal jurisdiction is so much wider than any other circuit, that there are many more applications here than there are in any other circuit.

Felix Frankfurter:

I should be surprised if that weren’t so.

Is it not relevant to the difference in procedures?

Eugene Gressman:

It — it may well be that there are —

Felix Frankfurter:

It is the course of it, isn’t it?

Eugene Gressman:

Pardon?

Felix Frankfurter:

It is probably the course of it.

Eugene Gressman:

Well —

Potter Stewart:

Except if I’m correct that the procedure I suggested saved the time of everybody than it would save even more time in the District of Columbia if there are more (Voice Overlap) —

Eugene Gressman:

I wouldn’t think so.

I don’t think that — that the —

Felix Frankfurter:

Let’s see about saving time, how much time is there for argument, oral argument?

Charles E. Whittaker:

Mr. Gressman —

Felix Frankfurter:

How much time is there for oral argument?

Eugene Gressman:

In the — in the —

Felix Frankfurter:

If — if the case is taking on appeal automatically, an oral argument is heard, how much time is involved in hearing oral argument?

Let’s hear about the saving time.

Eugene Gressman:

Well, the — in the ordinary criminal case, unless you get an extension of time, there’ll be a half hour allowed on each side.

Felix Frankfurter:

Well, that’s an hour.

Eugene Gressman:

An hour of oral argument.

Felix Frankfurter:

43 — at 43 hours.

Eugene Gressman:

And there would be presumably the time spent in preparing this initial memoranda and the opposition —

Felix Frankfurter:

That isn’t the Court’s time.

That isn’t the Court time.

Eugene Gressman:

That’s not the Court’s time granted but it is counsel’s time when —

Felix Frankfurter:

I know, but I’m talking about the Court’s time and —

Eugene Gressman:

Well —

Felix Frankfurter:

— the pressure on the Court, the burden of oral argument on the Court.

Eugene Gressman:

The — at the same time, the — the Court has to take a good deal of time, I presume, in determining these motions to which come up to it.

I don’t know how much it — it’s indeterminate amount of time.

Felix Frankfurter:

That would be in addition to the time taking on oral argument.

Eugene Gressman:

Well, except that the way we — the way under the present procedure.

Felix Frankfurter:

I’m not — I’m not reaching a conclusion.

Eugene Gressman:

That’s true.

Felix Frankfurter:

I’m simply delving into the fact to show that appellate procedure is dependent on the circumstances before a court.

Eugene Gressman:

That is true, Your Honor.

Eugene Gressman:

And — and certainly, you have to weigh the amount of time you — you point out as to oral argument against the time spent by the Court setting as emotions court as it does in these preliminary matters going over this memoranda.

Felix Frankfurter:

Does it — does it hear these motions orally?

Eugene Gressman:

There is no oral argument generally speaking on these motions.

Felix Frankfurter:

But there is no time in the procedure, in the current procedure you sketch it of the District.

There is no time drawn on the Court’s time for hearing unless they grant the — unless they in effect overrule what the District Court (Voice Overlap) —

Eugene Gressman:

In — in terms of oral — in terms of oral argument, that is correct.

Felix Frankfurter:

And if you compare that with the situations through out the country, you’ve got a very different situation.

Eugene Gressman:

Well, I will concede and — and the fact it’s — it’s —

Felix Frankfurter:

Well, now a conclusion that — to be —

Eugene Gressman:

It — it’s —

Felix Frankfurter:

— found on it but you can’t compare unequals.

That’s all I’m suggesting.

William J. Brennan, Jr.:

Mr. Gressman.

Eugene Gressman:

Yes.

William J. Brennan, Jr.:

Have — have I seen some of these denials of appeals as frivolous in which dissents is many as two or three of the Court of Appeals of the Court’s dissents?

Eugene Gressman:

Yes.

And in matter of fact, some of these cases where there have been complicated issues raised or — or some important issue of law involved, they have a filed petitions for rehearing en banc.

And the Court has on a number of occasions granted rehearing en banc and then some of those, they — they may have granted oral argument even, I’m not certain about that.

But I have not been involved or aware directly of any case which oral argument was granted except that I do know that they have frequently taken the time and energy of the entire court in considering these papers and memoranda.

Charles E. Whittaker:

Aren’t we getting pretty far field or what — whether it would be economical of time and effort, Congress could deal with this matter as it wish than it has dealt on it, hasn’t it, in Section 1915?

Eugene Gressman:

Yes.

I think Congress is — has indicated what the procedure would be in the —

Charles E. Whittaker:

No, it’s more than in accuse that it said plainly in1915, hasn’t it?

Eugene Gressman:

It says that they shall be granted if they have presented in good faith.

And in the Ellis case, interpreting Section 1915, spells that out even further and says that the petition must be granted if a non-previllous issue is presented.

Felix Frankfurter:

That it said that they must be automatically.

Charles E. Whittaker:

No.

Eugene Gressman:

Well, that assumes that if it is non-frivolous, it must be granted.

Felix Frankfurter:

But the court’s judges did forma pauperis to what is privilege.

Eugene Gressman:

Well, that is in entirely true of course but, once that determination has been reached, it then does not become the function of the Court just to — to decide whether we would like to take this case or not or whether it would be determined — involved a great deal of our time as the Government here suggest.

Eugene Gressman:

It certainly is not the equivalent of this Court’s certiorari jurisdiction.

Felix Frankfurter:

Of course it could be Court of Appeals if they chose — curtail oral arguments in an appropriate class of cases?

Could that be a denial of due process or equal protection considering the fact that most state courts haven’t got oral argument?

Eugene Gressman:

Well, I think that as long as you grant oral argument to any class of cases, there has — would have to be some extremely overriding reason for curtailing that as to any other class.

Felix Frankfurter:

But cases unfungible goods, questions that arise in cases aren’t the same.

Eugene Gressman:

Certainly.

But the Court of Appeals here and I think most Courts of Appeals have a specified time limits for oral argument, which are applicable in all cases.

Felix Frankfurter:

My question was whether they could make a new classification —

Eugene Gressman:

Well —

Felix Frankfurter:

— and — and allow oral arguments merely by lead as — as I understand most state courts or a great many state courts do.

Eugene Gressman:

Well, I don’t deny there are power of the Court of Appeals consistent with any applicable federal statutes of which I’m not immediately aware of any.

But to determine within the grounds of good and sound discretion, what time shall be allowed for oral argument and conceivably as you point out, to limit it.

And certainly, it’s it’s recognized and it always has been that they don’t need to have oral argument in a given case.

And that’s —

Felix Frankfurter:

Or ask counsel to quit after they’ve made the opening statement on the ground that the Court (Voice Overlap) —

Eugene Gressman:

That is true, that is true.

Felix Frankfurter:

— is to where you’re listening to.

Eugene Gressman:

And there are —

Felix Frankfurter:

You bound to say there are many such cases in this Court.

Eugene Gressman:

And there are many cases where the Court has eliminated oral argument completely by the technique of the dismissal or summary dismissal on grounds of being frivolous or on some other ground, mootness or anything else that may occur.

No.

I certainly not maintaining that in each and every case, there is an absolute constitutional or statutory right to oral argument.

What I am maintaining is, that Congress in Section 1915 and in the interpretation of that Section in the Ellis case has set the standard, has set a procedure to be followed at this stage at least of an in forma pauperis application.

And that is a very simple standard.

Simply says that once a non-frivolous issue has been raised and has determined to be non-frivolous, then the appeal must go forward and presumably go forward through the full briefing and the oral argument stage.

Now, the — as I have pointed out, the Court of Appeals in light of the memoranda submitted and they expressly stated that that was apparently the sole basis for acting.

On the basis of the memoranda opposing and supporting the petition, the petition itself — the petition for leave to appeal in forma pauperis was denied.

John M. Harlan II:

Did they have the minutes, trial minutes before you?

Eugene Gressman:

Yes, Your Honor.

They did at that point.

Eugene Gressman:

I have secured the transcript previously to this point and while they didn’t mention it.

John M. Harlan II:

You submitted it was —

Eugene Gressman:

They — they had it before them, yes.

John M. Harlan II:

So they had everything before them you have (Inaudible)

Eugene Gressman:

That is right, yes.

And references were made in the memoranda particularly in mind to — and quotations were made just that I have in my brief before this Court quotations from that trial transcript.

Now, either after filed on behalf of the petitioner, a petition for certiorari in this Court claiming that the Court of Appeals had erred in denying this application for leave to file and that in that denial, based as it was upon the memoranda submitted, that it had failed to follow the applicable standards of Section 1915 and the standards set forth in this — in the Ellis case in this Court.

Now, again, it is interesting to note that the opposition filed by the Solicitor General in this Court did not meet the issues as I would — had presented them.

The questions presented being solely in terms of this failure to follow Section 1915 in the Ellis case, there is not one word in the Government’s opposition which even mentioned Section 1915 or section — or the Ellis case.

“Instead,” said the Government, and this I learned for the first time, I — “The petitioner in effect,” said the Government, “had been granted the appeal and that the appeal had been considered on the merits because of the fact that the transcript had been supplied and the issues had been briefed on the merits.”

“Therefore,” said the Solicitor General, “this petition should be considered by this Court on the strength of the substantive issues presented” namely, the two issues involving the constitutionality of Judge Jackson’s assignment and the other issue being the one of various references to the prior criminal record.

Now, I would say that on either theory, the one which I had adopted in analyzing the Court of Appeals’ action were the one that the Government presented to this Court that there has been an egregious error committed by the Court of Appeals in denying this particular petition for leave to file.

Because under my analysis of the Court of Appeals’ action, what they did and they — was in effect to adopt the arguments or recognize the merit of the arguments presented by the Government in the lower court, an argument which went to the merits, the substance of these two issues.

Charles E. Whittaker:

And I thought they have it?

Eugene Gressman:

No, Your Honor.

I do — don’t believe they do and in fact, this Court said in Ellis that is exactly what they must not do.

Charles E. Whittaker:

Are you complaining that in the Court of Appeals, the Government didn’t use the word frivolous?

Eugene Gressman:

Well, I think it’s more than on use of the word frivolous, Your Honor.

I think there has to be a — there has to be, first, a recognition of what the word frivolous means and then a proper application of that term.

Charles E. Whittaker:

If they show in response to (Inaudible) in the Court of Appeals, that the position, I’m speaking about this point one, is totally devoid merit, then haven’t they shown whether they used the word not that it’s frivolous?

Eugene Gressman:

Well, this again depends on a definition of the term frivolous which aspect I have tried to set forth in my brief.

But to answer your question directly, it seems to me that when the Court in the Ellis said that frivolousness is not to be equated with any particular degree of merit that there is a distinction to be made.

And when we look at the concept of frivolousness and the — the cross reference in the Ellis case to Rule 39 (a) of the federal rules of criminal procedure, I think we begin to see what is really meant by the term frivolous.

And the leading decision under Rule 39 (a) which involves of course prepaid appeals, the ordinary criminal appeal.

This Court’s decision in the United States against Johnson sets forth the fact that an appeal, a prepaid appeal may be dismissed under Rule 39 (a) if it presents a non-reviewable issue, an issue that is not within the jurisdiction of the Court of Appeals.

Now, I say that that is a substantial degree removed from any question of the ultimate merit of an issue that you can have a non-frivolous issue which turns out to be completely without merit upon a full examination of it.

Now, for example, take any case at random, take this Court’s decision a few weeks ago in the Costello case.

Now, that turned out to be without merit in light of this Court’s determination of it and yet, it could have been said at some initial stage in that proceeding that this was a frivolous appeal that Costello was raising.

Charles E. Whittaker:

Suppose that this event in the course of this trial expressly invited at this identification of which he revealed but he had spent a year in the workouts with the prosecuting witness, but he didn’t fight it back, dispute affirmative on the face of that.

He couldn’t complain then as a matter of law about what he had invited.

Charles E. Whittaker:

And wouldn’t then the Court of Appeals say justly, soundly, your complaint is frivolous.

Eugene Gressman:

Well, I — I agree Your Honor that — that this becomes a matter of degree that it’s — it’s very low end of the totem pole.

You’re going to reach the point where judges will all agree that this particular petition is frivolous in nature that the issue raised is frivolous.

But I say, it’s a very low place in the scale of values and judgment because the — the Section 1915 as which has been interpreted by this Court says that it does not get up into any particular area of merit so that it must be some area below a discussion or an evaluation in terms of its ultimate merit.

Charles E. Whittaker:

(Inaudible) for myself alone, I will await your discussion on the second point.

Felix Frankfurter:

Do you think — do you think it’s very profitable to try to discuss and try to derive at a — at a formulation of what is frivolous in the abstract?

Do you think that’s a very profitable line of inquiry?

Eugene Gressman:

Well, Your Honor —

Felix Frankfurter:

That’s why — I must remember that the Ellis case, the Ellis case, the real issue was whether a time accomplished should constitute themselves in effect judges, that is an advocate.

Eugene Gressman:

That is true, Your Honor.

But those assigned — then speaking of that particular case for, the Ellis case did involve that — that very serious problem about the function of assigned counsel.

But those assigned counsel did submit to the Court of Appeals, a very extensive memorandum you will recall.

The error they made in — in that memorandum which led to the problem was a fact that they warmed up by saying that this issue of the validity of the arrest, I believe it was, had no merit and therefore —

Felix Frankfurter:

They misconceived — in Ellis, they misconceived their function.

Eugene Gressman:

True enough.

But they also did discuss and gave the Court of Appeals at least as much insight and — into the issue that they raised in terms of the facts and the various propositions involved in it, the only error they made and this — I think it points up at the very meaning of the Ellis case as this Court opinion demonstrate.

The error that they made and I think the error that the Court of Appeals here made was that having had this amount of insight given to them into the issue, it was resolved by this appointed counsel and by the Court of Appeals which already in that case in terms of the merit.

Felix Frankfurter:

But I think that — I think a court reading on the — reading a record which Justice Whittaker just add on this, outlined delineated, a court power or room of action is very different from counsel appointed to defend a person and conceiving himself to be a lay judge.

Those are very different function.

Eugene Gressman:

That is true, Your Honor.

But except that in the Ellis opinion here, this Court not only said that was not the function of counsel in effect but it also said it was not the function of the Court of Appeals to resolve the petition or leave to appeal in terms of any particular degree of merit.

Felix Frankfurter:

Well, All I’m suggesting is that — that lawyers can talk — you and I can talk by the hours to what it is and what is not frivolous in the abstract and yet agree on specific cases.

Eugene Gressman:

That is true.

I suppose that’s always the — the problem you do have in these cases.

Felix Frankfurter:

Frivolous isn’t — it doesn’t mean frivolous, as we lawyers use it, isn’t — what frivolous means to the man on the street.

Eugene Gressman:

But this is one of the very serious problems I think that confronts an appointed counsel in these cases as to how he is going to demonstrate this non-frivolousness of the issue he seeks to raise in the abstract as you point out without knowing exactly what the Government’s position on it is or what — what it is that someone else might think is frivolous about the issue.

Now —

Felix Frankfurter:

And not only that.

I suggest further that if a case comes here after the Court of Appeals has found issue is frivolous, we are not to determine independently what we think about it.

We are sitting in judgment of three and of — of nine men or five men out of nine.

Eugene Gressman:

That is true, Your Honor.

Felix Frankfurter:

Since there is a clear and an inevitable difference of opinion upon equally competent lawyers or judges rather, what is frivolous, we — we seek in judgment upon their judgment.

Eugene Gressman:

That is true.

Except that in this case, I submit that there isn’t at least on one issue, a much reasonable ground for difference of opinion as to its frivolousness.

Now, I might just add a comment or two about the Government’s position in this point as revealed in its brief to this Court.

The Government as I read their brief would confine Section 1915 and the Ellis doctrine which we have been discussing to counsel’s application for a transcript to the trial.

Now, this, I cannot understand neither the language of Section 1915 nor the Ellis case itself in its facts or in its decisions by this Court.

It anyway supports a limitation of Section 1915 to counsel’s application for the transcript.

In fact, I think that’s an impossible burden or an impossible test to apply in situations such as in this case where I didn’t know what the issues were that might arise out of the transcript and it was for that precise reason that I ask for the transcript and already determined if there were any non-frivolous issues, and how you could determine and apply a non-frivolous test to my application for the transcript is beyond it.

I simply told the Court of Appeals that I don’t know what these cases about.

I can’t adequately represent the petitioner without a transcript.

Now, Ellis doctrines and Section 1915 certainly do not apply to that application.

Now, on the other hand, once a transcript has been supplied as it was in this case, and briefs or memoranda are submitted by appointed counsel and by the Government, then the Solicitor General says, “Then you do no longer apply Ellis.

You no longer Section 1915.”

Then it is entirely up to the Court to determine in its discretion whether or not they feel the issues presented and developed in the memoranda are sufficiently importance to warrant taking up any further amount of the Court’s time in briefing — reading briefs or in hearing oral argument.

Now, I submit that is a complete provision of Section 1915.

It converts into what is in effect, a certiorari jurisdiction in the Court of Appeals and the — by the cases that the Solicitor General brief cite in — in this Court where this Court on petition for certiorari are on jurisdictional statements, take summary action of affirming or dismissing or denying the decision below has absolutely no relevance to the function of the Court of Appeals under Section 1915.

It is not a certiorari jurisdiction for the Court of Appeals and the Court of Appeals is bound to imply entirely different standards under Section 1915 and this Court is called upon to exercise in determining whether or not to hear oral argument in the cases that come before.

And the Congress has spoken very explicitly that at this juncture up to and through oral argument and that’s what Section 1915 covers.

The petition for leave to appeal that you are not to cut off the petitioner from further proceeding on his appeal unless and until it has been determined that the issues he seeks to raise are frivolous in nature.

If they are non-frivolous, then there is no discretion in the Court of Appeals to cut off further processing of that appeal.

Now, I submit that limit breaking up the appellate process of this indigent appellants into these two categories that this Government suggests would result in — on a gross discrimination against paupers who seek to appeal because the prepaid appellants who are subject only to the federal rules of criminal procedure in their appeal rights are not cut off from pursuing their appeal simply because the Court doesn’t want to take time to listen to their briefs, read their briefs or listen to their oral argument.

There is as I say, not the — the discretionary type of jurisdiction in the Court of Appeals that exist up here.

Now, I only wanted to briefly refer to the two issues that I raised below and to emphasize that whatever the standards may be, the standard of non-frivolousness even go beyond and if you will into standards of substantiality, I would submit that there can be no question.

But what the two issues which were sought to be raised on behalf of petitioner meet those standards and that they were of such substantial nature as to compel with the warrant, full review and determination on the merits by the Court of Appeals.

Now, we’ve already discussed some length the — the first issue raised.

I won’t go into at any further except to say that — that which the Government has not denied that precisely this same type of issue, these references to prior criminal record during the course of a trial was precisely the kind of issue which this Court in Farley against United States said was not frivolous in nature.

So that I believe that that decision alone is proof of the non-frivolous nature under Section 1915 of this particular type of issue.

And I would submit that the arguments engaged in by the Government in their brief seeking to demonstrate its alleged frivolity only add to its non-frivolous nature because I have answers to each and every one of the contentions made by the Government.

I don’t think that these issues are so clear cut, one way or the other at this point.

Eugene Gressman:

I think they need and deserve fuller exploration in briefing an oral argument before the Court of Appeals on the merits.

Now, the other issue raised, of course, I believe not even the Government as at anytime asserted that it was frivolous in nature.

It seems to me that a constitutional question which has never been resolved by this Court or by any other court, a constitutional question that had eventually resulted in the Government of the United States asking this Court to overrule one, if not more two or three decisions of this Court by its very statement is non-frivolous issue.

Now, I do not — I would prefer to reserve until my rebuttal time fuller discussion of this issue except to point out several factors concerning this issue.

I might say that it is an issue that was initially raised and inverted to in the Bakelite opinion in its references to the fact that there may be constitutional objections to the assignment of constitutional court judges to legislative courts.

It seems to me that by an even greater token, there may be constitutional objections to the assignment of legislative court judges to sit on constitutional courts.

But there was no attempt in Bakelite or in any other decision to meet or to resolve that issue.

Potter Stewart:

During the time that Alaska was a territory, at this point, the usual things sent up Article III district judges from the continent of United States to serve up there.

And if — do you know of any — any challenge to that?

Eugene Gressman:

I know of no challenge that has ever been made in terms of this type of assignment.

Potter Stewart:

That would be assigning constitutional judge (Voice Overlap) —

Eugene Gressman:

That’s the reverse situation.

I think there might in — to my way, I think there might be less objection to that and there is to the legislative court judge sitting on the constitutional court.

Potter Stewart:

I was wondering if you knew — if anybody ever challenged that because I know (Voice Overlap) —

Eugene Gressman:

No.

As a matter of fact, I checked only today with the clerk of the Court of Customs and Patent Appeals to determine how often this type of assignment had occurred and he told me that Judge Jackson is the only judge that he knows of who — at least in a retired status has ever been assigned to sit on an Article III Court.

There was a case several years ago, the Jepson case I believe where Judge Jackson and one other judge of the Court of Customs and Patent Appeals both of whom were then sitting on that Court where assigned to the District Court here in the District of Columbia to sit on this antitrust three-judge court suit.

Felix Frankfurter:

Do you think it’s really arguable that when — when parenthetically remark of yours?

Do you think it’s really a non-frivolous question that a retired judge of given status has the same jurisdictional power, the non-retired judge of that status?

Do you think that’s arguable?

Eugene Gressman:

I certainly do, Your Honor.

Felix Frankfurter:

You do?

Divide the booth, that’s arguable?

Eugene Gressman:

Yes, I —

Felix Frankfurter:

A retired judge — it maybe sure you stated my question that a retired judge, that a judge who could sit in a — in any case is — is disqualified from sitting after he is retired, do you think that’s arguable?

Eugene Gressman:

Well, and now — maybe I didn’t understand the full import of your question.

Felix Frankfurter:

You said you — the reason I asked the question because you said the — I think is that you got whether at least no retired judge had been assigned when that carried to me the implication that you thought there might be a difference.

Eugene Gressman:

No, I think there — there’s —

Felix Frankfurter:

Or is that merely a fact that you —

Eugene Gressman:

It is a — it’s simply a fact, Your Honor.

Eugene Gressman:

I’m not —

Felix Frankfurter:

That goes significance.

Eugene Gressman:

Not at this juncture.

Earl Warren:

I suppose you were referring to a judge who retired before he became — it became a congressional court.

Eugene Gressman:

That is true, Your Honor and —

Earl Warren:

— constitutional court.

Eugene Gressman:

There — as I say, there’s apparently in — in answer to Mr. Justice Stewart’s questions.

I don’t think there have been many assignments made of so-called legislative court judges, whatever their status, retired or otherwise to sit on constitutional court.

So, I don’t think the occasion has much a reason.

Potter Stewart:

There had been quite a few the other way.

Eugene Gressman:

That is right.

The other — there is one instance where I think I noted in my brief in the Irish case in the Ninth Circuit where a judge from Hawaii was assigned to sit on the Ninth Circuit and actually wrote the opinion of the Court which was not objected to but it did call forth an adverse comment in our lower view but apart from that —

Potter Stewart:

Well, I just — You don’t call that statute?

Eugene Gressman:

No.

Earl Warren:

Mr. — Mr. Gressman, do you know — do you know of any case where a territorial judge has been assigned out of the circuit in which he is serving?

Eugene Gressman:

A territorial court?

Earl Warren:

Yes, like — like the — like the Hawaiian Court, the Alaskan Court, those are the ones you are speaking off —

Eugene Gressman:

Yes.

Earl Warren:

— who acted.

But do you know if you — if they were ever assigned outside of the circuit?

Eugene Gressman:

I’m not aware of any, Your Honor.

The only one as I say was this Ninth Circuit.

That was within his own circuit so to speak.

Earl Warren:

But I’ve been wondering that because I have request to do that at my time here and never would assign them but Judge Diamond — Chief Judge Diamond called for it to assign him around in his own circuit.

Eugene Gressman:

Yes.

Earl Warren:

But I don’t know if that ever happened in the other time.

Eugene Gressman:

I’m not aware of any, Your Honor at all.

This is a type of thing I suppose it’s — would have to be a very careful examination of the records in the administrative office over the period of years to determine the assignments that have been in fact made but–

Earl Warren:

Because if that could be done, we could have almost the same situation we have — we have here now with — our Alaskan territorial judges and our — and our Hawaiian territorial judges as to whether or not they would be able to move forth assignment to sit in any of the —

Eugene Gressman:

Yes.

Earl Warren:

— any of the District or Circuit Courts of the country wouldn’t be very much the same.

Eugene Gressman:

Yes.

There is a related situation in the sense of assignment of Court of Claims judges to sit in various circuits around the country.

That has occurred although —

Earl Warren:

Yes.

But — but they have been made — they’ve been made — that’s been made in constitutional court.

Eugene Gressman:

Yes.

Well — (Voice Overlap)–

Earl Warren:

(Voice Overlap) that’s whether the issues are brought in there.

Eugene Gressman:

Yes.

Charles E. Whittaker:

Mr. Gressman.

Earl Warren:

Yes.

Charles E. Whittaker:

It’s been suggested here that perhaps some different consequence results depending upon whether the judge retired at a particular time, how could that affect it?

He — even though he retires, he is still a judge, isn’t he?

Eugene Gressman:

That is truly —

Charles E. Whittaker:

Judge of the court?

Eugene Gressman:

— absolutely, Your Honor.

I don’t question that fact nor do I question the — the Booth case which said that a judge once he retires is entitled to the Article III protection against any diminution in his salary.

And his retirement pay, said that for purposes of the retirement statute, purposes of being a judge in effect, he remains the same after his retirement.

I don’t object to that, Your Honor.

What I do say is this in relation to this case, that the fact that Judge Jackson had retired has this much significance at least.

It adds an additional factor and additional constitutional problem in this case for this reason that as I view a judge’s powers, they argue right primarily and perhaps exclusively from the powers and functions of the Court to which he is appointed and if during his 10-year on that court up to and through — to the point of his retirement, the functions and the jurisdiction of that court are never changed.

And he then retires and then subsequently, there is an effort to add to the functions or the jurisdiction of that Court.

I think it is an arguable point and — at least an unresolved question constitutionally as to whether or not that retired judge acquires additional powers and duties and status if you will by virtue of a change made in the function or the nature of the Court subsequent to his retirement.

I think there is a problem there as to whether a man in his retired status can acquire something different than what he took with him when he retired from that court.

I don’t think that question has ever been answered.

I don’t think the Booth case answers that problem.

Charles E. Whittaker:

Because he never left the Court under the federal system.

Now, he becomes a senior judge thus being —

Eugene Gressman:

Well, — in — in a sense.

Charles E. Whittaker:

In a matter of known legislature.

He just does not have to work as hard unless he wants to.

Eugene Gressman:

And of course in this — in this particular case, there is the addition of problem whether he’d be retired or not as to whether a conversional declaration in 1958, six years after he retires but let’s say it will apply equally to the current judges of the Court.

Absence any real change in the nature or the function of the courts or any attempt to change its — its origin or status, whether that in himself can change or add to the functions of the judge in a retired status or in an active status.

I think that is the — the basic question involved by this type of legislation.

And that too has never been resolved by this or any other court.

And in fact, the Bakelite case very clearly warned against this precise type of legislation which was adopted by Congress as to this various courts.

Charles E. Whittaker:

Do you think the Bakelite case is relevant to the issue here?

Eugene Gressman:

Well, I have never thought until I got to this Court that the Benny Lurk’s conviction was going to depend upon the maintenance or the overruling of the Bakelite case.

Charles E. Whittaker:

It pertained to a conscious appointment for a limited period of four years in the territory.

And if —

Eugene Gressman:

Not the — not the Bakelite case.

Charles E. Whittaker:

Wouldn’t that the Bakelite case?

Eugene Gressman:

No.

That — that was the Court of Customs and Patent Appeals that precise court Judge Jackson case.

Charles E. Whittaker:

Well now, if the William’s case, one of them did relate to an appointment for four years.

Eugene Gressman:

Year — and perhaps Your Honor is thinking of American Insurance Company against Canter in 1828 to opinion for the Court by Chief Judge Marshall a territorial Court in Florida —

Charles E. Whittaker:

Yes.

Eugene Gressman:

— which I think had a limited tenure of four or eight years.

Charles E. Whittaker:

Which was the case from which these other two have stemmed.

Eugene Gressman:

That is right.

That is the Canter case.

1928 is the one that originated this dichotomy between constitutional and legislative courts and made these very clear distinctions upon which they cite Williams and O’Daniels subsequently true upon in formulating a status of the Court of Claims, the Court of Customs and Patent Appeals and the District of the Columbia courts.

Felix Frankfurter:

Very different courts.

Eugene Gressman:

That —

Felix Frankfurter:

In tenure, in purposes, in — in the inevitable duration of the Court.

I never — I’m going to the merits.

I’m just saying that —

Eugene Gressman:

Absolutely not.

Felix Frankfurter:

— from — from Canter to Bakelite was an awful general.

Eugene Gressman:

It’s — well, I know every — in fact the other commentator has so said that and the — the fact remains that — that those decisions are on the books today, the question, I submit, has a very great substance in significance as to whether they are to be continued and what the effect has been upon the status of those courts today.

Felix Frankfurter:

I meant you to say Mr. Justice Van Devanter who know more about these things and who was more — I almost said crafty and is not just about those things.

He would have been the last person in the world to hold that an act of Congress couldn’t make the Court of Custom or Appeal or the Court of Claims or constitutional court.

However, you have a right to say I’m now making the statement dealing with merits.

Charles E. Whittaker:

Isn’t it true —

William J. Brennan, Jr.:

Incidentally though, you want us to decide the merits of this question.

You don’t want us to send this back to the Court of Appeals even —

Eugene Gressman:

Well —

William J. Brennan, Jr.:

— though we agree with you that it’s —

Eugene Gressman:

I —

William J. Brennan, Jr.:

— non frivolous, who set the Government 137 pages, that it was frivolous.

Eugene Gressman:

Yes, Your Honor.

I — I, at the very least, I would like the determination that this issue was not frivolous, it’s whether Your Honor —

William J. Brennan, Jr.:

Oh, what do you mean —

Eugene Gressman:

Not —

William J. Brennan, Jr.:

(Voice Overlap) and send it back to the Court of Appeals and have us decide?

Eugene Gressman:

Well, the way the issues come up to this case at court that is the context in which they arrive that this was an issue which should have been resolved in the first instance by the Court of Appeals.

Now, having gotten up here at this status and there having been various factors in this matter, which I think this Court is fully aware of.

I think it can be said to be appropriate if Your Honor so decide to resolve this question now —

William J. Brennan, Jr.:

Both questions or just this one?

Eugene Gressman:

At least the constitutional question.

I’m not suggesting that the other issue would be raised.

I think it falls squarely within the context to the Ellis rule and that there’s be no need for a determination on that issue at this juncture unless Your Honors feel that it has been — that there is some reason for doing so.

But certainly, the Government has come up here with a full scale argument on this.

We have amicus representation on the behalf of the judges of Court of Claims.

And as I pointed out, the Court of Appeals has upheld all appeals arising from Judge Jackson’s Court pending possible resolution of this question in this Court.

So that, those are matters which I submit may well require or at least justify a resolution here rather than resubmitting it to the Court of Appeals for a question which was certainly have to come back up here promptly again in view of the forces that have been put into motion.

I might say that moroseness has been stirred up by this.

Felix Frankfurter:

Let me carry this out.

You said certainly this second question, are you suggesting we should decide the second question in case that goes against it that goes for you as an end of the matter, isn’t true?

Eugene Gressman:

Well, that is true.

If you —

Felix Frankfurter:

If it goes for you, are you then suggesting we should send the case back to the Court of Appeals on that, what Mr. Justice Whittaker has categorized, as a frivolous question?

Eugene Gressman:

Well, no, Your Honor.

Let me —

Felix Frankfurter:

Does this case deserve that kind of elaborate proliferation of judicial proceedings?

Eugene Gressman:

Well, If Your — if Your Honors were disposed to decide the constitutional question favorable to — to me — to my position, it would seem to me that this would necessarily, as I pointed out in our reply brief, involved a determination that the judgment rendered was void.

There would be no further —

Felix Frankfurter:

No, no.

But if it goes against you —

Eugene Gressman:

If it goes against me —

Felix Frankfurter:

— will you suggest that — that we should send the — the evidentiary question part which Mr. Justice Whittaker has expressed not only his own views, do you think we should send that back to the Court of Appeals?

Eugene Gressman:

Well, I think that that is — has not been resolved properly at the Court of Appeals level.

I don’t think that they properly apply the Ellis standard to that issue.

Felix Frankfurter:

I understand that.

I —

Eugene Gressman:

And that —

Felix Frankfurter:

— I assume that.

I —

Eugene Gressman:

— that I’m —

Felix Frankfurter:

I follow your argument.

Eugene Gressman:

Yes.

Felix Frankfurter:

And therefore, I say is the — is the conclusion of — of the administration of justice that we should send that case back to maintain the purity of the procedure you conceive it rather dispose of it here.

Eugene Gressman:

Well, it’s — I think this — this constitutional question, as I said, raised a great — a lot of questions of importance.

But I think the Ellis point is also equally important in a sense of the administration of this in forma pauperis petitions in the Court of Appeals.

Felix Frankfurter:

I understand all that.

But I want — want to know what you suggest, what you submit to the Court as the appropriate procedure in case the constitutional question goes against you.

Should we then say we decide that Justice Jack — Judge Jackson, whatever he was, there was jurisdiction and you go and decide this other question because it wasn’t frivolous, is that what you suggest?

Eugene Gressman:

Well, I — do you mean to have this Court decide the merits of this record or evidentiary problem?

Felix Frankfurter:

Or should this Court clean the case after him?

Felix Frankfurter:

If I may repeat my phrase —

Eugene Gressman:

Well —

Felix Frankfurter:

— not as of a proliferation of proceedings.

Eugene Gressman:

— I would say to this extent, it would be appropriate perhaps just to have a determination made that this is not a frivolous issue and that therefore should be remanded to the Court of Appeals to allow the appeal to go forward.

Felix Frankfurter:

Alright.

Then it comes — and that question come — come here on certiorari again, is that it?

Eugene Gressman:

Probably not, Your Honors, since that would involve basically a determination of local — District of Columbia law.

Felix Frankfurter:

Oh, but that could be blown up into a First Amendment problem.

Eugene Gressman:

Not by me —

[Laughter]

Charles E. Whittaker:

In as much as all federal courts, say, this one, are created by a congressional act, just what do you mean by the phrase legislative as distinguished from a constitutional court in the federal system?

Eugene Gressman:

Well, I would first point out that every so called legislative court as determined by this Court in the series of decisions as a reason out of some act of Congress.

All the territorial courts, the Court of Military Appeals, all have a reason out of acts of Congress, acts of the Legislatures.

What this Court has defined to be a legislative court is a court which has been determined to they had been created by Congress in execution basically of its Article I powers rather than an execution of the judicial power of the United States under Article III.

And when this Court held in Bakelite that that was a legislative court, this Court of Customs and Patent Appeals, it was same in effect that is so it is legislative because the Court was created solely to execute the customs and the tariff powers of Congress under Article I.

And it was not attempting to execute the power to decide cases and controversies within the — and other function areas of judicial power of the United States as defined in Article III.

So that, it’s — it’s not so — it’s not a question of whether or not it’s created by an act of the legislature or Congress.

It’s a question what power — what article of the Constitution was Congress look into or executing when it did create a particular court.

Earl Warren:

Mr. Davis.

Oscar H. Davis:

Mr. Chief Justice, may it please the Court.

On the threshold question of the — whether the Court of Appeals urged under 28 U.S.C. 1915 in denying petitioner further leave to appeal in forma pauperis, I would like if I may to set before the Court four factors which I think are important.

I should use them in my argument but they are not arguments in themselves.

The first factor is that this case and the problem of this case only rises where the District Court has denied leave to proceed in forma pauperis.

That is it only arises where the District Court has denied to leave to proceed in forma pauperis where the District Court grants leave to proceed in forma pauperis.

The practice in the District of Columbia Circuit and I believe elsewhere is to treat it in exactly the same ways as a prepaid appeal and — and goes forward on the same basis.

So —

John M. Harlan II:

It’s true in all circuits.

Oscar H. Davis:

I think it is.

I haven’t checked that’s why.

William J. Brennan, Jr.:

That’s it has to be exactly, isn’t it?

William O. Douglas:

This was a denial by the Court of Appeals.

Oscar H. Davis:

Yes.

What — what I mean to say is that you — you start with the premise that the District Court has found that this — that the appeal was frivolous.

So it is not the same the situation as where — it all — it doesn’t deal with all indigent appeals.

They only deal with indigent appeals whether District Court has already made on a merit of termination.

The second factor that I’d like to present to the Court is, is that there is a special situation in the District of Columbia Circuit.

They have general jurisdiction of local crimes.

They have an enormous number of criminal cases as compared with other circuits.

They are larger circuit of membership but they have an enormous number.

The figures that I have jived with those which Mr. Gressman gives to the Court, in the year 1960, the fiscal year 1960, the — I’m told that the forma pauperis cases in the Court of Appeals that’s excluding the ones where the District Court granted, just the ones applied to the Court of Appeals are 191.

Now, most of those were collateral attack, Section 2255 or habeas corpus but I think as Mr. Gressman has pointed out about 43 were on direct appeal from the criminal conviction.

And this is a relatively large number I believe with — in comparison to — to the other circuits in the country which dealing with federal types of crimes.

I would say, Mr. Justice Stewart that though I haven’t made a thorough search from recently reported cases, I would say that at least the first Eighth, Fifth and Ninth Circuits followed the same practice of what you call the two-step proceeding as far as they reported cases.

Potter Stewart:

And the second does too.

Oscar H. Davis:

I — I think so.

Potter Stewart:

I again — I never understand why they did and I don’t frankly understand why in view of the magnitude of the case load here why this Court doesn’t adopt to more efficient procedure?

Oscar H. Davis:

Well, this brings me to the — the third factor that I want to mention —

Earl Warren:

Well, Mr. Davis, before you get to that, in figuring out the amount of court time which involved there, I wonder if you ascertain how many of those cases that were denied as being frivolous found their way to this Court so that we have to examine the record that — and have to determine whether in fact it was frivolous and whether in — whether we opt to reverse it and send it back for consideration in the light of the Ellis case.

Oscar H. Davis:

Well, there is certainly have —

Earl Warren:

There have been quite a few of those that — that really take some time in this Court when we have to go over the whole record.

Oscar H. Davis:

Mr Chief Justice, that is also related to the third plan which I have to make.

Earl Warren:

Oh, yes.

Oscar H. Davis:

Those cases that — that many of the cases that this Court has seen were cases unlike this case that the records had not been supplied, counsel had not taken the role of the advocate but it act as amicus.

Counsel had not filed extensive memoranda as this counsel did.

The memoranda which Mr. Gressman filed which are very able legal documents are in the record in this case.

And — and the Court will be able to see that they compare with a brief on the merits in — in many of criminal cases of this non-complexity in the — in the Courts of Appeals.

There have not been many cases except perhaps in the present term Mr. Chief Justice, where you have a combination of a counsel who has acted as advocators this Court required in the Ellis case who has filed as completely extensive, a memorandum has been found in this case, where the full record was before the Court of Appeals and the record is only 75 pages long, and the — and the case was not a complicated case.

Felix Frankfurter:

I think — I think the cases that came here, I maybe wrong, I well be wrong.

My recollection is that we had a considerable number about the time of the Ellis case that was subject to the Ellis infirmities and we send it back to consider in light of Ellis.

Am I right about that?

Oscar H. Davis:

I — I think that is right.

By our count Mr. Justice, only one case which the Court has already acted upon was comparable to the present case in the sense that counsel had acted as advocate.

There has been a — a record transcribed and there had been briefing as on this case.

There are, I think, a number of pending in the bosom of the Court which are comparable to — to this one.

So that it — to repeat myself, I think that this case is different from the other cases which have been here and which — and which the Court of Appeals has differed upon.

Mr. Justice Brennan, you mentioned the fact of dissents and sometimes en banc.

I think, there had been dissents in some cases like this one where there had been full briefing.

But most of those were cases where the Court of Appeals purported to act under 1915, Section 1915 without a record or without full briefing by counsel as I think there was in this case.

So, that this is not a repetition problems that you had.

It’s — it’s I think a relatively new problem and the Court of Appeals has chosen, the Court of Appeals of the District as the other Circuits have chosen to follow this procedure though they — they might have if they had thought it desirable followed the procedure which Mr. Justice Steward tells us was followed in the Sixth Circuit.

But we think it was within their allowable discretion in the administration of justice in the District of Columbia Circuit particularly in view of the kind of cases they deal with to follow this kind of procedure.

And the last general facts that I want to mention was raised by a statement of Mr. Justice Brennan.

I think we have to look at what our position is here and in the Court of Appeals at the precise issues which counsel raised.

And of course, if in our view, counsel has raised in the Court of Appeals the question of whether the Court of Customs and Patent Appeals and its judges were not now and never were and could not be constitutional judges.

I think it would be right that we could not say that we had to follow brief at this length and called it non-frivolous.

But in our view, when I think this appears clearly if you read both the original memorandum filed by Mr. Gressman in the Court of Appeals and particularly his reply memorandum, he did not raise that issue in the Court of Appeals.

What he said in our view was, “I will assume” he didn’t conceive, he said, “I will assume that the judges of the Court of Customs and Patent Appeals who were active in service in 1958 when Congress passed the statute saying that the Court of Customs and Patent Appeals is a constitutional court.”

I will assume that they are constitutional judges and that the Court is now a constitutional Article III court.

I will assume that.

What my only position is as — as we read his briefs in the Court of Appeals is, that Judge Jackson who retired in 1952 before that statute, he cannot go along with the active judges or the judges who are in service after 1958.

And as to that narrow issue which was the issue that he presented to the Court of Appeal —

William O. Douglas:

Well, that’s — that’s presented in his reply brief here.

Oscar H. Davis:

Well, he does present it again.

His main brief has a much — much broader argument.

But in the Court of Appeals, he contented himself with that argument alone.

As to that argument, we think the Booth case is decisive that a federal judge who retires — retires from active service, he doesn’t retire from the Court.

And if you will assume or concede for the purpose of argument that the other judges of the same Court, the Court Customs and Patent Appeals are Article III judges in the Court is an Article III Court at least since 1958 that you have necessary conceded under the rule.

The principles laid down by this Court and particularly enunciated in the Booth case that Judge Jackson is also an Article III judge so that we thought and on that issue —

William O. Douglas:

Just by reason of his assignment or?

Oscar H. Davis:

No, by reason of the fact that if I may use an inelegant expression, “the height goes along with the hair.”

Oscar H. Davis:

The retired judge has the same position as the active judges and if — if they are constitutional judges and he’s a retired judge, he necessarily has the same characteristics of status.

William O. Douglas:

But I thought the argument was it, there was no office in quotes that could be built.

Oscar H. Davis:

Well, I think that goes to the question of de facto Mr. Justice Douglas but on the — on the argument that was made in the — in the Court of Appeals by counsel, it was simply that whatever might be true of the other judges of the Court since 1958 couldn’t be true of Judge Jackson because he retired before 1958, retired in 1952.

And on that issue, we only stand at page and a half Mr. Justice Brennan in this large brief of ours.

And I think it’s — it’s conclusively against the position taken the by Mr. Gressman in the Court of Appeals.

Now, in this Court —

Potter Stewart:

But then Mr. Davis, as I understand it, you concede that on the basis of the arguments now made as contrasted with — with what you’re telling us that he can tie himself within the Court of Appeals on the basis of the arguments now made, this is not a frivolous (Voice Overlap) —

Oscar H. Davis:

Oh, most certainly not.

Potter Stewart:

Well then, that say equivalent to confession of errors, isn’t not, that this appeal should not have been dismissed?

Oscar H. Davis:

Oh, no.

Because I think the Court of Appeals could properly pass upon the issues raised by counsel.

But as I — if — if counsel restricts themselves to an issue which is frivolous and substantial or unworthy of further argument, I think the Court of Appeals can properly decide on the basis of the issues presented by a counsel.

Potter Stewart:

Well, but there is and this is jurisdictional question.

And therefore, one I assume which cannot be waived and which can be raised in any states of proceeding, isn’t that right?

Oscar H. Davis:

Well, I think you cannot fault the Court of Appeals for — for deciding on the basis —

Potter Stewart:

No, no.

Perhaps, they were let into it by — by counsel.

Oscar H. Davis:

Yes.

Potter Stewart:

There, you now concede there — there is a question involved here which is not frivolous.

Oscar H. Davis:

Oh, that’s right.

Potter Stewart:

And it’s a question which is jurisdiction, is that correct?

Those are my words.

I’m not (Voice Overlap) —

Oscar H. Davis:

Yes.

Well, I — I would think that it is a question.

No, I don’t want to concede that because we have the argument of de facto which I might outline right now though.

It’s way ahead of my — my argument.

Potter Stewart:

Well, I was wondering where that left us.

If they’re — if it is now conceded that there is a question on this appeal that is not frivolous whether that doesn’t end the matter right now and whether we’re not, we just shouldn’t set (Voice Overlap) —

Oscar H. Davis:

Oh, no.

Oscar H. Davis:

I — I do not think that — that the Court — you can reverse the judgement of the Court of Appeals on the basis of fact that counsel in the Supreme Court has raised an issue which he did not raise below.

You might wish to decide that new issue with yourselves or perhaps in — in your discretion, you might vacate the judgement or not reverse (Voice Overlap) —

Potter Stewart:

It’s — it’s a denial of motions what the Court of Appeals did, isn’t it?

Oscar H. Davis:

Yes.

But I think they have the right to deny a motion on the basis of the issues presented to them.

And this issue in our view is not presented and therefore, they acted properly.

If — if this Court feels and we think it should that the broader issue is — is appropriate here and can be disposed off, we think it’s appropriate for this Court to dispose of the issue rather than to send it back to the Court of Appeals particularly since it’s already come out on oral argument.

It would have to come back here anyway and I — it is doubtful whether on an issue of this type, an issue of — of under Article III further like could — would be appropriate from — from the Court of Appeals and there is also the further fact to which has been mentioned that there is a considerable degree of interest on this question.

And considerable number of pending case depending on, Judge Jackson has been sitting regularly in the — in the District Court here for two years I believe and he is still sitting.

Judge Madden has been sitting in the various Courts of Appeals.

I believe that the Judge of the Customs Court has been sitting in the Florida District Court.

So, then it is a current problem which —

Potter Stewart:

The Custom Court of the Court of Customs?

Oscar H. Davis:

No.

Under the statute, a judge of the Customs Court has permitted to sit on a district (Voice Overlap)–

Potter Stewart:

The court of the New York, the Customs Court?

Oscar H. Davis:

Yes.

He has been sitting on the District Court in Florida as I understand.

Felix Frankfurter:

Mr. Davis, before you proceed, (Inaudible) the metaphysical question, they’re all friends of mine.

I should like to put this to you — I should like to ask you nearly by way of getting elucidation.

On the assumption, the ninth point that’s made that granted the Court of Customs and Patent Appeals is a constitutional court now.

But Justice Jackson’s retirement preceded that enactment.

Therefore, he is in the constitutional.

He isn’t — he has a constitutional status.

On the assumption of the Court is, that would mean either that he couldn’t as a retired judge sit on that constitutional court now or he could sit on that constitutional court but not another constitutional court.

Oscar H. Davis:

I think it would relate to an enormous number of —

Felix Frankfurter:

I did —

Oscar H. Davis:

— difficulties which the — the rule of this Court that the retired judge has the same status as the active judge as was designed to opt the act.

Earl Warren:

May I ask you this Mr. Davis, suppose to more of cong — Congress would establish a tax court as a constitutional court, as some people suggest, would that mean that everyone of the judges who sat on the tax court in the past who are retired before this comes along and whose terms have expired is eligible to sit in any District Court of United States?

Oscar H. Davis:

No, Mr. Chief Justice.

Oscar H. Davis:

But the basic difference there —

Earl Warren:

What is the difference?

Oscar H. Davis:

— is that the difference in the term.

The tax court judges have a term of 12 years.

And — and the judges of the Court of Customs and Patent Appeals since the creation of the Court in 1909 have had life tenure.

Earl Warren:

Since when?

Oscar H. Davis:

Since the creation of the Court in 1909 have had life tenure.

And that we think is the crucial difference.

Judge Jackson, when he was appointed in 1937 or 1939, was appointed for a life term.

But the judges of the tax court are not appointed for life terms.

They’re appointed for terms of 12 years.

I would doubt though of course it’s not for me to express an opinion that Congress could establish the tax court as a constitutional court without requiring that judges be appointed for — for life term.

Felix Frankfurter:

Or extending their present tenure for life.

Oscar H. Davis:

I — I would doubt very much whether that could be done very much.

Felix Frankfurter:

Pardon me?

Oscar H. Davis:

I would doubt whether — by even, I would doubt whether they could extend the — the present judges provided.

Felix Frankfurter:

But at all events, if it — they haven’t got life tenure or however secured, they’re out by the very terms of Article III.

Oscar H. Davis:

Yes.

Felix Frankfurter:

Even Article III court is a necessary incident is life tenure.

Oscar H. Davis:

Yes.

Felix Frankfurter:

The question comes whether if there is life tenure within the constitutional courts.

Charles E. Whittaker:

Is it about this claim, what (Inaudible) on the Court of Claims where the Customs and Patent feels like those who are district judges are appointed under the provision of Article III regardless of whether Article III is mentioned or not.

But others like territorial judges first is appointed in the tax court for a limited period, do — their point does not leave terms of Article III.

Is that right?

Oscar H. Davis:

That is — that right, Mr. — Mr. Justice Whittaker.

Potter Stewart:

Well it’s not —

Oscar H. Davis:

Well — that isn’t —

Potter Stewart:

— below, is it?

Oscar H. Davis:

I — I don’t think that is the conclusive answer but I think it is — it takes a long way to the answer.

Potter Stewart:

One thing the tax court isn’t a court at all theoretically.

Potter Stewart:

It’s not even a legislative court, that’s true.

Oscar H. Davis:

Well, Mr. Justice Stewart, the judges of the tax court feel quite strongly (Voice Overlap) —

Potter Stewart:

I’m sure they know and I — I either too [Laughter] too but they — but what is the other way, the expressions of (Voice Overlap) —

Oscar H. Davis:

I — I think that it’s still —

Earl Warren:

And they try — they tried cases in more judicial manner than many of the cases that come before the Court of Customs and Patent Appeals, do they not?

Oscar H. Davis:

Well, they’ve tried cases in a judicial manner as this Court has set.

I don’t want to admit Mr. Chief Justice that the cases before the Court of Customs and Patent Appeals are not all judicial.

Earl Warren:

Well, that ignored reflection on the judges of the Court.

Oscar H. Davis:

Yes, no, but I thought —

Earl Warren:

— but there are so many of their proceedings there that are — are —

Oscar H. Davis:

If — if I would have time Mr. Chief Justice and certainly in our brief, I would say to you that I think that today, the Court should hold that all the procedures of the Court of Customs and Patent Appeals are judicial that though the Court indicated to the contrary back in 1927 in the Postum Cereal case.

I think that there has been an advance in the law, a change in the — in the statutes which is irrelevant and that particularly in advance in — in the law which would lead this Court to hold if the issue arose before it agan, that those were judicial proceedings.

William O. Douglas:

What is the advance in the law in 1958?

Oscar H. Davis:

No, no I’m not referring to that.

I’m referring Mr. Justice Douglas to the fact that at the time the Postum Cereal case was decided, the —

William O. Douglas:

Well, how about the Williams and the —

Oscar H. Davis:

Pardon me?

William O. Douglas:

How about the Williams?

We aren’t talking about these men who wrote though — reads that opinion worth the first year of law students.

Oscar H. Davis:

No, no.

William O. Douglas:

Unlike Haight, Brandeis, Van Devanter?

Oscar H. Davis:

Mr. Justice Douglas, I was —

William O. Douglas:

You were talking about —

Oscar H. Davis:

I was only were referring to the fact.

In the Williams case, the Court of Claim judges were considered to be acting judicially.

The Chief Justice referred to the fact that some of the functions of the Court of Customs and Patent Appeals were held not to be judicial in — in — in the — particularly in the Postum Cereal case in 1927.

I don’t think that that — that is the same question as to whether the judge — the Court is an Article III court or the judges are judges are Article III judges.

I think it has a bearing out of it but there’s a different question as to whether the functions — particular functions of the Court of Customs and Patent Appeals with relation to patents and trademarks are administrative or non-judicial.

It’s not the same question as whether the Court of Claims is a — an Article III court.

I think there has a bearing on it but they are different, different —

Felix Frankfurter:

Mr. Cox, if you had more time, you’d have to clear up some more of the obscurity of this subject because we have to go into the consideration of whether the Court of Appeals of the District is in both the constitutional and the legislative court because this Court held, it couldn’t review in Keller against Potomac.

It couldn’t review some of the acts of the Court of Appeals because they were legislative so that we have in this very Court of Appeals jurisdiction both constitution and legislative.

Oscar H. Davis:

And in the O’Donoghue case, this Court held that the judges of the Court — of the District of Columbia Court of Appeals were Article III judges who held their position if —

Felix Frankfurter:

They held that in the O’Donoghue but they previously held that this Court couldn’t review certain action with reference to rate fixing because they’re legislative.

Oscar H. Davis:

And the, the —

Felix Frankfurter:

And these men — these judges were on the first year law students but they were dealing with ad hoc situations about which much we’ve said.

Oscar H. Davis:

Well, I think that no one who’s gone into this field and I’m sure many of the justices at least will agree or feel that the — that the principles are not clear on this field of what is an Article III court and what is an Article III judge.

They — they’re —

William O. Douglas:

That’s the reason for the length of your brief?

Oscar H. Davis:

I think that is Mr. Justice Douglas, [Laughs] because the guide posts are not as clear in this field as they are in some others.

Felix Frankfurter:

It’s very easy to obscure the difficulty at least various cases and when you say the cases aren’t clear, I think that deserves a price to under statement.

Earl Warren:

Mr. Davis, is your position with Mr. Gressman waived the right to raise this question on appeal because of this memorandum that he filed with the Court?

Oscar H. Davis:

Raises on a petition for certiorari here?

Earl Warren:

No, no.

In the Court of Appeals, you say he didn’t raise it in there.

He only raised one fast comment.

Oscar H. Davis:

Yes.

Earl Warren:

That is whether a retired judge could later become a constitutional judge by reason in fact of his Court was so made.

Do you — do you contend the way Mr. Gressman presented the matter to the Court waived his right to pursue it to the extent that he now pursues it in this Court?

Oscar H. Davis:

No, Mr. Chief Justice, we do not think that the petitioner should be stand convicted of this crime if the broader issue which has been raised here is not decided in favor of the Government.

Earl Warren:

Yes.

Oscar H. Davis:

The only point that I was making is, I do not think that you can fault the Court of Appeals for denying leave to proceed, that is, I don’t think you can say that they erred in — in deciding issues which were presented to them and which were different issues from those presented to them.

Earl Warren:

I don’t think, Mr. — Mr. Gressman, they asked you to say that they erred in deciding against him.

They — they only erred in saying that — that these points were frivolous —

Oscar H. Davis:

Well —

Earl Warren:

— that he wants to be heard on —

Oscar H. Davis:

My —

Earl Warren:

— on the situation.

Oscar H. Davis:

My point, Mr. Chief Justice, is that he didn’t tell them that he wanted to be heard on this point which is now before the Court.

Earl Warren:

Well —

Oscar H. Davis:

I hope —

Earl Warren:

— as I understood him, this first memorandum that he — he filed was only for the purpose of indicating whether it was frivolous and it was in rather general terms, but — but that if he had been granted the right to be heard on the subject, he would have briefed it fully and would have argued it fully.

Oscar H. Davis:

He did not make any suggestion about the broader position.

Earl Warren:

Well —

Oscar H. Davis:

The — the issue that he did raise was, I think, frivolous, that is, the issue he did raise was frivolous.

And in all these forma pauperis proceedings, Mr. Chief Justice, it’s been assumed that counsel had raised those issues after he’s got in the record and has — had a chance to go over it which he thinks should be presented to the — will be presented to the Court of Appeals on — on the appeal.

And I think the Court of Appeals could properly rest on the issues which counsel raised.

Now, in this case, the petitioner himself in his pro se application raised five points, which Mr. Gressman abandoned.

He said that he didn’t think there was any merit to it and he raised two new points.

And so I think the Court of Appeals could properly say that the five points which had been abandoned meet — were not before them and may not be considered.

So, similarly, I think that they can say that only the two points which he had raised were before him.

I don’t mean to say that — in as the case has progressed to this Court that the conviction of any — of any clerk should be affirmed if without a decision on the — on the issue as — as to Judge Jack — at the — or should I say as to the — the broader Judge Jackson issue.

I stated in those terms because as the Court will see from our brief, one of our arguments is that Judge Jackson was at least a de facto judge and that therefore, in this case, in which the issue with — of Judge Jackson’s participation was not raised at all on the trial, was not properly before — would not properly before — before the Court of Appeals in any — in any instance.

Because it is our position and this is regardless of what maybe thought as to a distinction between an office and the judges’ right to hold the office.

I think that the rule is — is clear and I think universal state and federal that with respect to this issue of a de facto judge, it should be raised at the first opportunity.

But as when the — the party who claims that the judge should not have said, has an opportunity to raise that he should raise at that time and he cannot wait and try the case before the judge, and then on appeal say, “Oh, he had no right say.”

I think this is true of — of all the cases which — which I have been able to see and it was true particularly of the American and foreign case which the Court had last year with respect to Judge Medina because the Government there, at the first opportunity when the opinion came down indicating that Judge Medina had set on the — on the en banc hearing, the Government immediately filed a petition for rehearing.

And so, on that basis at least, we would say that the petitioner here is barred by the principles relating to de facto judges from challenging the authority of Judge Jackson to sit in this particular case.

Now, that, of course, would not solve the problem for the future, it would not solve the problem for the cases in which Judge Jackson may be sitting now in which the issue may be raised or for other —

Felix Frankfurter:

Mr. Cox, on the de facto point, I haven’t — Mr. Davis rather [Laughter], Mr. Davis, I have merely weighed your brief and not read it.

[Laughter]

Oscar H. Davis:

That’s a fair comment, Mr. Justice.

Felix Frankfurter:

And therefore, I don’t know whether you deal with the cases where there are cases and given equal justice to two sides, I read neither on the brief.

There are cases I believe where he carries a statutory limitation upon the power of a judge to sit or a court to have jurisdiction with de facto principle doesn’t apply, isn’t that true?

Oscar H. Davis:

We — we —

Felix Frankfurter:

But (Voice Overlap) —

Oscar H. Davis:

— we attempt to deal with that, but I will —

Felix Frankfurter:

I — I suppose you differentiate this case from the fact that there is no exquisite limitation here.

Oscar H. Davis:

No, we differentiate those cases from this one on the fact that those cases deal not with an explicit limitation but with — with the existence of the office itself.

Felix Frankfurter:

Yes.

Oscar H. Davis:

And here, the office of District Judge of the District of Columbia —

Felix Frankfurter:

There is no such office and therefore, it can’t be occupied even de facto.

Oscar H. Davis:

Well, that’s right.

But I would say this, Mr. Justice Frankfurter, that even as to that type of case, I think, I don’t know of any case where it was considered and passed upon favorably to the challenger to the judge if he hadn’t raised the first opportunity even in though in that type of case.

So, I think this is a general principle and of course, here, this issue as Mr. Gressman says was not raised before the trial court, and the trial proceeded to its conclusion without any suggestion that Judge Jackson had no right to sit.

I’m not certain as to — in the way the argument has proceeded whether I should go back to the — the forma pauperis issue but there — there — are one of two things that I would like to say about that because it is the general practice of the District of Columbia Circuit which is now before this Court, and I — and I would like to present some things which I think have a bearing on — on their choice of — of the procedure to follow.

And that is, I think it’s fair to say that the — what they have done in — in this case and comparable cases and which there’s been a record and — and extensive argument and I — extensive briefs, I mean, not oral argument is that they have decided that the issue just didn’t warrant any further — further briefs or oral argument in the same way that this Court decides when it — when it make — when an appeal comes before or sometimes even when a petition for certiorari that it will grant a motion to affirm summarily, sometimes reverse summarily without any further briefs or argument.

And we think that the — that that’s what the Court of Appeals was doing here.

It was —

William O. Douglas:

Now, we — we’ve often denied petition for certiorari where the decision below was obviously wrong.

Oscar H. Davis:

I’m — I’m not referring to denial to certiorari, Mr. Justice Douglas.

William O. Douglas:

Well, that’s all this is — this is denied.

Oscar H. Davis:

I — I’m referring to the —

William O. Douglas:

They didn’t say denied because it’s frivolous or denied —

Oscar H. Davis:

I think this is equivalent to a — to a decision on the merits.

I think that what they really decided was that the — that there was no — there was no at all merit in the — in this appeal and that it didn’t deserve any further briefing and argument.

Potter Stewart:

Well, that’s, of course, contrary to what this Court has said Section 28 U.S.C. 1915 means.

You’re not supposed to decide a case on the merit in this summary way, simply be — by reason of the fact that the petitioner doesn’t have enough money to pay a lawyer and a filling fee.

You’re supposed to decide it on the merits in the way you decide every other case on the merits.

Oscar H. Davis:

Well —

Potter Stewart:

That’s what these —

Oscar H. Davis:

— that’s where —

Potter Stewart:

— decisions upheld, isn’t that true?

Oscar H. Davis:

Well, I would differ from you and your statement, Mr. Justice Stewart, but I think I would state, and I would state it in a little different way, he is entitled to the same general treatment to which a — a non-indigent appellant or an appellant — an indigent appellant who’s been granted leave by the trial court would be entitled to.

And our position is that they would not, in these circumstances, be entitled, if the Court didn’t wish to give it to them to a full — full-dress oral argument, that is, if it came before the Court of Appeals in proper fashion, the Court of Appeals could summarily affirm those cases or dismiss them.

Now, unlike —

Potter Stewart:

How many — how many cases in which the fees have been filed as Court of Appeals did that?

Oscar H. Davis:

It — it’s —

Potter Stewart:

(Voice Overlap) any, does it?

Oscar H. Davis:

Because there isn’t any mechanism.

Potter Stewart:

There’s no procedure for it.

Oscar H. Davis:

But there is a mechanism under 1915 and that’s our position.

Potter Stewart:

But that’s just what the — this Court has held there should not be.

That there shouldn’t be a separate and different mechanism for pauper cases from which the — from what there is for (Inaudible) cases.

Oscar H. Davis:

I think they didn’t — the Court didn’t hold that it shouldn’t be a separate mechanism.

I think they held there shouldn’t —

Potter Stewart:

(Voice Overlap) —

Oscar H. Davis:

— be a different standard.

And — and I think — what I’m trying to say is that the standard is the same, the mechanism is — is different.

And the mechanism which — which exists for pauper — forma pauperis cases can occur in other cases.

In fact, there is a case in the Court of Appeals to which I’d like to draw the Court’s attention.

Potter Stewart:

I’m speaking as one, Mr. Davis, it wasn’t here when these cases were decided and who, on the other hand, was on the receiving on — on — of them and try to figure out the best way to — to exceed what we understood the Supreme Court would be deciding.

Oscar H. Davis:

Well, Mr. Justice Stewart —

Potter Stewart:

So —

Oscar H. Davis:

— the practice of Sixth Circuit is certainly a reasonable one.

And — and perhaps it’s a — it’s a practice which should be followed by other circuits in some of the situations.

But I do suggest that the — that the problem before the District of Columbia Circuit is a different problem because of the — the magnitude of their criminal appeals (Voice Overlap) —

Felix Frankfurter:

When you say there is no mechanism as to non-indigent as to regular fee paying of appellants, there’s a mechanism of a motion to dismiss (Voice Overlap) —

Oscar H. Davis:

There is a mechanism but it’s not used very often.

Felix Frankfurter:

No, that’s —

Oscar H. Davis:

That — that is my point, Mr. Justice, that there is a mechanism.

In fact, I — I want —

Felix Frankfurter:

The — the argument — the argument that would be irrelevant in (Inaudible) the duty of the Court of Appeals sua sponte to dismiss frivolous appeals.

Oscar H. Davis:

Well, it doesn’t —

Felix Frankfurter:

And I (Voice Overlap) —

Oscar H. Davis:

— get to know about them.

Felix Frankfurter:

— myself.

Oscar H. Davis:

It doesn’t get to know about them because it doesn’t have any practice like this Court’s conference before certiorari.

Felix Frankfurter:

What you’re saying is that this — I look at page 34 ordered by the Court for petition for leave to prosecute to appeal in forma pauperis is denied, the Court had sat upon consideration of the petition for leave to prosecute having duly considered Mr. Gressman’s able briefs and being confident, he couldn’t say more than he said in those memorandum.

We now decide the case on the merits that it’s frivolous.

Oscar H. Davis:

Well, we think that’s what it did, and I should point out that this was done by a three-judge court.

I should have said that because in some circuits, there is a procedure by which a single judge does it, and we think it’s very different where it’s done by a single judge who was after all not — not competent to — to pass on the merits.

Felix Frankfurter:

This Court dismisses on merits appeals that asked to be heard on — by plenary jurisdiction when the — when the Congress of the United States said appeals should be heard on plenary.

Oscar H. Davis:

Well, it doesn’t — very frequently, almost every Monday.

If I could close, Mr. —

Earl Warren:

Well, Mr. Davis, may I ask you, should there — should there be a different rule in the District of Columbia just because they have no more cases of this kind because by the same reason — reasoning, they have more judges to take care of that may have in other — other districts.

It isn’t as though we had the same number of judges in — in this — this Circuit as they have in others and therefore, they’d have to cut corners in order to get their work done.

The Congress takes that into consideration.

And they’ve got more judges to do their work with because they do have this jurisdiction, and shouldn’t they give — give these people the same consideration that they give in — in other circuits?

Oscar H. Davis:

We think the problem is within their discretion to determine.

And if — if their discretion was fairly and reasonably exercised in setting up this mechanism, and if — if the — the panels of the judges feel that in a particular case, they have given a full and fair review on the basis of the record and the issues presented to them, we don’t think that the Court should — this Court should require them to go beyond that.

If — if this is — if this is a fair procedure in — in the massive cases and is of one which is appropriate to the situation in which they face themselves.

Earl Warren:

But you’ve told us a little while ago that — that where the District Judge grants it, why, they — they don’t question it at all.

Oscar H. Davis:

Well, I think they have no authority to — under — under the law.

They — they cannot do otherwise under the law, so that it — it —

Earl Warren:

Well, if they can’t do otherwise under the law (Inaudible).

Oscar H. Davis:

Because this — 1915 says — says that where the District Judge has granted an appeal, he shall proceed it and the situation is different where the District Judge has refused the — to grant leave and then the Court of Appeals is — has asked in petition to do it.

Earl Warren:

We’ll recess now.