Lurk v. United States

RESPONDENT: United States
LOCATION: Grace-New Haven Community Hospital

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 366 US 712 (1961)
ARGUED: May 04, 1961 / May 05, 1961
DECIDED: May 29, 1961

Facts of the case


Media for Lurk v. United States

Audio Transcription for Oral Argument - May 04, 1961 in Lurk v. United States

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

Earl Warren:

-- versus United States, Mr. Davis you may continue your argument.

Oscar H. Davis:

Mr. Chief Justice, may it please the Court.

In the time remaining to me, I should like, if I may, to make a few more comments on the threshold in forma pauperis question and then to pass on to the merits of the questions involved in Judge Jackson sitting at the trial of this case.

What I would like to say on the issue of in forma pauperis appeals, I mentioned yesterday and that is in on our view, the standard of review given in these cases is no different from that to which a paid appellant or an indigent who has been granted leave by the trial court is entitled.

The only difference is that in those cases, the issue on the merits does not come before the Court of Appeals ordinarily until after argument.

The judges don't know about the cases.

They don't have the kind of conferences that this -- this Court has, but that does not mean that if the issue did happen to arise at a preliminary stage, at some interlocutory stage that comparable action would not be taken.

Now we have in a case cited in our brief for another point, an example of that which I would like to tell the Court.

It doesn't happen to be a criminal case, it's a civil case but it bears on -- on the issue.

It's the Boomhower case, 220 F.2d 488.

It was in the Court of Appeals of the District of Columbia about five years ago.

There, the appellant, the issue on the merits was very similar to the one here.

Judge Robert Wilkin of Ohio, after he'd retired for disability had sat in the District Court here and the -- and the appellant claimed that he had no right -- a judge retired for disability had no right to sit in another circuit and the appeal was taken on that ground.

Well the appellant apparently did not file a full record and the appellee made a motion to dismiss the appeal, not on the merits, but on the ground that the record was not in -- full one and not proper for the consideration of the Court of Appeals.

Well, what the Court of Appeals did was to dismiss the appeal not only that ground, but they said, we go on to the issue on the merits and since we find nothing of merit in it, we will dismiss the appeal on both grounds, on the ground that the record wasn't properly presented to us or a full record and also on the merits.

And I present that as an instance of a case which happens to have come before Court of Appeals at an interlocutory stage and -- and which the Court of Appeals acted on the merits as we think is done in these forma pauperis cases here.

And I'm told, though I cannot cite you specific instances that in the District of Columbia Circuit, there had been cases in which an injunctions pendente lite, where an appellant goes to the Court of Appeals to seek an injunction pendente lite that the Court of Appeals, a three-judge panel Court of Appeals, hearing that injunction pendente lite has said, your issue on the merits has -- your issue has no merit at all.

We will dismiss the appeal or summarily affirm at this stage.

I'm also told that in a -- in an immigration case, again I don't happen to remember the name, that the Second Circuit in the deportation matter where an application was made to the Second Circuit for a stay of deportation, the Second Circuit did the same thing.

They went into the issue of the merits.

They said there's nothing to it.

We will summarily affirm the judgment of the District Court and therefore, it was unnecessary to consider the issue of a stay.

Now, I -- I mention all these instances in order to indicate that the -- that the difference is that in the -- in the ordinary case, the prepaid appeal, I'll say, the issue doesn't come before the -- the Court of Appeals until after argument -- until argument of the merits.

But if it should happen to come, the Court of Appeals would be entitled to and apparently would do the same thing that's done here and at this point I want to specifically to deny that from our point of view, a statement which Gressman made yesterday.

From our point of view, the Court of Appeals is not limited in relation to dismissing an appeal, to deciding only that the appellant has raised issues which are unreviewable.

We don't think that's true at all.

We think that the Court of Appeals can either dismiss an appeal where there's no absolutely no merit to it or it can summarily affirm and if it's not limited to so called nonreviewable issues.

Earl Warren:

Well Mr. Davis, how can you say it's the same when they're in the -- the court's in a better position to dismiss and appeal that is taken in the ordinary way after the briefs are filed, but before argument on the ground that is frivolous and -- and presents no real issue than it is when -- when the defendants through appointed counsel in this way, makes his initial representation?

Oscar H. Davis:

What I'm saying Mr. Chief Justice is that in this case and in other comparable cases, the -- what the defendant has done through his appointed counsel is not a mere initial representation.

He has gone as far as he really could and that the three judges of the Court of Appeals can say that we are satisfied on the materials that have been presented to us in this case, which is a simple case and on the issues which have been presented to us that we don't need anymore argument just as this Court does when a motion to affirm is filed in a direct and sometimes even in a certiorari case where it affirms or reverses without further argument.