Porter v. Aetna Casualty & Surety Company

PETITIONER:Porter
RESPONDENT:Aetna Casualty & Surety Company
LOCATION:Florida General Assembly

DOCKET NO.: 604
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 370 US 159 (1962)
ARGUED: Apr 25, 1962
DECIDED: Jun 11, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – April 25, 1962 in Porter v. Aetna Casualty & Surety Company

Hugo L. Black:

Number — United States, Harry Clifford Porter, 604, Harry Clifford Porter, Against Aetna Casualty & Surety Company.

John G. Laughlin, Jr.:

Mr. Justice Black, may it please the Court.

I speak for the United States which is here as an amicus curiae in support of the petition and the petitioner and to the courtesy of counsel for the petitioner and he has allotted me 25 minutes of his time and has agreed that I might open the case on the part of the petitioner.

The case brings before the Court a question of statutory interpretation and application and the statute itself provides an exemption from taxation and suits by creditors of benefits payable and administered by Veterans’ Administration under the various benefit laws.

Perhaps that the outset should indicate the Government’s interest in this case.

The statute which is now before the Court is a derivation of similar statutes that have been on the books for the better part of the year.

Under current laws administered by the Veterans’ Administration in some 12 million individuals were on the roles as recipients of various veterans — or various benefits.

These are payable not only to the veterans but in giving instances to the widows, parents and children of veterans.

A very substantial sum of money is involved running into billions of dollars annually and the Government’s interest as we come here today is to what we hope is to keep faith with the congressional purpose not only in providing for these benefits but in providing that the benefits shall be immune from creditor suits as well as from taxation.

Coming to the facts of the immediate case, they date to 1952 when the petitioner was indicted for murder here in the District of Columbia.

A trial on that indictment resulted in his acquittal by reason of insanity.

He was thereupon committed to St. Elizabeth’s where he presently resides.

The murder with which he was charged took place while he was an employee of a certain realty company within the District of Columbia and engaged in that employment, painting certain apartment dwellings within the district.

The administratrix of the decedent’s estate brought a wrongful debt action against the petitioner’s employer and another party not relevant here.

And as that suit ultimately turned out, a settlement was agreed upon and some $16,000 was paid over to the estate of the deceased.

The suit was defended and the settlement was arranged by the respondent here who then under a subrogation clause of its policy; liability policy, obtained an indem — indemnity judgment over against the petitioner.

To obtain satisfaction of that judgment, writs of attachment were sued out against two savings and loan accounts within the district and a checking account in a local bank.

It is agreed at this point that the funds on deposit in both the savings and loan association and the bank are derived solely from disability compensation benefits paid by the Veterans’ Administration pursuant to veterans benefit legislation.

Writs — motions to quash the several writs were made and sustained by the District Court.

The judgment of the District Court was reversed by the Court of Appeals and then the Court of Appeals; the only issue was asked to the immunity of the savings deposits on file or with — with these two savings and loan associations.

The issue as to the immunity of the bank account was eliminated from the case.

There are three prior decisions of this Court under previous statutes preceding the one now in effect, 38 U.S.C. 3101 (a) which are immediately relevant to the issue now before the Court.

These three cases were decided in a span of a 3-year — a 6-year span between 1933 and 1939 and in brief, they hold, first of all the — that the immunity provided by the statute did not extend to permanent investments which in the Trotter case to which I am referring consisted of real estate and buildings thereon.

The second case to which I — in the order in which they were decided is Lawrence v. Shaw, where the Court held that bank deposits subject to the draft by the veterans’ guardian were not subject to taxation.

In other words, the immunity right about the statute from taxation carried over unto — until so long as these banks for these — the funds were on deposit with the bank.

The third and final case to which I refer is Carrier v. Bryant where government bonds and negotiable notes purchased with benefit moneys were held not to be immune from a creditor’s suit.

It was on the basis of these three decisions that the two courts below reached opposite conclusions and that there was a division within the — the Court of Appeals.

It is the Government’s position that consistent with the purpose not only of the benefit payments themselves but of the immunity which attends these benefits that the funds here in issue, savings account deposits with federal savings and loan association should be held immune from the suit by Aetna Casualty Company.

We would rely primarily upon the bank account decision of Lawrence v. Shaw where the Court made it plain that the congressional purpose could not have been to require that the recipients of these benefits carry them on their person or maintain them under the roof in order to prot — protect and continue the immunity that the statute otherwise plainly accorded.

Rather, the Court made it plain that the conventional modes of receipt and retention of moneys should be recognized and that the immunity did attach.

John G. Laughlin, Jr.:

We cannot, of course, equate a savings account deposit in a savings and loan association with a checking account in a commercial bank.

Nonetheless, in our judgment, the similarities between the two are such that the same result should obtain in this case as obtained in the bank case.

There are, of course, legal and very importantly legal distinction between an ordinary deposit or checking account deposit in a commercial bank and the savings deposits that are here involved.

There is, of course, a debtor-creditor relationship in a commercial checking account whereas in here, the depositor acquires a share and interest in the capital of the savings and loan association.

This, as I say, is a very important difference but it is in the difference that becomes important only in the event of an economic emergency.

And, over recent — over the — over in recent years, dating back since the financial crisis of the late 1920’s and the early 1930’s and with the advent of federal insurance not only of commercial savings accounts but federal insurance which extends to the very accounts that are here involved, the public has become more and more to regard these institutions as, if I may so — say so, the — a conventional mode of retention of the dollars that millions of Americans are able to put aside for some emergent use.

We think it does no great violence to either the principles of the Trotter case or Carrier v. Bryant if the character of these deposits are recognized even though they may technically be a — an investment in the technical and legal sense.

Unlike a bank deposit, these accounts — through dividends, they’re compounded usually on a quarterly basis by the savings and loan association.

A bank account on the other hand since 1933 has born no interest.

For what it may be worth, the Internal Revenue Service regards these dividends paid by savings and loan associations as interest and requires them to be so treated on the internal revenue returns.

And I should also point out insofar as interest itself is concerned, that in the Lawrence case, well, there was no interest accruing on the bank deposit that were there involved.

The Court went out of its way to indicate that it did not suggest that the mere allowance of interest would destroy or terminate the immunity that would otherwise attach to the benefit moneys.

There are of course other differences that need be recognized insofar as in distinguishing a savings account from a checking account, that is of course that since the accountable requires a share interest in the capital, he has at least a technical right to vote for the management of the association.

This I would question is — is a — a right that is often exercised due to the magnitude of the — and prevalence of the existing associations and the millions and millions of depositors that do have an interest in these accounts.

Further difference between the checking account and the savings account is that the checking account is always subject to the depositor’s draft whereas under the governing regulations of federal savings and loan associations, the depositor may be required to wait 30 days for his money for — for a redemption of his shares.

This, we submit, is like the interest distinction between savings accounts and bank accounts and in substantial one and should not defeat the immunity that otherwise would attach to these funds.

John M. Harlan II:

What would be the indication of these — of these shared stocks?

John G. Laughlin, Jr.:

In the share — in a share of — of ordinary corporate stock, Justice Harlan I think it will be controlled probably by your decision in Carrier v. Bryant which involved a government bond and negotiable securities and negotiable notes purchased out of these benefit moneys.

Potter Stewart:

It would not lose the —

John G. Laughlin, Jr.:

It would not be — it would lose — the exemption would terminate with the purchase of the bond.

This to our mind comports more consistently with the investment concept as it was first announced in the Trotter case and subsequently, articulated in Lawrence v. Shaw and coming to this, the negotiable securities so held in Carrier v. Bryant.

And it is the — it is the investment aspect that we do not deny exist in this case but we suggest that a rigid or mechanical approach to the solution to the question here involved by a determination of whether this is a dictionary, or in a legal sense, an investment that we would have to concede it is but this should not so bind the Court that it would defeat the otherwise manifest intent of — of Congress.

This was the approach taken by the District Court and I suggest the approach that the majority of the Court of Appeals took.

At the same time, the Court did recognize that the purpose of these benefits and of the immunity statute was to assure the availability of these funds for the maintenance and support of the — of veterans on the case of a deceased veteran, his widow or his children.

The distinction that the Court of Appeals found was that by reason of the fact that the Veterans Committee here first deposited these funds in a checking account which was of course immune and then at subsequent periods as the funds accumulated, he transferred them into the two savings and loan association substantial amounts.

Our view of — of this aspect of the holding below is that it is an — an unduly narrow and restrictive approach to the concept of maintenance and support as it presently has come to be in this day.

To be sure the sums paid out in many instances are very modest and would permit of no substantial setting aside of amounts in either a bank account or a savings account.

But we think that the prudent recipient of these invest — or these benefits should not be required to keep them on this person if he’s able to set aside a little bit every month or under his roof or in a checking account that should be entitled or should have available to him the modesty income that these savings association accounts provide.

They are in every sense as — as liquid and asset as in a practical sense as the deposit in a bank because of the record here and has been pointed out by the Court of Appeals, the — shows the funds while subject to a 30-day withdrawal period or nonetheless, in a practical sense available on demand must — the same as a deposit in a bank.

So these purposes that I have — that the Court recognized but be limited because it felt that the maintenance of a checking account and the conversion of some of the funds into the savings account, indicated that these were surplus funds over and above the needs and necessities of the petitioner here.

John G. Laughlin, Jr.:

We suggest in our brief that this is an unduly narrow and restrictive view of present day needs and point out that school, schooling for children, taxes, debt, an automobile or a home are probably — properly in the present day and the age considered as a maintenance and support or as of the — as a necessity of present day life and that to deprive these funds once they are deposited in the savings association of this immunity to that extent tends to defeat the purpose of that Congress had in mind in extending the immunity to these provisions.

John M. Harlan II:

What’s the amount of these deposits?

John G. Laughlin, Jr.:

Of the deposits, something less than $9000.

There’s $5759 in one account and $3078 in — in the second account.

But that Mr. Justice Harlan includes two dividends to the to the time of judgment and of course as the District Court held and that no one questioned the dividends as the crew are not within the ambit of — of the statutory immunity.

I think one brief word on the part of the Government is an order as with respect to the Wisconsin Bankers case since respondent suggest that the position that the Government take here and that it took in that case is someone inconsistent.

The Wisconsin Bankers case was an attack upon the Home Loan Bank Board and the charge being that it was by its regulations permitting these savings accounts and savings deposits.

Well as authorizing saving and loan associations to engage unlawfully in the business of banking.

We took the position in that case that by reason of the technical legal distinction between a — a savings depositor in a savings and loan association and a depositor in a savings account in the bank that the — and the fact that the depositors and the associations acquire an interest in the capital of the association, took it beyond the proscription in the statute against savings and loan associations accepting demand deposits.

And we do not say that the deposits here are demand of others in a sense that they are in a commercial bank and subject to draft in any sense but that the — even though they are, as a practical matter, subject to withdraw on demand, they are nonetheless subject to a possible waiting period and as I’ve earlier indicated that the distinction is really a practical significance only in the event of some economic emergency, it should befall the savings and loan association.

One other point that I would like to suggest here, and that is that these savings and loan associations in the present day number on an excess of 6300; they have 6300 throughout the United States.

They have deposits that run an excess of 62 billion dollars.

The public, I suggest distinguishes between these and a commercial bank only in terms of the rate of interest they are able to receive from the savings and loan association but cannot receive through a bank either checking account or a savings account in a commercial bank.

They come to regard them as a convenient and a secure institution whereby they can take dollars saved and on a systematic or whatever basis they can; set their money aside, assured in the belief that with federal insurance up to $10,000 they run no risk and that as a practical matter in the present day and as it has been for years and years, these funds are immediately available for whatever emergency or whatever need may arise.

We think that consistent with the public understanding of these institutions and the insubstantiality of the distinctions between these accounts and those that the Court or the account that the Court was concerned with in Lawrence v. Shaw that the ruling of Shaw case should carry over unto this area.

Hugo L. Black:

Mr. Laskey.

John L. Laskey:

Justice Black, Mr. Justices.

We differ — the Government’s position as to what is the distinguishing criteria which terminates the exemption.

We say that it is the only thing which is exempted is the payment of benefit and when the moneys, be it still in the form of money or whether it be transferred into some other form, bank account shares or any other forms.

When it ceases to have the character of a payment, it has lost its exemption because that exemption was only extended by the statute to the payment.

But the Government would read that that benefits acquired from the payment of veterans’ disability checks shall be examined.

I do not read the statute in that like.

I would think we should approach this case on the basis of the record made in the lower court.

In that record, we were dealing only with two building — one building and loan account and one savings and loan account for the purposes of our considerations that there is no distinction in the building and loan and the savings and loan account, they’re governed by the same author; same regulations.

We are not dealing here with a systematic deposit of the veterans’ benefit checks in a certain account or in the accounts which were attached.

The record will show from the Committee’s account which appears at page 15 of the record and on some of the following pages that the regular monthly disability checks in the amount of $225 were systematically deposited in the national bank checking account.

An account not here before the Court which was attached but as to which we are raising no question.

The Committee’s account further shows that at various times but on no fixed pattern, funds were transferred from that account in a lump sum $3000 in one case, $2000 in other and $1000 figures in others, incidentally, figures which are not consistent with an accumulation only of the payments or rather a payment deficit divisible into that sum which it did not.

But those funds were transferred.

When they reached the hands of the garnishee where they were attached, they were not payments of veterans’ benefits.

John L. Laskey:

They were a payment from the veterans’ checking account and were an investment by the veterans who bought the accrual of interest.

Indeed, one item with $2000 had been withdrawn from the building and loan account, placed back in the checking account in anticipation of the — of its use for payments of expert witnesses at the trial and then when that was — this necessity was dispensed with, it was again transferred to the building and loan account.

Could it be said that that transfer of that $2000 back again to the building and loan account and not — it then still retained as a character as the payment which had been an exempted and we submit that it could not.

The distinction between the relationships between depositors in building and loan accounts and the relationship between depositors and checking accounts and bank — and bank accounts of the checking account nature is a substantial and real one.

And in order to accomplish the results sought by the Government and by the petitioner in this case, it is necessary to rewrite the contract which was entered into between of the person who deposited — the veteran who deposited — deposited the funds in a building and loan or savings and loan account and — and that institution.

To carry that argument; the Government’s argument and the petitioner’s argument to its logical extension would not only rewrite the account for the benefit of the veteran and at the prejudice of the building and loan or savings and loan association but would also provide the means of a shop an unfair and an equitable discrimination between those depositors in the building and loan organizations who were veterans and those who were not because if you are to exempt those funds from attachment by a judgment creditors, you would necessarily have to exempt them from any other form of execution described in the statute either equitable or legal.

So, I think we all know that all building and loan associations are not federally insured or are not properly managed.

Some have come into difficulties and some in this immediate area are even now in the hands of receivers.

The Government’s position would require that depositors in that account in those associ — associations would be treated differently.

Veterans’ accounts would be exempt but the other depositors would have to bear the full burden of any loss because if the veterans accounted the exempt from attachment by a judgment creditor, it would be exempt from seizure by the receiver or the — the referee in bankruptcy or any other person seeking to enforce and carry out the liquidation or the salvation of that company.

I would like to deal for a moment with the Government’s argument for the widows and children as I understood it.

At page 17 of their brief that Mr. Laughlin has argued, urges that a woman receiving widow’s benefit on the veterans legislation must keep those moneys perhaps intended as a source of maintenance and independence in later life either on her person or under her rule.

The same type of an argument was made with respect to a child.

I submit that that is vicious argument that you do not find in the statute, any intention to exempt anything except the payment that the statute — it has a limited duration.

I find nothing in the statute which says that a veteran or a veteran’s widow or a veterans’ child could live on credit putting the veteran’s payments in a building and loan account and the judgment proof for necessities bought on credit that would follow.

The Government states that its position here is consistent with that taken in the Wisconsin Bankers case.

I do not concede that that is the fact.

I say in their brief in his case, that the only real difference between a savings account depositor and here we do not have a savings account depositor but I — I — our position would be the same in any event and the checking account depositor are that the former draw the little interest or dividend on his account and has to present his passbook.

These minimal differences are not, we submit, sufficient to deprive benefits proceeds of their identity when placed in a savings account.

Again at page 25, they say the differences between these two types of accounts, however, are technical and legal and are far outweighed by their similarities when the issue is viewed in the perspec — perspective of the benign legislative purpose of this Act.

However, in arguing the Congress with the position which they take here in their brief on — an — an objection to the application for certiorari in the Wisconsin Bankers case, they say, at page 7 of their brief in that case, “From these regulatory provisions, it is clear that whatever their similarities in name and practice and practical operations of the savings accounts authorized by the regulations are not the legal counterpart of a deposit in a bank and the relationship of holders to those savings accounts to the association is significantly different from the debtor-creditor relationship that exist between a depositor and a bank.”

They go on to say at the footer that same page, “Unlike petitioners, depositors however, are members of an association holding savings account paid for a share of capital that Section 5 (b) require and though they may withdraw their interest, they are subject to a waiting period as well as a proration of funds in the event of an emergency.

They are share owners not depositors.”

In concluding, they say our position is that the challenge regulations create procedures and legal interest significantly different in legal contemplation from the type of deposits proscribed by Section 5 of the Home Owners’ Loan Act.

John M. Harlan II:

What year was that?

John L. Laskey:

I beg Your Honor’s pardon?

John M. Harlan II:

What year was that?

John L. Laskey:

That was filed at the — the Wisconsin Bankers case was filed on November 15th, 1961.

It was decided by the United States Court of Appeals for the District of Columbia Circuit on the same day to this case.

This Court denied certiorari in the Wisconsin Bankers case, after the opposition by the Government had granted its appeal.

John L. Laskey:

The Home Owners’ Regulations had clearly set forth the legal effects of the relationships between the depositors; be they veteran or non-veteran and be they veteran incompetent or veterans who are competent.

They set them forth clearly and they specified that they are owners of share; benefit share, share interest; a capital interest in the organization.

They have voting interests, they have other interest too incidentally, as they aid in acquiring traditional capital accounts.

The institutions involved here and many others of like-nature, have made a practice of honoring withdrawals at the same time they are made but that does not change the legal effect or the legal relationship between the parties.

Those regulations are set forth at page 18 and 19 of our brief.

William O. Douglas:

18 and 19?

John L. Laskey:

Yes sir.

We started at little prior to that on page — page 17, they began by saying, “In order to provide local mutual thrift institutions in which people may invest their funds,” and they go on, “they know deposits shall be accepted.

“That’s what the Wisconsin Bankers Association is complaining about that they were in fact deposits, the Government there said, “No, they were not deposits, they were share interest.”

And they defined as the savings account, under the building and loan and — and savings and loan organization.They defined ad — admitting the monetary interest of the hol — holder thereof in the capital of a federal association.

And again, on page 19, was the — “The requirements with regard to withdrawals that the association shall then pay all withdrawals requested in accordance with such methods and procedures as to amounts and allotment of funds as to such purposes that shall be provided in the regulations of the — by the Federal Home Loan Bank Board in effect to date the request for with — withdrawal.

Holders of savings account for which application for withdrawal has been made shall remain holders of savings accounts until paid and shall not become creditors.

The situation which the Government would rewrite and recast that it would permit necessarily freedom of withdrawal of veterans’ funds since it’s quid pro quo.”

If the exception is extended, it must be extended with prescription against seizure of any kind, legal or equitable.

Set forth in the record, the particular exemplifications of those provisions in this case.

We ran into a little printing difficulty not through the Court’s regular printer but to our own and possibly to our method of submitting our material to him.

We had intended to set out the charter and bylaws of the Columbia Federal Savings and Loan Association in order as paginated in their pamphlet.

The pagination is set forth in the transcript of records beginning at page 37 and — and 44 — through 44 is not consistent and we accordingly had prepared and asked the Court to distribute to the Justices a proper reproduction of the same record material but with the proper pagination.

If there sets forth the specific matters which we have referred to and these are the specific regulations which are applicable as to this account in this case and which are in the record in this proceeding and are now before you.

I am unable to find a definition that was — what would meant at any time by the use of the term “permanent investment.”

There had been references to land and buildings, there had been references to shares of stock, there had been references to government bonds and savings accounts.

I can see no application of the term “permanent” to any type of — of investment such as they referred to which renders one distinguishable from the other in that event.

Permanent would be a matter of intent.

You will find in throughout the Federal Savings and Loan System a — a preference for long term deposits and they refer to a long term deposit as one in extending beyond two years.

Certainly, a — an — an investment which had continued for that period of time is just as much as a perm — of a permanent investment as is a purchase of a government bond which again maybe judicially noticed as readily cashable providing a ready source of funds in the event of need.

We’ve met that on the basis of this record which is not that of a savings account but is that of a building and loan account that there was no exemption but the only thing exempted by the Congress and the Congress have had ample opportunity to change it if that was its intent.

The only thing exempted was a payment and that when the particular property attached has lost the characteristic of a payment, its exemption is ceased.

Ethelbert B. Frey:

If the Court please.

Hugo L. Black:

Mr. Frey.

Ethelbert B. Frey:

I happen to be the committee attorney of the petitioner.

Ethelbert B. Frey:

I’ve been a member of the District Bar since 1912 and this Bar since 1933.

Now, the question before this Court is not on about a building and a loan association rules.

If my — where defendant cited this Bankers case.

The Bankers case was purely simply to the stop the building association from taking money like they’ve been taking it.

Now, this case goes right to the point whether or not this veteran who is injured in Korea is entitled to his benefits, his disability and whether or not Article 38 of the United States Code which absolutely be provides that no attachment of judgement either before or afterwards in equity otherwise shall file a lien against that money.

Now, the money that I received from Mr. Porter as his committee was deposited in bank and when my report went to the order to the court below, I was told under rules to put it in a saving account so that argument itself for the little interest to that idea.

That idea, the only expressed understanding with the Columbia Federal Building Association, if you look at my brief and — or my exhibits, I went in there and told them what I was going to do and I wouldn’t buy in any shares.

They said, “You don’t have to Mr. Frey.

You’ll withdraw that money out tomorrow if you put it in today.”

Those rules — those rules we have in emergency matters.

And I’ll say to the Court here that the banks in Maryland and at once — that have failed if they used that in an emergency matter, they wouldn’t have been caught swapping accounts or — or transferring money.

Now, this money that I put in bank for Mr. Porter was for his necessities and for his keep and for his rehabilitation purposes.

It was close to $6000.

From time to time it’s true I drew on that account or one occasion rightfully, I drew $2000 when Mr. Porter was going to be tried, they said he was forbad ready for trial on that graft.

I drew the money out of the bank with any hope of having Dr. Teplin, United States Psychiatrist.

Mr. Freddie and Dr. Gilbert, who is now dead, testified to come here from California in Wisconsin.

And then when I made an agreement with the District Attorney, the money was put back.

Now, this money that I have deposited in these associations, if the Court pleases, has never lost its identity.

It is still money, they had not even purchased of it — with it.

We haven’t bought stocks or bonds and if Your Honor will read the Lawrence case thoroughly and the Trotter case, the Court will find that in those cases, the criterion was where they bought real estate and stocks and bond, they’re examined but never a word about stock or shares in the Building Loan Association.

I think it’s common knowledge to this Court and as everybody else that the Building Loan Association today is the same as the bank.

You don’t need to wait any time to get your money out.

You can go in the there today and put $1000 in and tomorrow you’ll go in and get your thousand back.

Not the same thousand but of the same kind.

Now, Mr. Porter received this money; a disability fund where it is a deposit under an order of court below.

And then when he had accumulated with no dependence, assume equal to $1500, the Government under the law of 1958 or 1959 cut his disability of pension off completely.

Now, Mr. Porter hasn’t had a nickel since 1959 and that money was attached.

That money was attached in 1961.

And in December 1959, after the trial of Mr. Porter and he was — he was found out guilty, the hospital over there started to run a bill for his services over there which I think had prior or they already jdugment and secured after that against his estate.

It’s not only that, there’s other bills that are due; bills for bond are running on and bills for different things that he requires at the hospitals.

Ethelbert B. Frey:

He has had no money or whatever in order to buy the actual necessities because his money had been tied up.

John M. Harlan II:

Do you think that that illegal consequence follows —

Ethelbert B. Frey:

Sir?

John M. Harlan II:

Do you think that illegal consequence follows with the fact that his problem was investment that he used to —

Ethelbert B. Frey:

Your Honor that —

John M. Harlan II:

— (Voice Overlap) — against the question turned on to the argument that was made by this Committee or rather made my by the veteran’s son.

Ethelbert B. Frey:

Well if the Court pleases, I’m going to show you this and answer that question and had I put that money in the safe deposit box or some other way out or invested in something, they would have never known anything about it but under the Court rules and the court order, I had to comply with their request and if I did not probably been disbond.

John M. Harlan II:

That’s exactly my point.

Ethelbert B. Frey:

Where is your point again Judge, pardon me Judge Harlan?

John M. Harlan II:

Go ahead sir.

Ethelbert B. Frey:

Go ahead judge.

John M. Harlan II:

I was going to say that you did this as a matter not of his request but because your duty is committed in fiduciary, is that it?

Ethelbert B. Frey:

That’s right.

John M. Harlan II:

That is — your — your reward is a —

Ethelbert B. Frey:

Sir?

John M. Harlan II:

Your award and the man you represent is in the — St. — St. Elizabeth.

Ethelbert B. Frey:

Yes.

Now, I say this if the Court pleases that — that in my — in my brief, if you will read it, I said that I thought that it wouldn’t be long before Mr. Porter would be released or Mr. Porter was released being homeless on the 6th day of April and they couldn’t turn him lose because he hasn’t a nickel in world for a rehabilitation purposes or go to school or do anything.

And he only has rights to go out in the daytime and report back that hospital at night.

And I respectfully submit, if the Court pleases, that that Article 38 of the United States Code certainly protects him and his money.

I claim and I’ll always claim that the money that I received is still moneys whether it was in the building association, it is moneys and it’s still moneys.

And as such, the Article 38 of the United States Code certainly protects him in that respect.

And I ask this Court that our final request that the Court reverse the flagrant decision of the Court of Appeals below in this manner and sustain Judge Youngdahl’s opinion and ruling on the motion to quash.

If the Court pleases, that motion was filed to attachment and then a motion was filed to quash the memorandum and we argued that case in court and the Court had it under opinion for a long time before it decided and able.

Now here, we have a man that has lost his constitutional rights.

He has no nickel in the world, he can’t find a job and all of the money that I had saved for him under an order of court, not through me.

The Court ordered me to do that is being attached and held up and he can’t use it.

I thank you, Your Honor.