Rowland v. California Men’s Colony, Unit II Men’s Advisory Council – Oral Argument – October 06, 1992

Media for Rowland v. California Men’s Colony, Unit II Men’s Advisory Council

Audio Transcription for Opinion Announcement – January 12, 1993 in Rowland v. California Men’s Colony, Unit II Men’s Advisory Council

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William H. Rehnquist:

We’ll hear argument now in number 91-1188, James Rowland v. The California Men’s Colony.

Mr. Ching.

James Ching:

Mr. Chief Justice, and may it please the Court:

Section 1915(a) permits persons to proceed in forma pauperis upon the filing of a proper affidavit of indigency.

The issue today is whether associations or corporations may also apply and whether, therefore, they are persons under the language of the statute.

The relevant events concerning this statute are few and can be briefly described.

Prior to 1959, the in forma pauperis statute was limited to citizens, and prior to 1959, the case law is perfectly unequivocal.

Those citizens were only natural persons.

They were not corporations, and a fortiori, they were also not associations.

Sandra Day O’Connor:

Well, Mr. Ching, weren’t corporations considered to be citizens at least for purposes of Federal court jurisdiction?

James Ching:

The… corporations were considered citizens for the purpose of diversity jurisdiction.

They are not entitled to powers of immunity under the Constitution.

Consequently, there was some discretion in… according them various privileges such as the in forma pauperis.

The Second Circuit in two cases held that they were not to be afforded the benefits of the in forma pauperis statute.

Therefore, up to 1959, the application of the plaintiff in the court below would have been summarily rejected.

Anthony M. Kennedy:

Well, it would have been rejected in the Second Circuit.

James Ching:

It would have been rejected certainly in the Second Circuit with no–

Anthony M. Kennedy:

How do we know whether it would have been rejected in the Ninth Circuit, for example?

James Ching:

–Well, I would guess that the period of time between 1938 and 1959, in which no single case arose, indicated that there was some unanimity on the point.

I have no other thought about the nature and number of cases involved.

But in 1959, Congress, with the explicit, singular, and unequivocal intention of according the benefit of in forma pauperis to resident aliens and resident aliens alone substituted for the word, citizen, in the in forma pauperis statute the term, person.

Then for a period from ’59 to ’69, utterly no litigation at all on the point.

What this would indicate to me, in sum, is number one, the statute, whether referring to citizen or to person, never referred to artificial persons.

It only referred to natural persons.

Secondly, in the amendment in 1959, the language is we would extend the same privilege as is now afforded citizens to resident aliens.

Antonin Scalia:

That’s the language of what?

James Ching:

That is the language of the report, the Senate report, in the statutory history.

Antonin Scalia:

What about the House report?

Did that say the same thing?

James Ching:

I do not… I only had the Congressional News report.

James Ching:

I do not know.

However, drawn from this examination of the statutory reports, there are two principles: first, that the intent of the legislation was only to include another category of natural persons, residential aliens; and principle number two, that Congress has been extremely parsimonious in extending the benefit of IFP to any other groups.

Well, this brief summary, of course, compromises the core of the–

John Paul Stevens:

What did you call the principle that Congress only intended to–

James Ching:

–To parsimoniously extend the benefits of in forma pauperis.

John Paul Stevens:

–That’s a principle or that’s just an observation I suppose.

James Ching:

I guess it’s an observation.

It’s a generalization which I think is fairly drawn from the statutory history.

John Paul Stevens:

Well, has the Congress rejected from time to time suggestions to expand the in forma pauperis statute?

James Ching:

I do not know, Your Honor.

John Paul Stevens:

Well, then I don’t think you have any evidence for your supposition.

James Ching:

All right.

Well, in any case, the single instance in which they have expanded it with an enactment has been this 1959 amendment.

The core of the minority position is… takes note of the fact that in 1948 the section 1 of title 1 was amended to create persons… a definition of persons that included corporations and associations.

This would seem in light of the lack of any reference in section 1 to 1915 to be an irrelevant definition.

It is even more irrelevant in light of the qualification that is explicit in section 1, that unless the context is consistent with the definition of persons, it is not to be used.

William H. Rehnquist:

Well, it says unless the context otherwise requires, doesn’t it, in–

James Ching:

Unless the context otherwise–

William H. Rehnquist:

–Or unless the context indicates otherwise.

James Ching:

–Indicates.

Of course, the meaning of context is not spelled out, but surely context must at least include the events surrounding the amendment in 1959, as well as the cases from the–

John Paul Stevens:

So, you say context means more than the words of the statute itself.

Context means the environment for the milieu in which the statute was adopted?

James Ching:

–Certainly.

Yes, that is my point, Your Honor.

And the legislative history.

James Ching:

Certainly, Your Honor.

John Paul Stevens:

Section 1 then requires us to look at legislative history in every case to be sure it doesn’t otherwise require.

James Ching:

I would think so, Your Honor.

John Paul Stevens:

A statutory directive.

James Ching:

And since, in fact, we are attempting to implement the intent of Congress, then certainly we must understand what they mean if they use the word, person.

Antonin Scalia:

What does context not include?

James Ching:

I would not… I would think that the use of such a general term would not exclude much.

Antonin Scalia:

Anything?

Anything at all?

I mean, I don’t know why they just didn’t say then unless there is some reason to think otherwise–

James Ching:

And certainly–

Antonin Scalia:

–the word, person, means, you know, but they didn’t say that.

They said unless the context indicates otherwise.

James Ching:

–And there is nothing in section 1 to indicate what context means.

Antonin Scalia:

Well, I think the word, context, comes from the word, text.

Context.

It means the surrounding text.

James Ching:

Yes, and, con, would indicate with or adjoining to, and so–

Antonin Scalia:

There’s textual, there’s contextual, there’s extratextual.

I think context means context.

The passage in which the word is used, the surrounding statutory language.

Don’t you think that’s what it means?

James Ching:

–If that were so, that would indicate a restriction to only the statute which purported to define person in a separate and distinct manner.

The cases, the FTC case and so on, dealing with the use of person doesn’t seem to indicate such a narrow restriction.

Anthony M. Kennedy:

Well, really the first definition in the dictionary is that it is a connection of words that… excuse me.

The parts of a discourse that surround a word or passage and can throw light on its meaning.

So, under that definition… it’s the first definition… it would indicate that we look just to the statute.

James Ching:

Well, anything that would indicate its meaning.

Yes, I would think that you would look to the text first.

There’s no doubt about that.

Anthony M. Kennedy:

But now, I said gist of the statute.

That’s a plausible interpretation of context, is it not?

James Ching:

Yes, it certainly is.

David H. Souter:

If we don’t go beyond the text, do you lose?

James Ching:

No.

I do not believe that I lose if we are permitted to examine statutory materials related to–

David H. Souter:

What’s your best textual argument?

James Ching:

–My best textual argument is that which I led with; that is, there has been a consistent restriction to natural persons both in case law and in the bill.

David H. Souter:

Well, aren’t you getting beyond the text of the statute when you say that?

I mean, that’s your parsimony argument, and you have to go to… I guess you have to look at a lot of congressional history beyond this statute.

If you just look at the text, as Justice Scalia suggested, is there anything in the text that supports you?

James Ching:

Well, the… by inference, the… I’m hard put to give you an answer on that.

What about the requirement for an affidavit?

James Ching:

The requirement for an affidavit is, of course, tied up with the complications of a corporate identity.

Antonin Scalia:

It’s not normal to talk about a corporation making an affidavit, is it?

It says that you can’t get IFP status unless you make… unless the person makes an affidavit that he is unable to pay such costs.

James Ching:

Well–

Antonin Scalia:

Such affidavit shall state the nature of the action, blah, blah, blah, and affiant’s belief that he’s entitled to redress it.

I mean, I guess you could say that the corporation can make an affidavit through one of it’s officers, but–

James Ching:

–It could–

Antonin Scalia:

–it’s sort of a stilted use there, isn’t it?

James Ching:

–Well, it could not make it directly as implied by the plain meaning of the statute, and I would think that tied up with that is the inability to determine what the corporate assets are for the purposes of the litigation at hand.

So–

Byron R. White:

I suppose without the definition of person, the general definition of person, if that weren’t in the statutes, I suppose you would win.

James Ching:

–Yes, unequivocally.

Byron R. White:

Because you don’t usually call a… in common parlance, you wouldn’t call a corporation a person.

James Ching:

No, I would not think so.

Byron R. White:

I suppose the word, poverty, in the statute also helps you.

You don’t usually think of a corporation as making an affidavit of poverty–

James Ching:

Well, I–

Byron R. White:

–financial… or do you?

James Ching:

–I would not.

I hate this, but I really do believe that a bankrupt corporation could make an affidavit of poverty through its trustee.

Byron R. White:

We usually refer to impoverished corporations?

Byron R. White:

We refer to corporations with financial hardship, corporations that are insolvent.

James Ching:

Yes.

I mean, there are many other technical terms that would more accurately describe a corporation without funds to pursue litigation.

Byron R. White:

So, you don’t pin much on the term, poverty, in the statute.

James Ching:

I do not think it is as significant as the other point Justice Scalia made.

Antonin Scalia:

I suppose part of the context is also the fact that this statute is providing for treatment as an indigent and providing public funds to be used for purposes that otherwise people are required to pay for.

That’s the part of the context, right?

That… that’s how the word is used in that context.

James Ching:

Yes.

Yes, at least that range and intent of the legislature was–

Antonin Scalia:

And public charity is not usually accorded to corporations.

James Ching:

–The corporations and associations are not of the first concern in terms of public welfare.

Byron R. White:

Do you think that a bankrupt corporation that is bankrupt because it can’t possibly pay its debt, its assets are much less than its liabilities… do you think that would automatically mean that it could be… it could file an affidavit that is… that it is entitled to be treated as a pauper?

James Ching:

There is no reason to think that the bankruptcy… any of the prevailing tests for determining it bankrupt would automatically be imported into the in forma pauperis statute.

Byron R. White:

Well, a corporation might have… could be taking… could be put in involuntary bankruptcy or take voluntary bankruptcy even though it has an income of maybe 100,000 dollars a year.

James Ching:

Certainly, and the practical–

Byron R. White:

And yet, I don’t… I doubt if it would be granted in forma pauperis status, would you?

James Ching:

–I hesitate.

I hesitate to answer for the Ninth Circuit.

However, in all seriousness, I do believe income flow is one of the key provisions for determining in forma pauperis status.

William H. Rehnquist:

Well, there’s a difference also.

When an individual says that that person is unable to pay such costs, you’re talking about a person perhaps supporting themselves, getting food on the table, and that sort of thing.

When a corporation makes an affidavit that it’s unable to pay the costs, what factors does it take into consideration?

James Ching:

It is simply stating that it is unable to engage in the business for which it was created, and therefore, it would seem to me a lesser claim than that of bread on the table for an individual.

And surely, the in forma pauperis statute was more directed to the individual in dire straits than a corporation in dire straits.

Sandra Day O’Connor:

Well, now, Mr. Ching, in this instance, if we have an association of prisoners who by… I guess you concede they individually didn’t have any money.

James Ching:

I… the… one of the major problems with the case is the lack of development of facts upon discovery in this instance.

We do know of instances in which inmates have considerable money.

Well–

James Ching:

So, I would not concede that as a theoretical–

Sandra Day O’Connor:

–All right.

Let me ask you this.

Could the action have been brought as a class action with an affidavit of indigency by the–

James Ching:

–Individual plaintiffs.

–individual plaintiffs?

James Ching:

I would think so, Your Honor.

As a matter of fact, the complaint itself speaks of certification as a… of a class action.

I do not–

Sandra Day O’Connor:

So, it wouldn’t have been impossible for this group to have filed on an indigent basis, in effect, through the mechanism of a class action.

James Ching:

–Well, certainly, Your Honor, I think that they could have pursued a class action.

I think that’s what they should have done.

Anthony M. Kennedy:

But, Counsel, isn’t that… isn’t there a danger there that just because the named plaintiff is indigent, could he bring a class action in forma pauperis if he has got a bunch of Rockefellers in his class?

James Ching:

Well, Your Honor, the… I would think the IFP status would be granted for him, for the individual involved.

Anthony M. Kennedy:

For the… but then he sues on behalf of the whole class.

James Ching:

Yes.

Anthony M. Kennedy:

Whereas if you made him sue in the association, as he does here, you’d be… you’d lump all the wealth of the entire group together and they’d have to be without funds as an entity.

James Ching:

Well, that’s one of the tests that has been… that have been proposed, that is, lumping or–

Anthony M. Kennedy:

What I’m suggesting is that I think that you will have more in forma pauperis actions allowed if you allow class actions with just an indigent named plaintiff than you would if you looked at the assets of the entire class, which is what we would do in this case.

James Ching:

–Well, I suppose that would be true, Your Honor.

I mean, part of our concern is the administration of the courts and the volume of cases that arise.

In the instance where there is a certified class action, we at least have the confidence to know that there is an interest that is common to all the parties involved, and in addition, it greatly simplifies our need to discover individual statuses and individual capacities.

Antonin Scalia:

Can I bring a class action on behalf of all purchasers of AT&T stock, and just because I happen to be bankrupt, I can bring that class action on behalf of all AT&T stockholders in forma pauperis?

Is that really the law?

James Ching:

No, no.

I had suggested–

Antonin Scalia:

I thought that’s what you said, that so long as the–

James Ching:

–I had suggested that the individual would proceed and would, therefore, move for certification as a class action.

At that point, if the class is going to be maintained, I believe some inquiry as to the individual capacities–

Antonin Scalia:

–I see.

I see.

James Ching:

–of the members of the classes–

I see.

James Ching:

–would then proceed.

There would be a subsequent xxx.

Antonin Scalia:

Right.

That makes sense.

James Ching:

The issue of statutory interpretation–

John Paul Stevens:

May I ask you another question?

James Ching:

–Yes.

John Paul Stevens:

You were… suggested that if there hadn’t been this history, the word, person, would normally be read just to include individuals.

But I… just glancing at the rules, Rule 19 talks about joinder of persons needed for adjudication and so forth.

The whole language is all about persons.

You don’t think that excludes paupered persons.

James Ching:

Well, in that regard, I’m also looking at the limitation upon the definition of citizen which precede it in the very same statute and which has been… which had been accepted for a considerable period of time.

In light of that and the use… and the amendment, the explicit amendment, only to include resident aliens, I would feel that a common definition of person would be appropriate.

If there are no further questions, I would reserve the remainder of my time for rebuttal.

William H. Rehnquist:

Thank you, Mr. Ching.

Mr. Weisselberg, we’ll hear from you.

Charles D. Weisselberg:

Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court:

There are three main reasons why the Men’s Advisory Council may sue in forma pauperis.

First, under the plain and unambiguous statutory language, an association may proceed in forma pauperis.

Second, if this Court does decide to look to the legislative history, nothing in the legislative history is contrary to the plain language of the statutes.

And third, the statutory context, meaning the overall text, structure, and purpose of the in forma pauperis statute, does not require a restricted definition of the word, person.

Turning first to the statutory scheme, 1 U.S.C., section 1–

How do one and three differ?

Charles D. Weisselberg:

–I’m sorry, Your Honor.

Byron R. White:

How are one and three different of these reasons?

Charles D. Weisselberg:

Well, one… Your Honor–

Byron R. White:

The plain language is the plain language.

Charles D. Weisselberg:

–Yes, Your Honor, but I think 1 U.S.C., section 1 does have the phrase which counsels the court to look to the context, and what I mean is that–

Byron R. White:

Well, that’s part of the plain language, isn’t it?

Charles D. Weisselberg:

–Yes, Your Honor.

I would say–

All right.

Go ahead.

Charles D. Weisselberg:

–one and three are in that way related.

But 1 U.S.C., section 1 defines person to include associations.

Section 1 was on the books when section 1915(a) was amended to include persons.

Section 1 is Congress’ own dictionary.

It gives a mandatory definition of the word, person, because it is the definition that Congress itself has written.

In Wilson v. Omaha Indian Tribe, this Court construed the phrase, white person.

The Court held that Congress was aware of its own dictionary, and so when Congress reenacted the law using the phrase, white person.

Congress was fully aware that the phrase would be construed to cover artificial entities, as well as individuals.

Now, it makes sense–

Antonin Scalia:

Because it was the same Congress, after all, that enacted that definitional section.

Right?

Charles D. Weisselberg:

–Yes, Your Honor.

Antonin Scalia:

Was it really?

Charles D. Weisselberg:

Well–

Antonin Scalia:

How many years elapsed between the people that voted for that definitional section and the people that voted for 1915, as amended?

Charles D. Weisselberg:

–Well, Your Honor, the… section 1 was amended in I believe 1948.

Section 1915 was amended in 1959.

But I would point out that 1 year before in 1958, this Court decided the case of United States v. A&P Trucking, and in that case, this Court was interpreting a criminal statute that used the phrase, whoever.

Whoever, is defined, along with the word, person, in 1 U.S.C., section 1.

This Court construed the phrase, whoever, to include partnerships because partnerships were included in the section 1 definition.

So, just one year before section 1915 was amended, this Court decided a case applying Section 1 to construe a Federal statute.

And it makes sense for Congress to define standard terms in section 1.

That saves Congress from redefining those terms every time a new bill is passed.

But Congress can only rely upon the definitions in section 1 if this Court is willing to make those definitions mandatory.

Charles D. Weisselberg:

The petitioners’ claim here is that Congress was silent regarding whether an association may proceed in forma pauperis, but I would suggest the Congress spoke loud and clear in the statute.

In amending section 1915(a), Congress deliberately used the word, person, and Congress chose that word knowing that the word, person, has a specific standard statutory meaning.

The petitioners want that phrase, person, in section 1915 to be read as natural persons, but if Congress had wanted only natural persons to proceed in forma pauperis, it would have said so in the statute.

The statute would have said that natural persons can proceed in forma pauperis or that individuals can proceed in forma pauperis or that citizens and aliens can proceed in forma pauperis, or Congress would have taken the time to craft a specific definition of the word, person, just as Congress has done in a variety of other statutory schemes.

But Congress didn’t do so.

It used the word, person, which has a standard statutory definition.

Now, the petitioners rely quite a lot on the legislative history to the amendment to section 1915(a).

In response to an earlier question, I’d point out that the Senate report, which is republished in the U.S. Code and Congressional News, I think also reprints the House report.

It contains it in great detail so that the legislative reports from the two chambers are reproduced there.

And those reports do not say that person means only natural persons.

There’s a paragraph that’s two sentences long that’s entitled Purpose, and all that it says is that the purpose of the amendment is to change the word, citizen, to the word, persons.

Sandra Day O’Connor:

Well, Mr. Weisselberg, I suppose that under the old original statute that dealt with citizens back in 1892, that that didn’t include associations, did it?

Charles D. Weisselberg:

Well, there was certainly case law that allowed artificial entities of… namely, corporations to–

Sandra Day O’Connor:

Maybe a corporation, but I didn’t… didn’t the old dictionary law in force back in 1892 make clear that it didn’t apply to associations?

Charles D. Weisselberg:

–I don’t believe that the version that was in effect at that time included the word, association.

Sandra Day O’Connor:

So, we take it on the assumption that citizen then at least didn’t include an association, such as you’re representing.

So, when Congress changed citizen to include aliens, presumably it didn’t enlarge it.

Charles D. Weisselberg:

Well, it… several responses to that, Your Honor.

First, again, when Congress changed the statute and chose the word, person, which was then defined to include a category of people other than merely corporations and aliens, it specifically includes associations.

I also–

Sandra Day O’Connor:

Well, yes, but it also tells us to look at the context.

Charles D. Weisselberg:

–Yes, Your Honor.

Sandra Day O’Connor:

And if the context tells us that it didn’t include associations, I guess that–

Charles D. Weisselberg:

Well, Your Honor, I suppose I’d suggest that the context here does not exclude associations and does not counsel otherwise.

Perhaps I ought to address that.

I’d suggest that the Court consider context in the same way that this Court has construed the word, context, and looked at context in interpreting a number of statutory schemes.

There are a few cases that come to mind.

There is Department of Energy v. Ohio, and in that case, this Court interpreted the phrase, sanction, or the word, sanction, and the Court said that sometimes looking at a phrase in context gives a meaning that a phrase lacks in isolation.

And there the Court compared the use of the word, sanction, in several different subsections of the particular enactment.

So, I’d suggest that was an example of a court looking at the overall text of the statute to decide context.

Charles D. Weisselberg:

And here I’d suggest that context, thus, refers to the overall text of the statute and not to a legislative history.

And when one looks at the overall text and purpose of the in forma pauperis statute, there is nothing that would suggest in my mind that the statute ought to be limited to natural persons only.

William H. Rehnquist:

–I don’t know that that is the strongest argument I’ve ever heard, that if Congress were sitting down and thinking about this right now, and you said, well, do you want corporations, as well as natural persons, to be able to proceed IFP, you say yes, Congress would have said yes?

Charles D. Weisselberg:

Well, there are plenty of reasons why the Congress would have said yes and why the Congress deliberately used the word, person, in amending section 1915.

I think this Court has recognized in a number of cases that effective advocacy may be brought about through associations and through group litigation.

William H. Rehnquist:

Well, but we’re talking about corporations.

Charles D. Weisselberg:

Well, Your Honor, there are lots of… corporations are, of course, frequent litigants in the Federal courts, and it may well have been Congress’ intent to allow those corporations to continue to litigate even if they didn’t have the funds to support the litigation.

William H. Rehnquist:

What… supposing the secretary of the corporation or the president of the corporation is going to make an in forma pauperis affidavit, what does he take into consideration that will… what sort of corporate picture does he have to have before he can say that the corporation is unable to pay the costs?

Charles D. Weisselberg:

Well, I suppose initially, at the very least, the officer would Get out the assets and the liabilities of the corporation and list the income of the corporation.

I suppose that at a minimum though I’d point out that, of course, the statute–

William H. Rehnquist:

But he has to affirm.

He not only has to set out statistics, but he has to swear that the corporation is unable to meet the costs.

Isn’t that–

Charles D. Weisselberg:

–Yes, Your Honor.

William H. Rehnquist:

–What decision making process does he go through?

Charles D. Weisselberg:

I suppose he would look at the assets again and the liabilities of the corporation, see if there is a way that the corporation would have the funds to support the filing fee, and figure out the costs in that respect, Your Honor.

He’d have to go and determine what the filing fee would be and what the costs of the civil litigation would amount to.

But I would… I’d like to point out that I don’t think that process is that much more difficult than it is for an individual.

The in forma pauperis statute doesn’t give the courts the criteria that are used to determine whether an individual may proceed in forma pauperis.

William H. Rehnquist:

No.

Charles D. Weisselberg:

That’s something that–

William H. Rehnquist:

But with an individual, you know, a person presumably is thinking about food, shelter, some clothing, any liquid… you know, any cash at all, and it just doesn’t seem to me that a corporation ordinarily thinks in those terms.

Charles D. Weisselberg:

–Well, and that might be one reason why this is unlikely to be used by many corporations.

Perhaps it would help address the policy aspects of it by describing the Men’s Advisory Council itself in a bit more detail.

There are 10 dormitories in Unit II of the California Men’s Colony.

Antonin Scalia:

xxx.

What difference does it make?

I mean, the argument… I don’t care what the men’s dormitory… today it’s the men’s dormitory council.

Tomorrow it’s going to be some association of millionaires–

Charles D. Weisselberg:

Well–

Antonin Scalia:

–who simply haven’t put very much money into this association or corporation.

So, you have a very impoverished corporation composed of members who are very wealthy, and you would have to argue, well, a person is a person.

This is an association.

The association as an association is poor.

Charles D. Weisselberg:

–Justice Scalia, I disagree, and perhaps I can explain why.

The reason why I wanted to describe the Men’s Advisory Council a little… in a little more detail is that I think it’s an excellent example of a situation in which an association is bereft of funds and actually in this case bereft by action of one of the defendants, the warden.

But going back to the… your example, Justice Scalia, that of a corporation perhaps deliberately underfunded, the in forma pauperis statute gives the Federal courts and gives the district courts tremendous discretion in determining whether or not an organization or a corporation is indigent.

And if a corporation is underfunded, that’s a usual instance in which a court might look beyond the shell, that is, the structure of the corporation, to the assets of the individuals.

Antonin Scalia:

I don’t know what you mean by underfunded.

People bought stock in the corporation.

The business didn’t do very well.

Since it was a losing business, they declined to contribute any more money, but in fact, all of the owners of the stock are millionaires.

Is that underfunded?

It’s just a poor corporation.

There is no blame there.

It just so happens that it’s owned by millionaires.

Charles D. Weisselberg:

Well, Your Honor, I suppose I’d simply suggest that it’s a very rare instance when a corporation, even if it is bankrupt or going bankrupt, can’t spare the 120 dollar filing fee for an action in Federal court or funds for witness fees.

Antonin Scalia:

What about lawyers?

This section 1915 also requires that the court may request an attorney to represent any such person unable to employ counsel.

Now, counsel are very expensive.

You… do you think that in this context we should interpret that to mean corporations and associations, that the courts are going to appoint counsel to represent corporations?

Charles D. Weisselberg:

Well, the courts are free in their discretion I believe under that section to request counsel to represent an indigent association, just as the Ninth Circuit requested us to represent this indigent association.

Of course, that’s on a pro bono basis, as I think this Court recognized also in the Mallard decision.

Sandra Day O’Connor:

Mr. Weisselberg, could this action have been brought as a class action and affidavits of indigency supplied by named plaintiffs?

Charles D. Weisselberg:

I suppose that it’s possible that an inmate may have filed this action on behalf of a class of other indigent inmates at the institution.

Nevertheless, this association is one that was formed at the request of the warden with the specific purpose of representing the inmates to give them representation and a voice in the way the prison affairs are run.

This is the organization that exhausted administrative remedies.

This is an organization consisting of elected representatives from different dormitories.

So, this is a… an organization very well suited to bring this action.

And I think in the UAW v. Brock case, this Court recognized that it may be better in many circumstances for an organization composed of individuals to bring an action than it would be to proceed through a class action under Rule 23.

William H. Rehnquist:

Is there any way of construing 1915 to say that associations are included within the word, person, but corporations aren’t?

Charles D. Weisselberg:

Your Honor, I think using 1 U.S.C., section 1, all of the entities that are listed in that section would come within the meaning of the word, person.

William H. Rehnquist:

So, it’s either corporations and associations, or it’s neither.

Charles D. Weisselberg:

Well, I suppose initially I would look to 1 U.S.C., section 1 and consider all of the entities listed there to be persons if I suppose the Court were to think that for some reason the context of the statute indicates that only several of them–

Byron R. White:

xxx what an association is.

Charles D. Weisselberg:

–Yes, Your Honor, generally a collection of individuals.

Byron R. White:

You mean just anybody can say… a bunch of neighbors get together and they just say we are an association?

Charles D. Weisselberg:

Well, Your Honor, associations are formed in many ways I suppose, but the question here isn’t whether associations per se can litigate in Federal court because they can.

The only question here is whether indigent associations may proceed under the in forma pauperis statute, and to the extent there are questions of standing–

Well, but isn’t–

Charles D. Weisselberg:

–and such, they–

Byron R. White:

–But you have to recognize that… even you have to recognize what an association is–

Charles D. Weisselberg:

–Yes, Your Honor.

Byron R. White:

–to get in forma pauperis status.

And it would, of course, mean that people, for instance, landowners wanting to fight a zoning change, could form an association and not fund it and claim indigent status and get a lawyer appointed.

Charles D. Weisselberg:

Well, in that… several responses to that, Your Honor.

First, I suppose many different groups can form an association, but again if that sort of an association sought to proceed in forma pauperis, the district court would be free to look at the assets of the individual members of the association.

But–

William H. Rehnquist:

Why is that?

Charles D. Weisselberg:

–They’d be free to do that.

William H. Rehnquist:

Why would it be free to look at the assets of the individual members?

Charles D. Weisselberg:

Well, Your Honor, the courts have said simply that there’s a lot of discretion, enormous discretion, in the judges in terms of how–

William H. Rehnquist:

So, one judge could look at the assets of the individual members and another judge would not, and either one would be correct?

Charles D. Weisselberg:

–Well, Your Honor, I think that the discretion will have to be guided by some future decisions as this area of law develops.

I mean, again–

William H. Rehnquist:

But what is the rule in your view that ought to be enunciated?

When an association files for IFP–

Charles D. Weisselberg:

–Yes.

William H. Rehnquist:

–may a court consider the assets of the individual members or only those of the association?

Charles D. Weisselberg:

Well, I think initially the court ought to simply look at the affidavit that is submitted on behalf of the association.

Charles D. Weisselberg:

In the Adkins case, the Supreme Court case–

William H. Rehnquist:

I don’t think you’ve answered my question.

Charles D. Weisselberg:

–Well, I think initially the court ought to look to the affidavit which describes the assets of the association, but the court would want to know, in essence, the purpose of the association, whether it was formed in some way–

William H. Rehnquist:

Well, now–

Charles D. Weisselberg:

–perhaps to avoid paying fees.

William H. Rehnquist:

–why don’t you give me an answer to the question and then explain?

Does a court look to the assets only of the association, or does it look to the assets of the individual members?

Charles D. Weisselberg:

I believe the court should look to the assets of the association only unless the materials give the court a reason simply to look further, say, a suspicion that the organization was not adequately funded by the members, something like that, Your Honor, some indication from the papers.

Byron R. White:

Suppose it’s plain the association hasn’t got any money, but it’s also just as plain that the members of it do.

Charles D. Weisselberg:

I’d see no reason why the court couldn’t look to the members of the association for the funds.

Byron R. White:

So, you only look to the association exclusively if you find that it has so much money of its own that it doesn’t deserve in forma pauperis.

Charles D. Weisselberg:

Well, Your Honor–

Byron R. White:

If it doesn’t have any money, then you look to… always look to the members.

Is that it?

Charles D. Weisselberg:

–Your Honor, I would say the court should look to the affidavit first which would normally set out the assets of the organization, and it would probably, I would assume in this circumstance, give an indication of the purpose from the organization and from that, Your Honor, the court would have some understanding of the purposes of the organization, whether it was–

Byron R. White:

Well, what about a partnership that has filed its articles of partnership according to law?

Charles D. Weisselberg:

–Ordinarily, Your Honor, in a partnership, one looks to the assets of the members of the partnership.

The court would be free to do so.

Byron R. White:

Well, a fortiori, I suppose you ought to look to the… because a partnership is more of a… is treated more as an entity in more circumstances than an association I suppose.

And yet, you say look to the assets of the partners.

Charles D. Weisselberg:

Well, you know, again, perhaps this is a good instance in which a court wouldn’t look past the assets of the organization.

I mean, in this case, the organization consists of elected members from the prison who were formed by… at the request of the warden with a purpose of addressing administrative problems within the prison itself, and under those circumstances, it would be difficult to say that individual elected representatives, people who are serving because the warden wanted the inmates to have a voice, should be forced on their own to pay the assets even if they were able to gather the funds.

I mean, in this case the warden prohibited the organization from collecting funds.

The record clearly states that the organization couldn’t have an account, couldn’t collect funds through a fund raiser of any type.

So, you have an organization which was formed to represent the inmates and was made indigent by one of the defendants in the action itself.

So, I would think this is a good example of a case in which a court would look at the assets of the organization, the bona fide purpose of the organization, and not look further than that.

Antonin Scalia:

I assume you think the same about corporations as you do about partnerships and associations, that you look to the stockholders?

Charles D. Weisselberg:

Well, Your Honor, I would think that the courts are very free to borrow from general principles of corporate law when one pierces the corporate veil.

Antonin Scalia:

No, but that would mean you normally wouldn’t look to the stockholders.

Unless there’s some special malice or fraud or something involved, you don’t look to the stockholders.

Antonin Scalia:

So, it’s enough that the corporation is impoverished.

That’s–

Charles D. Weisselberg:

I would say that in general, yes.

But, Your Honor, I don’t want to–

Antonin Scalia:

–Suppose I form a corporation to do a public interest litigating functions, public interest litigation firm, only its causes, the causes it wants to litigate, are very bad causes, so it can’t raise any money.

It raises very little money.

No problem, right, because it will be able to proceed in forma pauperis and even to have the court appoint counsel.

Charles D. Weisselberg:

–Well, I think the court–

0 xxx.

Charles D. Weisselberg:

–I think the court would want to look and see if the person who formed the organization did so having funds on his or her own and simply underfunded the organization.

Antonin Scalia:

Well, now, but there’s no fraud involved here.

I thought you said normally you don’t look past the corporation unless the usual reasons that you pierce the corporate veil.

There’s nothing underhanded about setting up a corporation with very small capital.

There’s nothing evil about that.

That’s perfectly valid.

There’s no fraud.

Charles D. Weisselberg:

Well, Your Honor, I mean, under those circumstances, I assume the court would look to the assets of the organization.

Antonin Scalia:

So, then whenever you have a poor corporation, you do look behind… you pierce the corporate veil.

Charles D. Weisselberg:

Well, no.

I’m sorry, Your Honor.

I thought I said that the court would look initially to the assets of the corporation, and if there was a reason under generally accepted principles of corporate law to look past the assets of that organization, the court would have the discretion to do so.

Antonin Scalia:

Well, we’re just going around again.

As I say, under normal principles of corporate law, you don’t pierce the corporate veil unless there’s some fraud.

Charles D. Weisselberg:

That’s correct, Your Honor.

But frankly, I know the court has… and we’ve taken an awful lot of time discussing what may appear to be this practical problem, but in general I am not at all certain that the courts will have difficulty assessing when organizations can go in forma pauperis.

And I don’t really that this is something which will come up much.

I mean, frankly, the Southern District of New York decided the Harlem River case 15 years ago.

In that case, the district court held that associations and corporations are persons within the meaning of the in forma pauperis statute.

I think this Court can take note of the fact that the Southern District of New York is a district which has quite a number of corporations and associations, and yet, since the Harlem River case, no case has reached the Second Circuit on this issue.

There’s no other reported case in the Southern District of New York.

Charles D. Weisselberg:

I don’t know that this is something which is going to come up often.

Also, I would point out that if organizations are bringing lawsuits on behalf of individuals, it may well be that there would be a reduction of litigation in the Federal court because an association suit may replace suits of many individuals.

So, first, I don’t know that this is something which will cause a problem for the courts, and I don’t know that it will come up very often at all.

I’d also like to point out the in forma pauperis statute, section 1915, doesn’t even give guidelines as to… assess the indigency of individuals, and yet, the courts have managed to fashion their own rules to determine when individuals can proceed in forma pauperis.

And the courts have developed that jurisprudence and have not had difficulty in developing it.

And I’d suggest that the courts, if associations or corporations do occasionally sue under this in forma pauperis statute in the future, will have no difficulty developing that jurisprudence either.

I know that the petitioners have suggested that legislative history means context and that the Court ought to look to legislative history.

I’d suggest that context means overall text and purpose of a statute, and that if this Court looks to the legislative history in this case, it does it for the same reasons that the Court ordinarily looks to legislative history, and that is if the statute is deemed ambiguous in any respect or if there is an argument that interpreting the statute literally would frustrate the intent of the legislators.

I think that the language of the statute is clear.

The statute is not ambiguous.

Section 1915 says that persons may proceed in forma pauperis, and 1 U.S.C., section 1 says that persons include associations.

So, it’s not an ambiguous statute and one should not look to the legislative history under that… for that reason.

If there is a claim that interpreting the statute literally would frustrate the intent of the legislators, I think this Court in Union Bank v. Wolas said that a party making that argument has an exceptionally heavy burden to meet.

Byron R. White:

What would you say if the committee report says we know we’ve used the word, person, in this statute, but we have no intention that that word, person, means what the general definition of person is–

Charles D. Weisselberg:

I think that–

Byron R. White:

–in another statute?

Charles D. Weisselberg:

–I think that would be a much harder case for me, Your Honor, and that might be a circumstance in which a… the legislative history would indicate otherwise.

But we don’t have that at all here, Your Honor.

Byron R. White:

You think the legislative history has to say that in order to make a difference.

Charles D. Weisselberg:

Yes, Your Honor.

I think it does, and it doesn’t say that at all here.

The legislative history contains some references to aliens, and it may well be that some legislators were motivated to amend the in forma pauperis statute to allow aliens to proceed in forma pauperis.

Antonin Scalia:

You acknowledge, though, that legislative history is relevant within… it is part of the context.

Charles D. Weisselberg:

No, Your Honor, I don’t think that it comes–

Antonin Scalia:

Well, you just did.

You just said that.

Charles D. Weisselberg:

–No.

What… I’m sorry, Your Honor.

What I meant to say is the Court considers legislative history, in essence, for two reasons: one if the statute is ambiguous, and this statute is not ambiguous; second, if a party makes a claim that interpreting the statute literally is absurd or would lead to absurd consequences, or that it was contrary to the–

0 xxx.

Charles D. Weisselberg:

–thwart the intent of the legislators.

That’s a circumstance in which this Court has in the past–

Byron R. White:

Well, you said it would be a much harder case if the committee report said we don’t intend to apply the general definition of person–

Charles D. Weisselberg:

–Yes, Your Honor.

Byron R. White:

–and we don’t intend to include associations and corporations.

And you said that would make a difference.

Charles D. Weisselberg:

I said that would make it a much harder case, Your Honor, because–

Antonin Scalia:

If that’s xxx, you should say no, it wouldn’t make any difference because it’s still not context.

No matter how clear it is, it’s not context.

xxx context–

Charles D. Weisselberg:

–Your Honor, what I’m saying… what I mean to say is that I don’t think that context includes legislative history.

I think if this Court looks to legislative history, it does for the other reasons–

John Paul Stevens:

–Well, then there wouldn’t be any harder case than my example.

Well, sure it would be a harder case because you have to overcome the argument that your reading is absurd, and that’s what you saying.

That’s what you’d look at to see if was absurd, and you’d say no–

Charles D. Weisselberg:

–That’s right.

John Paul Stevens:

–that it’s harder to that extent.

You got one more hurdle to cover.

Charles D. Weisselberg:

That’s right, Your Honor.

John Paul Stevens:

There’s no inconsistency in your position.

You’re making alternative arguments.

Charles D. Weisselberg:

Well, all I wanted to point out is that I think that a party that’s making the argument that interpreting a statute literally has an exceptionally heavy burden to meet and it is so heavy that that argument failed in Griffin.

It failed in Mansell v. Mansell.

It failed in Ardestani, and it must fail here.

Well, if there are no further questions, I–

William H. Rehnquist:

Thank you, Mr. Weisselberg.

Mr. Ching, you have 12 minutes remaining.

James Ching:

Yes, Your Honor.

I have two brief, very brief, points.

The first is this counsel point which crops up again.

James Ching:

If, in fact, we have to take corporations and associations simultaneously because of the definition of section 1, then it means the 19… under provisions of 1915, each of those will have to have appointed counsel.

John Paul Stevens:

No, it doesn’t at all.

The statute doesn’t say he must appoint counsel or even he may appoint counsel.

James Ching:

Certainly–

John Paul Stevens:

The section says he may request an attorney–

James Ching:

–Exactly right.

John Paul Stevens:

–to represent any such person, but the lawyer can say no.

James Ching:

And my point is that corporations never appear except through counsel, and a fortiori, neither can associations.

There is internally–

Well–

James Ching:

–an inconsistent provision–

John Paul Stevens:

–Neither do individuals generally appear without counsel.

James Ching:

–Well, in forma pauperis individuals appear without counsel all the time, my point being that if the general rule regarding representation of corporations is followed through, the statute does not adequately address the special needs of corporations and associations to appear–

Byron R. White:

Well, that’s just a different rule.

That doesn’t mean that they can’t be… have in forma pauperis status.

All it means is that you can have it, but in order to get into court, you got to have a lawyer.

James Ching:

–Yes.

Byron R. White:

Bring your lawyer.

Tell your lawyer that you’re broke and he should–

–Meet you at the courthouse.

James Ching:

Meet you at the courthouse, yes.

Byron R. White:

He should come with you.

Well, he got a lawyer here without the help of the court, didn’t he?

Or was he appointed by the court?

Your opponent.

James Ching:

He was appointed by the court.

By the court, oh.

James Ching:

Pro bono.

My point is that under the provisions of the statute–

John Paul Stevens:

He’s shaking his head.

John Paul Stevens:

He shouldn’t do that during your argument, but he–

[Laughter]

James Ching:

–And so am I because I was appointed by the court without authorization other than that.

But the only point I make is if the statute is worded in terms of discretionary appointment of statute… of counsel, that is inconsistent with the concept that associations or corporations could be in forma pauperis because they must appear through counsel.

John Paul Stevens:

No, but many of these in forma cases, there are volunteer associations of lawyers, pro bono groups that do volunteer legal services without the judge intervening.

They draft the complaint and so forth.

And that could have happened here whether, in fact, it did or not.

James Ching:

Well, it was a simple point well-refuted.

I’m prepared to submit the matter.

William H. Rehnquist:

Thank you, Mr. Ching.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.