Sanks v. Georgia – Oral Argument – December 08, 1969

Media for Sanks v. Georgia

Audio Transcription for Oral Reargument – November 18, 1970 in Sanks v. Georgia
Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia

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Warren E. Burger:

Number 266, Sanks against the State of Georgia and others.

Mr. Padnos.

Michael D. Padnos:

Mr. Chief Justice and may it please the Court.

The issue presented in the Sanks case is quite different than the issue in the previous case.

The issue presented to the Court today is whether the State of Georgia may constitutionally create a judicial procedure which by the terms of the statute discriminates against all tenants and in favor of all property owners in the state.

The issue is thus whether a state can divide all of its citizens into these two categories and discriminate in the manner presented in the statute.

The operation of the statute has been extensively set out in the materials before the Court.

I might also say that it has been considered before, thus this statute has been considered before in the case of Williams v. Shaffer.

As the Court is aware, this is a statute under which landlords and big tenants by going to the marshal of the court taking out a bond which they want, which cost $6.00 and without any further proceeding or whatsoever, tenants are evicted from their premises.

The only way a tenant can arrest these proceedings is by filing with the Court a counter-affidavit and with that, an amount of bond which the statute doesn’t even stipulate to guarantee that the landlord will not lose either his money or double his money at the final determination of the issue.

The question these statutes, these statutory provisions present first go to the heart of the notion of due process.

For the Georgia statute permits landlords to assert rights in a way that’s completely different from the rights the tenants have.

I think it’s important to emphasize that this statute affects all landlords and all tenants.

And it doesn’t matter whether they are individual or corporate.

It doesn’t matter whether the tenant has a valid claim or has no claim or whatsoever.

It doesn’t matter whether the tenant is scrupulous and totally disrupted.

Everybody is affected by this statute.

This Court has previously dealt with an issue which we feel is directly on point in the Sniadach case.

The Sniadach case which was a due process case like this one involved the taking of property of a person before there was any court hearing.

And that’s the crucial question: may a statute take away somebody’s property without a court hearing?

In Sniadach, the Court held that it could not do so.

And in many ways, this case is even a better case than the Sniadach case.

We feel we’re completely within that case.

The court need break no, no ground to decide in favor of the tenants in the Sanks case.

We have a much narrower case than theirs.

For example as Mr. Justice Black pointed out in the Sniadach case, their, there was a question of whether the action taken — that led to the case being brought in was a final disposition of the matter.

In this case, there is no issue of that.

It’s very clear that once the tenant is out, that’s a final disposition of that matter.

There was also a question in the Sniadach case that whether the matter involve was de minimis, that question was raised.

There’s no question about this case being de minimis.

Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia

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Michael D. Padnos:

Again, the tenant is out on the street.

That’s the end of the issue.

There was also a question in that case is whether the tenant had — whether the parties to that case had demonstrated poverty and whether they were actually going to be affected by the operation of the statute.

Here, there’s a specific judicial finding in the lower court opinion of indigency and that it was impossible for the tenants to obtain the bond.

They will be affected by the statute indeed.

They would be affected where the action of the court not held up by these proceedings.

Potter Stewart:

I noticed in your brief Mr. Padnos, you in the statutes involved, you give 61-303 that I gather this proceeding has begun under 61-301?

Michael D. Padnos:

Yes sir.

Potter Stewart:

And that is not an action for money and cannot be?

Michael D. Padnos:

Yes sir, that’s correct.

Potter Stewart:

It’s a — which of course Sniadach did it long on money judgment.

Michael D. Padnos:

Yes sir.

Potter Stewart:

This is an action only for possession by the landlord?

Michael D. Padnos:

Yes sir.

Potter Stewart:

And only upon certain limited grounds, is that correct?

Michael D. Padnos:

Well, the fury of the statute is that only one tenant is holding over.

May the — may a landlord go into court under this statute.

But in fact, under any conditions or no conditions where the landlord can’t go into court —

Potter Stewart:

Well, he has to be on the court and he asked to take an oath.

Michael D. Padnos:

Right.

Potter Stewart:

Make a statement under oath in court, is he not?

Michael D. Padnos:

Yes sir.

Potter Stewart:

Then what?

Michael D. Padnos:

He has to make a statement under oath that the tenant is either holding over or always — I believe it’s that he owes money to the landlord.

Warren E. Burger:

Holding over beyond the lease.

Michael D. Padnos:

Holding over beyond the term of his lease hold.

And as Judge Williams pointed out in the lower court, the tenants in this case are tenants at will and indeed, that’s a good illustration of the problem with the statute.

The tenants or tenants at will, therefore under the law, they’re entitled to a 60-day notice to vacate and theoretically, the landlord can’t do anything against them, can’t take any action to evict them until he is given on the 60-day notice.

But it doesn’t work that way and what happens is the landlord can go in under any conditions.

Now, as you point out Mr. Justice Stewart, it certainly would be possible for a tenant later on to bring an action for false eviction and indeed, Georgia Supreme Court makes the same suggestion.

Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia

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Michael D. Padnos:

But that doesn’t do a tenant any good once he has been evicted.

Again, as you point out that the issue involved here is not money.

The issue involved is possession and that’s what the statute’s all about.

Potter Stewart:

Is this an old statute?

Michael D. Padnos:

This statute was first enacted in 1827 and has been periodically modified since then.

But nothing in substance is really changed since 1827.

It’s a curious and acronism.

They’re just is in the statute in the country in which tenants are subjected to such a rigorous and immediate eviction and landlords are given such gracious privileges as the Georgia eviction statute it.

Indeed in thinking about asking other people to be submit amicus brief in the case, we couldn’t think of going any place else because nobody else has a statute like this.

We’re just unique in Georgia in having the statute.

I think it’s important when talking about due process in the Sniadach case to make it clear that we don’t feel that Sniadach was an aberration in the court’s thinking.

Sniadach was in complete context with what the court’s been doing for a long time.

Indeed in Hovy v. Eliot again, which was 70 years ago, the court there also took the position that not only notice was necessary in order for a due process, but also an opportunity to heard.

The usual requisites as Mr. Justice Harlan said in the Sniadach case, the usual requisites of due process are noticed in the prior hearing.

Indeed, there are some wonderful languages in the Hovy case where the court really get quite upset about the procedure in that case which did not afford an opportunity for a hearing and said that a judgment issue done in those conditions wants all the attributes of the judicial determination.

It is judicial user patient and oppression and can never be upheld where justice is justly administered.

This case we feel is quite like.

There has been notice but there is no opportunity to be heard unless the tenant presents a bond which in our case certainly, our tenants are never able to present to a court.

Byron R. White:

Would you say that it would be wholly unconstitutional for the state to require the tenant to pay rent pending the outcome of the suit?

Michael D. Padnos:

No sir.

As a matter of fact, that’s what we do in our cases.

We’ve sort of invented a procedure in these cases.

We have applied to the courts for rules “nisi” as it’s called in Georgia and we do pay our rent in the court.

Indeed in this case, in the moment case —

Byron R. White:

Even if you had — even if you claim a valid defense —

Michael D. Padnos:

Yes sir.

Byron R. White:

To the payment of rent —

Michael D. Padnos:

Yes sir.

Byron R. White:

Or even if you claim that rents already been paid.

You put it — you pay it in the court?

Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia

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Michael D. Padnos:

Well, we haven’t had a case such as the latter one but we do have cases where the rent is in contest.

Indeed everyday, we always pay the rent in the court.

And as the Georgia Supreme Court, when this was argued before them said “How can you do that? There is no statutory provision for that.”

And indeed, they’re right.

But the lower court have taken the position that that’s fair and reasonable that the contested matter be put into the court and then will decide who gets it at the end.

So, we’ve always paid our rent in the court and it’s being paid in at the moment case which —

Warren E. Burger:

Well, have they ever expressed that in terms of the apparent equity power of the court?

Michael D. Padnos:

Well sir, it’s not – actually, we’re not before an equity court, we’re before a civil court which has no equity jurisdiction.

It’s just —

Warren E. Burger:

There’s none in Georgia.

No equity jurisdiction in this whole civil court?

Michael D. Padnos:

No sir.

Warren E. Burger:

You have a separate equity court?

Michael D. Padnos:

Separate equity court which also has other powers, but a separate —

Warren E. Burger:

Have they been expressed this mechanism in terms of inherent judicial power?

I suppose they must have had something like that in mind if they were accepting it.

Michael D. Padnos:

I think they have something like that in mind.

Warren E. Burger:

Or was it by stipulation of the parties where no judicial discussion was involved.

Michael D. Padnos:

I think it’s — the way its work is a judge is just issued an order, so stating and saying the parties will pick — that’s the only conditions under which the judge is —

Byron R. White:

Not and the foregoing the bond.

Michael D. Padnos:

Foregoing the bond, the —

Byron R. White:

And the Supreme Court of Georgia says that’s nonsense, that’s nuts.

Michael D. Padnos:

But yes sir, but even since then, it’s been operating this way.

Byron R. White:

In the lower court?

Michael D. Padnos:

In the lower court.

Byron R. White:

But not in the Supreme Court?

Michael D. Padnos:

No sir.

Nothing’s going on with the Supreme Court.

It may be improper to say so but many people think that it’s unconstitutional statute and have been giving us the benefit of the doubt on that question.

And so, we’ve been allowed to bring cases in the lower court.

Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia

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Michael D. Padnos:

And the judge is always kind of just looked down and says “Well, I shouldn’t be doing this, but I’m going to let you file it anyway.”

That’s a bit the way it’s worth.

Warren E. Burger:

That’s the way equity developed in the first place, didn’t it?

Michael D. Padnos:

But we have excellent lower court judge that support the county.

What is this provision for — the bond for double the rent.

Double, what grand or what length of time?

Michael D. Padnos:

Sir, you could tell us that you would make a major edition to Georgia jurisprudence because nobody has any idea whatsoever.

The statutory language is double the rent reserve to stipulate it to be paid.

That doesn’t say that was owing at the time.

It doesn’t say that might be owing later and indeed as the briefs —

But one sentence that says, “Future double rent that tell the tenants renders possession.”

Michael D. Padnos:

Well, one court interprets it in that way and did the Fulton County Civil Courts until we begun to present these cases.

The Fulton County Civil Court interpreted that to mean, future double rent.

And as far as I know where for legal aid society is not council in the cases, they may still do so.

They take a year’s rent because the clerk has just decided that six months is the amount of time that this case may last and then therefore, they double that and they require every tenant to pay a year’s rent.

Byron R. White:

But your point would be the same whether it with the bond perceive a man or what you for rent?

Michael D. Padnos:

Yes sir.

Byron R. White:

To the bond?

Michael D. Padnos:

It’s the bond.

It’s a fact that all tenants must pay.

The law —

Byron R. White:

There’s no denial of equal protection between the rich and the poor in terms of whether it’s single or double or quadruple.

Michael D. Padnos:

Could be.

Well —

Byron R. White:

I mean not if you’re an indigent.

Michael D. Padnos:

Not if you’re an indigent.

In this case, there not is, but —

Byron R. White:

Which you claim to be.

Michael D. Padnos:

Which we claim to be, and —

Byron R. White:

And you have a finding?

Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia

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Michael D. Padnos:

There is a finding.

Yes sir.

Judge Williams’s opinion on page 38 of the appendix, there’s a specific finding of indigency.

The issue that we present to the Court is the due process issue.

It seems to me that on this case, there’s so many different ways we can go.

The statute is wrong for so many reasons.

There so many defects in the statute.

But — just — in order to present the simplest issue, I present to the Court the due process issue which is just obviously wrong on other cases, on common sense, on decency and on the law.

We could also argue the equal protection cases.

We feel it’s a clear violation of equal protection between landlords and between tenants.

I could get into the question of equal protection between rich people and poor people but I don’t even think we ever need to reach that issue because the statute violates equal protection simply by landlords and tenants.

That Your Honors is the essence of our case.

What does the Court mean on page 42 that it could have gone into equity in dealt the remedy — next to the last paragraph of page 42.

Michael D. Padnos:

The Court there list two very specific situations when we could go into equity.

Where there is no landlord-tenant relationship, I believe is one of them, if the relationship of landlord and tenant does not exist and the acumen is unable to post bond, and the second one, if the landlord had tempted to oust the tenant who is complaining with the terms of his lease.

But the equity courts don’t want these cases and we find it very difficult to get into equity court because there is the separation of jurisdiction.

Landlord-tenant cases are civil court cases.

At least in Fulton County, everybody recognizes that and acts accordingly.

The Superior Court which is out Court of equity doesn’t wish to have these cases and always says, “Go find your remedy in civil court, that’s where you belong.”

Georgia.

Michael D. Padnos:

That’s one of the other problems.

I should also say that unlike Connecticut, I was not too clear of the Connecticut situation.

In Georgia, the bond is not waived for both.

There is a Georgia Supreme Court opinion that says you can’t waive the bond.

And again, the lower Court judges who just sort of been clearing their throats and looking in a different direction and allowing landlords to waive the bond when they wish to come in.

But as a general rule, there’s not supposed to be able to do that.

But in the essence, the Georgia legislation, do they get this thing issued?

Yes sir.

Bill passed to Georgia Senate last year and was up before the House in the last day of the session and just nothing came about — I feel certain that the legislature will act in the 1970 term.

Well this case will become moot?

Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia

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Michael D. Padnos:

Well sir, my certainty of what the Georgia legislature will do, I would like to rely on that.

Warren E. Burger:

You seem to be having an ambivalent position on that.

You first suggested that you thought it would ask of — I thought you were saying that the next session you got, it would pass?

Michael D. Padnos:

Well I think I was substituting hope for a certainty.

I’d certainly hope that we will have a better law than this.

Thank you.

Alfred L. Evans, Jr.:

Mr. Chief Justice Burger and may it please the Court.

While Mr. Padnos did not in his oral argument, deal with the poverty question, it is undoubtedly raised in the briefs.

Therefore, I would like to say a few things right at the outset.

First of all, not every owner of rental property is a wealthy slum landlord nor is every owner of rental property, a public authority or governmental agency.

In Georgia, many and I dare to say most landlords are very ordinary people who themselves have to meet mortgage payments if they desire to continue to be owners of rental property.

Now, the relationship between the owner of the property and the man who has a possessory or use right is based upon contract.

In lease contracts as in contracts generally, the agreement is deemed to include all statutory provisions going to the subject matter of the contract unless the parties by stipulation of the agreement waived the statute.

In Georgia, for over 140 years, a lease agreement has been deemed to include the agreement by the tenant that if he doesn’t pay the rent or if he holds over or if he is a tenant at will or by sufferance, he has agreed that the landlord has the rights granted by Georgia’s dispossessory statutes.

Appellant’s constitutional contentions are based on equal protection and due process under the Fourteenth Amendment.

I shall address myself first to equal protection and presently come to due process.

Looking at equal protection, I might start out by observing that the mystique of the word’s equality and equal protection are somewhat like the trinity.

It’s much easier to accept by faith than to understand.

Yet I think, if there is to be a meaningful discussion on equal protection or equality, we must determine what kind of equality we’re talking about.

There are as I see it two types, one is equality of treatment.

This is a sort of a numerical equality.

The other type of equality is equality of result which is a proportional equality.

The distinction is really quite important for the simple reason that the existence of one will invariably negate the presence of the other to illustrate, college tuition at a state university, there is equality treatment if there is a standard tuition charge.

That is equality of treatment.It is a numerical equality.

However, it is obviously of denial of equality if you use the approach of equality of result.

To have equality of result, you would have to in effect deny equality of treatment by providing that one student must pay for something then another student does not have to pay for, obviously, denial, equality of protection — excuse me, of treatment.

Now the first equality, equality of treatment is the traditional approach used by the legislatures and Courts.

I’ve given the example of tuition at a state university.

Other examples would be sales and excise taxes, payment of gas, water, light and utility charges.

Bond posting requirements for public officials to enter into office assumed the duties of their office.

Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia

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Alfred L. Evans, Jr.:

All of these things are based upon equality of treatment.

There is no exception based upon the result to an individual, his financial means.

This same approach has been traditionally used by this Court and I think all other Courts that the decisions which I have read in connection with fiscal requirements for narrow situations are narrow proceedings were involves access to the Court.

I’m emphasizing for a very narrow type of proceeding.

Cases of this Court would include of course Union Guano and Cohen versus Beneficial Loan.

In Cohen versus Beneficial Loan, the situation unlike the situation here involved the complete denial of access to the Court of the owner of stock if he didn’t have a certain amount, and this Court held that there was no denial of equal protection there.

Byron R. White:

I take it you — do you think that a person has a constructional right presented defense on that trial?

Alfred L. Evans, Jr.:

I would say to present a defense in a Hovy type situation, yes, of course.

You have considerable problem in the present case is who is presenting the defense, who is seeking access to the Court.

We would maintain that under Georgia procedure, it is in actuality; the tenant who seeks access to the Court.

The proceeding does not go before a judge ordinarily.

The landlord goes down, he swears out an affidavit, it goes to the sheriff and the tenant is notified that he must within so many days vacate the premises or he will be evicted.

There is no judicial procedure.

It is the tenant to gain the —

Byron R. White:

Well, that determination, that determination of one of these proceedings, isn’t it possible that the landlord gets a judgment for rent?

Alfred L. Evans, Jr.:

In this possessory proceeding?

The landlord can get a judgment for rent, yes.

Byron R. White:

Or double?

Alfred L. Evans, Jr.:

Yes sir, that is true.

Byron R. White:

Well, it seems me he has resorting to the Courts to get a judgment, isn’t he?

Alfred L. Evans, Jr.:

This is only if the tenant takes it before a judicial officer.

If the tenant does not resist the eviction —

Byron R. White:

He filed it, doesn’t he?

Alfred L. Evans, Jr.:

Excuse me?

Byron R. White:

The landlord files the case doesn’t he?

Alfred L. Evans, Jr.:

The landlord files an affidavit, but it does not — it is not an adversary proceeding at this point.

Byron R. White:

And if the tenant doesn’t even answer, the landlord can get a judgment, can he?

Alfred L. Evans, Jr.:

It’s really not so much a judgment as just the sheriff will go down and notify the person to evict.

It is not an adversary proceeding.

Maybe that would clarify it.

Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia

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Alfred L. Evans, Jr.:

It is not an adversary proceeding unless and until the tenant files a counter affidavit.

Warren E. Burger:

But if you used that theory to define an adversary proceeding, then no case in which to go up judgment represented.

It would be an adversary case that they really are, aren’t they?

The default case is much adversary is a contested one who in terms of the potential.

Alfred L. Evans, Jr.:

Of course in Georgia in the default case, you still usually have to prove damages which would be a little different.

Warren E. Burger:

But here, the affidavit is accepted as the proof.

I would assume the rationale of that is that if the man filed the false affidavit in a dispossessory action, he’d be subject to the penalties of perjury, would he not?

Alfred L. Evans, Jr.:

Among other things, he will be subject to that penalty.

And when I come to due process, I will go into the remedies of the tenant, where there is a wrongful eviction.

I think that really deals with due process more than equally protection.

Warren E. Burger:

But does it help you much to describe this as a non adversary proceeding at the early stage?

Alfred L. Evans, Jr.:

I think it is significant because as I said, I think the general assembly of Georgia can validly take a common or practical view point.

This is not a very broad proceeding.

It’s limited to vary narrow grounds, all of which should be easily within the mind where the knowledge of the tenant.

He should know whether he has paid rent.

He should know whether he is holding over.

It’s not all that complicated.

I think in this context, it is safe to say, it becomes an adversary proceeding when the tenant —

Warren E. Burger:

As soon as he wants to assert a right, then he must — then he converts it into an adversary proceeding?

Alfred L. Evans, Jr.:

I would say yes sir.

That point, it becomes an adversary proceeding.

Warren E. Burger:

Can you dispossess for other than holding over or non payment of rent supposed damage and waste to the property?

Alfred L. Evans, Jr.:

No sir.

This would be a different procedure —

Warren E. Burger:

And it is another civil action, would it?

Alfred L. Evans, Jr.:

Yes sir.

Hugo L. Black:

Is it like unlawful to detain her on (Inaudible)?

Alfred L. Evans, Jr.:

I haven’t explored that statute recently in Georgia.

I have discussed the first equality, which is equality of treatment.

The second sort of equality and now, we’re talking equal protection has to do with trying to attain equality of result.

Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia

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Alfred L. Evans, Jr.:

This is seen in such items as a progressive income tax and I would conceive that it’s also seen in the right of indigent prisoners to secure access to judicial machinery.

That’s the line of cases starting of Griffin versus Illinois.

This test is less favored probably impart because it involves subjective value of judgments as suppose to the equality of treatment which is an object of test.

Now, moving to due process, due process I think has to do with essential fairness.

That’s what this Court has generally set in the past.

One test is whether shocks the conscience.

Now I think if we are to be fair in judging the fairness of Georgia’s dispossessory proceedings, I think we have to examine this requirement both in the context of history and in the context of the existing landlord-tenant relationship.

In our brief, we point out that a common law the situation was one where the landlord could use such force as was necessary to evict or wrongfully possess tenant.

The tenant on the other hand was not without his rights of common law.

He had an obvious right on contract for breach of the contract where in the situation where the dispossession was wrongful.

In addition, he had an action in tort, and he could recover punitive damages in the tort action.

In addition in the proper case should he be able to prove fraud or some other proper equitable grounds, he could go into a Court of Equity.

Now, the statute which the appellants attack her in large part, it’s interesting to note was designed to help the tenant.

It did away with the self help right of the landlord while at the same time preserving all of the common law rights which the tenant possessed.

Thurgood Marshall:

And it also gave to the landlord the right to use the sheriff.

Alfred L. Evans, Jr.:

Yes sir.

Thurgood Marshall:

Which he didn’t have a common law?

Alfred L. Evans, Jr.:

No, he did not have this at common law, but I think the answer to that is that all things being considered the chance of injury to a tenant would be far less where dispossession is by a disinterested party such as a judicial official or the sheriff.

And by the way —

Thurgood Marshall:

The sheriff is not disinterested.

He is a direct representative of the state.

He is using the full force of the state and the full force of the state is put behind the landlord.

Alfred L. Evans, Jr.:

Yes sir, this is correct.

Thurgood Marshall:

In a non-adversary proceeding.

Alfred L. Evans, Jr.:

Yes sir, in a non-adversary proceeding.

Thurgood Marshall:

And you see nothing wrong with it?

Alfred L. Evans, Jr.:

Not in the context because I think we might come to it right now.

What are the interests balance here?

I agree, this is a harsh remedy.

But I don’t think it’s unfair.

Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia

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Alfred L. Evans, Jr.:

It may be harsh, but I don’t think it’s unfair.

Because what is the balancing, what are the equities balanced here?

On one hand, you have the admittedly harsh effects of dispossession.

I’m not denying that’s harsh.

On the other hand, this injury is not irreparable.

It can be remedied through the usual common law norm of an action after the fact of the injury.

This is the normal common law approach.

The tenant can go into tort and recover punitive damages.

He can sue in contract.

He has remedies.

Now conversely, if there is no protection such as this bond for the landlord, he is at to be without any remedy, particularly, if the tenant is indigent.

If the tenant truly is indigent, how do we protect the landlord from his peculiarly loss?

Thurgood Marshall:

But why couldn’t a landlord bring him in to Court before hand and have at your word, adversary proceeding?

That would take time wouldn’t it?

Alfred L. Evans, Jr.:

It would take time and there would be loss of rent.

Thurgood Marshall:

And money?

Alfred L. Evans, Jr.:

There would be loss of rent to the property owner who may have to meet a mortgage payment.

This is why the Georgia procedure is to require a bond to protect the landlord because his lots —

Thurgood Marshall:

I’m not arguing at this point of bond.

I’m arguing at one point, adversary proceeding.

Why couldn’t we have the adversary proceeding before the man is kick out then afterwards?

Alfred L. Evans, Jr.:

One adequate procedure undoubtedly would be, a rapid adversary proceeding undoubtedly in a small state, an urban state, this would be the preferable means of handling the situation.

I can only point out that Georgia is the largest state east of Mississippi.

In many counties, the Superior Court has the two terms a year.

And it would require complete revamping of the present judicial system in many rural areas to —

Thurgood Marshall:

What do the other rural states do?

Alfred L. Evans, Jr.:

Some as Indiana has a statute quite similar to Georgia’s.

They also require —

Thurgood Marshall:

Who else?

I think it’s only one more, I forgotten the name over the search.

Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia

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Alfred L. Evans, Jr.:

I believe there are two options.

Thurgood Marshall:

Well, I mean, it seems to me that Georgia is no different from 47 states.

Alfred L. Evans, Jr.:

Well sir, as I understand, the test of due process, it does not require uniformity of response or treatment of the given situation by legislature.

It requires that the treatment be reasonable.

What I’m trying to argue is the treatment here is reasonable.

In view of the different equities being balanced, this is not a situation such as Griffin where it’s a fee to the state versus personal liberty.

This is a case where it is — the balancing of economic interest of two classifications of private citizens; one, the dispossession.

True, it is harsh, but can be remedied by an appropriate judicial action where the dispossession is wrongful.

On the other hand, if the tenant is allowed to stay in possession throughout the trial presumably throughout the appeal, how would the landlord ever recouped his loses?

He can’t.

Byron R. White:

Just because some Court might say that this bond requirement is illegal that the denial of equal protection doesn’t mean that the state would be also be disentitled to have some massive protection for the landlord like requiring the payment of rent during the proceedings.

Why is it that ample protection would — why wouldn’t that be ample protection to the landlords saying that the bond requirement is bad, doesn’t mean that tenants don’t need to pay rent?

Alfred L. Evans, Jr.:

Mr. Justice White, in a failure to pay rent situation, I would think this probably is quite adequate.

However, it would not be at all adequate in a hold over situation where the landlord wants his property back.

You may have a hire use for it.

It would only be adequate in one.

Byron R. White:

What kind of cases is this?

Alfred L. Evans, Jr.:

This is a failure to pay rent situation.

Byron R. White:

Well, we don’t need to talk about the other two?

Alfred L. Evans, Jr.:

Well also, there was no bond requirement in this case either.

So perhaps, but yet we are talking about the bond requirement.

There was no bond required in this case and I might point out —

Byron R. White:

But there was no bond required because the lower court held the statute unconstitutional.

Alfred L. Evans, Jr.:

Yes, sir that is true, but they did —

Byron R. White:

And the Supreme Court, it says that there should be a bond requirement, right?

Alfred L. Evans, Jr.:

I would, yes sir.

That is absolutely correct.

Byron R. White:

All right, so the issues here —

Alfred L. Evans, Jr.:

But I would say the —

Byron R. White:

About the bond — about the bond, it’s not about the requirement to make the tenant pay rent.

Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia

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Byron R. White:

It’s the bond requirement that’s here.

Alfred L. Evans, Jr.:

The bond requirement is here.

Yes sir, I would —

Byron R. White:

And you say it’s a quietly is involved to — for a state to say that a person who can afford to put up a bond may litigate with the landlord is evicted.

But to the person without money may not litigate his differences with the landlord in a Court even if he pays his rent while his doing it.

Alfred L. Evans, Jr.:

If the landlord is also considered to have a right to property which shall not be expropriated, I would say that is reasonable.

Perhaps not in a case — well, whether it’s the statute is designed.

Byron R. White:

What expropriation is there if the landlord’s property, if the tenant wants to present what might be where there to anyone would say that on the phase of the pleadings, this is a good defense as the landlord’s claim, and the tenant while his litigating is willing to pay rent.

Now tell me, what practice the landlord in a failure to pay rent case is expropriated?

Alfred L. Evans, Jr.:

In a failure to pay rent situation, if that is the only issue, if it is not going beyond that where the landlord just frankly wants to repossess his property, I would say that this would be adequate for the protection in this one case.

Byron R. White:

At this case?

Alfred L. Evans, Jr.:

But the statute is designed for three situations not just one.

And we think that looking at three situations; the statute is designed to cover everything.

Byron R. White:

Well, that’s reasonable.

Georgia Court has held that the statute is valid in this case.

Alfred L. Evans, Jr.:

Yes sir, it did.

Mr. Evans may I ask, Mr. Evans suggested that a bill have been introduced to the past but I think he has one of the houses of the Georgia legislature.

And had it done something with the statute?

Alfred L. Evans, Jr.:

No significant development was the passage in the last session of a bill authorizing payment of the cost bond rather than a bond for any set lengthy period.

As I read the new statute, it would be perfectly, the tenant — again, this is discretion of the lower court.

But as I read the new statute, the lower court would have the discretion to allow, say double the rent being paid monthly if the rent is $50.00 a month that every month the tenant could pay $100.00 into Court.

As I read the new statute, that would be an authorized procedure.

How does that differ from this situation?

Alfred L. Evans, Jr.:

It really doesn’t essentially because for this reason, the bond, amount of the bond is really left to the discretion of the local court.

It’s a matter of whether the Court’s discretion is to how much bond is required.

That’s the only difference?

Here, the penalty is fixed by the statute, double the rent.

Alfred L. Evans, Jr.:

Yes sir, that’s the penalty.

But what I say, it is indefinite.

Now that you have two statutes involved, the bond posting requirement merely states that you must post bond for the damages which maybe recovered.

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Alfred L. Evans, Jr.:

You have to look to the other statute to see what the damages are.

And that statute provides it shall be doubled the amount of the rent involved.

And of course, if you are tied up in litigation for six months is could be fairly substantial.

Although, under the new statute, I do think it ca be pay on a monthly basis paying double the monthly rental.

Thurgood Marshall:

Mr. Evans, suppose the rents did along the first, and on the second, the landlord files his proceeding and it so develops that money comes in on the second after he files it.

The tenant’s in trouble isn’t he?

Alfred L. Evans, Jr.:

Mr. Justice Marshall, this would depend on contract whether there have been what the contract provided.

Many contracts —

Thurgood Marshall:

Contracts that are payable on first period.

Alfred L. Evans, Jr.:

Yes sir.

I would say that the tenant would be in trouble.

Thurgood Marshall:

And he has to go, now, he has to go to Court now and put up his double amount of money, right?

Alfred L. Evans, Jr.:

Yes sir.

He would have to pay post bond.

This does not mean he looses all remedy.

Thurgood Marshall:

What remedy would he have?

Alfred L. Evans, Jr.:

He would possibly, if there is a fraud involved or I don’t know the end of the situation.

Thurgood Marshall:

No, no fraud they made on.

Alfred L. Evans, Jr.:

If the landlord desires to hold — it’s a contractual situation.

The landlord, if he desires to hold a person to contract, I think has the right to hold the person to the contract the same as any other contracting party.

Thurgood Marshall:

And that’s to require him to go to Court in order to remain in the property?

Alfred L. Evans, Jr.:

Yes sir.

Thurgood Marshall:

And to put up, double the amount —

This is what the tenant — Mr. Justice Marshall, this is what the tenant agreed to when he entered into a lease contract, unless he could stipulate that provision away.

Well, suppose the contract said that the party, second party is always pushing — party, second party claims all of his due process rights under the Constitution.

That’s his contract.

Would you enforce it?

Alfred L. Evans, Jr.:

I beg to say — on that swip, I would not try to know sir.

On the other hand, I think rights under the constitution can be waived by contract.

I think they could validly, many rights I think can be waived by contract.

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Alfred L. Evans, Jr.:

Certainly, this Court has held that in criminal situations and accused can waived certain rights —

Thurgood Marshall:

When they clearly waives it.

Alfred L. Evans, Jr.:

Yes sir.

Thurgood Marshall:

Clearly.

Alfred L. Evans, Jr.:

Well, if we have a statute, it’s been in effect 140 years and the people had been accepting it for that long, I would say that’s rather clear.

Thurgood Marshall:

And constitutional?

Alfred L. Evans, Jr.:

Yes sir, I would say it’s constitutional.

Thurgood Marshall:

Becuase of longevity, you don’t want to decide longevity cases on that matter, do you?

Alfred L. Evans, Jr.:

No, it is not because of longevity Mr. Justice Marshall.

It’s because of the equities balanced that we feel that a landlord too has property rights which must be protected.

Thurgood Marshall:

Well, why not make the landlord pull up a bond before he gets this action?

Alfred L. Evans, Jr.:

Some states do this.

The point is, it’s probably not as necessary in that for the landlord is a property owner.

He has something —

Thurgood Marshall:

I thought you just said in Georgia, they are just as bad office attorneys?

Alfred L. Evans, Jr.:

He has property —

Thurgood Marshall:

— for poor people.

Alfred L. Evans, Jr.:

He has mortgage payments perhaps, but he does own property.

The property can, is a subject of recovery, if the tenant sues the landlord.

But if the landlord sues the tenant and I’m saying particularly where the tenant is indigent, it’s at to be no chance of recovery at all.

Potter Stewart:

Mr. Evans, I notice if under 61-304 of the code.

If a counter affidavit and bond is corrupt by the tenant, then it becomes a duty of the sheriff or a deputy to return the proceedings to the next Superior Court of the county where the land lies, and then it says and the facts and issues shall be verified by a jury.

Alfred L. Evans, Jr.:

That is correct.

Potter Stewart:

Does the loosing party after that jury trial pay for the jury also?

Alfred L. Evans, Jr.:

No sir.

I know of no provision for that.

Potter Stewart:

Who pays for the dues?

Okay, is that public money?

Alfred L. Evans, Jr.:

I’m not sure.

My colleagues advised me that maybe, so I can’t answer the question.

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Alfred L. Evans, Jr.:

I don’t know if he would pay for the jury.

Potter Stewart:

But there is a mandatory jury trial apparently according to that language and statutes?

Alfred L. Evans, Jr.:

On the factual issues presented.

Hugo L. Black:

Is in the charge for the jury for ordinary fees in Georgia?

Alfred L. Evans, Jr.:

I don’t — I’m not aware of one Mr. Justice Black.

I would have to confess ignorance on the —

Hugo L. Black:

— leverage to the State of Alabama.

Alfred L. Evans, Jr.:

I’ve not heard of the charge for the jury in Georgia.

I don’t think that’s considered part of Court cost.

You’d be —

Hugo L. Black:

— might be and like never have seen it.

Alfred L. Evans, Jr.:

Well I’m not aware of it Mr. Justice Black.

Warren E. Burger:

Mr. Padnos.

Michael D. Padnos:

Thank you.

Mr. Chief Justice, I just like to touch on several things Mr. Evans dealt with.

First of all, Mr. Justice Marshall has asked the question about the common law issue.

I’m afraid I don’t think that’s been too clearly presented.

In fact, the common law that the landlord did not have the right of common law just to evict the tenant who was overdue on his rent.

The payment of rent is a covenant, which required the landlord to go into Court.

And the only way that the landlord could use self help is if the tenants he had come to an end, but that was not because the rent wasn’t paid.

So, this is not an improvement on common law as the state has represented.

Indeed on the contrary, it’s a much worst condition than common law.

Warren E. Burger:

Well if any eviction cases, the statute provided where summary remedy, let us say in the form of requirement to respond within 48 hours.

You’d have almost the same kind of summary procedure that you got here, would you not?

Michael D. Padnos:

Yes sir.

Warren E. Burger:

So you’re not challenging the right of the state that you have the statute which calls for, permits the summary disposition of such a case.

Michael D. Padnos:

No sir, bur we’re talking about is our right to present defenses in Court.

Indeed, one of the cases here really illustrates the badness of the statute of the Momman case which is one of the cases before the Court, which is one of the cases that we were not allowed to present the defense on.

And in that case, what have happened was this is a tenant at the Atlanta Housing Authority and Mrs. Momman is a white woman and a number of people have objected to the fact that she was having black visitors to her house, and it was on that basis that the project manager decided to evict her and we were going to fight that in Court.

Now that issue obviously is not for this Court and it’s not for any Court because we wanted to bring it the Court and that’s what brought Mrs. Momman into that Court.

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Hugo L. Black:

Doesn’t the statute give a right for him to defend if he files an affidavit?

Michael D. Padnos:

Files an affidavit with a double bond and Mrs. Momman is a —

Hugo L. Black:

Is that what you complaining about the double bond?

Michael D. Padnos:

We’re complaining about the entire procedure sir.

That we could not get —

Hugo L. Black:

He has the right to appear and file an affidavit and they have to be tried.

Why wouldn’t that be all right if we have plenty of time?

Michael D. Padnos:

Well, it doesn’t have the right to appear unless he files a double bond.

Hugo L. Black:

Well, that’s why I asked you to ask you if that’s the chief point in your case, the bond?

Michael D. Padnos:

You’re asking, I take it as if there were no bond would we object to — I think it would be all right, then if there was no bond —

Hugo L. Black:

Well, that’s what I thought.

Michael D. Padnos:

That’s what keeps at out of Court.

What about the statute, the way Mr. Evans described, it doesn’t sound to me as much different from the present.

Michael D. Padnos:

Sir, I’m not familiar with that statute.

I really can’t comment at all.

What I was referring to when I talked about statute is I knew that some statute passed the State Senate.

I’m not familiar with what Mr. Evan’s is referring to.

Potter Stewart:

That’s a bill.

You’re not talking about that.

There’s been no statutory bill, am I right?

Michael D. Padnos:

A bill is passed at the State Senate.

Potter Stewart:

A bill?

Michael D. Padnos:

A bill, but I knew of nothing that it passed the House of Representatives.

I’d also like to clear up but I’m afraid it might be a misleading impression that I gave about the Georgia legislature and also about the Courts in Georgia.

I didn’t mean to give the Court the impression that we have a sort of happy situation down there where everybody agrees and everybody can do what they want even though the law says the opposite.

The legislature of this Court should hold the statute constitutional, I would presume there’s no possibility that the legislature is going to change the present law, and as far as the Courts operating in our benefit in the kind of casual way that I talked about before, the Court should doing that in Fulton County to a certain extent.

To the best of my knowledge, they’re doing it nowhere else.

And indeed, it is now come to an end in Fulton County because only last Friday, one of the judges in the civil court said no more, I am not waiting anymore.

I’m not going to hold up these evictions, and we now have 52 tenants in one apartment building that are about to be evicted unless we can find a way to prevent that.

So there’s —

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Hugo L. Black:

Does that trouble with the bond?

Michael D. Padnos:

That’s because of the bond.

That’s the only issue.

Hugo L. Black:

Is that the trouble with the claim you’re talking about?

Michael D. Padnos:

Yes sir.

We can’t pose the bond in those cases.

And the tenants are not in any position to post the bond, and they’re likely be evicted unless —

Potter Stewart:

And they are going to be evicted because of non payment of rent?

Michael D. Padnos:

No sir.

What they’ve been doing in those cases is that rent is all paid in the Court in those cases but we’re not willing to turn the rent over to the landlord.

And —

Potter Stewart:

The grounds for the eviction there is non payment of rent?

Michael D. Padnos:

Is non payment of rent.

Potter Stewart:

Is that right?

Michael D. Padnos:

Right.

Byron R. White:

What suggested to a matter of curiosity, what is your defense to the landlord suit?

Do you admit non payment of the rent at the time the suit was filed?

Michael D. Padnos:

Are you speaking of the instant case or the one which is just —

Byron R. White:

Well, this one and the ones you were just talking about.

Michael D. Padnos:

Well, in the Sanks case that defense — for the Momman case, let’s start with that which is the housing authority case.

The defense is the one to which I just eluded that the housing authority has no right to evict the person just because she’s having a visitors from the opposite race.

In the Sanks case, our contention where we will ever able to present it would be that there’s no landlord-tenant relationship because there’s apparently a common law marriage between the landlord and the tenant in that case, the issues that I just mentioned; that is a very complicated case.

Hugo L. Black:

Is this judgment appealed them all?

Michael D. Padnos:

The judgment of the lower court?

Hugo L. Black:

Yes, in the — when they were to ask him, could he appeal from the judgment against him?

Could he appeal?

Michael D. Padnos:

Well, in the present posture, I’m not sure I understand the question.

In the present —

Hugo L. Black:

What I mean is, what course to this study, is it like to whom it was thought and adjust to the peace Court in other saying.

Michael D. Padnos:

They can’t start on the justice, the peace Court, so we can never even get into Court.

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Hugo L. Black:

Well, they can get in the Court if they deny.

Michael D. Padnos:

If they post the bond where — if we post the bond —

Hugo L. Black:

Suppose what I’m talking is suppose they put up the bond and then now, can they then appeal?

Michael D. Padnos:

Yes.

Hugo L. Black:

And how long would it take to get up to the Court of Georgia, people of Georgia?

Michael D. Padnos:

That’s relatively — it has been rapid in our case at least.

Hugo L. Black:

That right.

Michael D. Padnos:

It was rapid in our case.

I’m not sure what the usual length of time is.

But it was very rapid in our case.

Warren E. Burger:

Would you think that Georgia would have a constitutional right to require a condition for the relief you seek, the payment in the Court of all rent then overdue and monthly payments during dependency of the appeal?

Michael D. Padnos:

I believe so sir.

I think they could.

That seems to me equity in fairness and that’s what we’ve been trying to do even in these cases as it now stands.

Warren E. Burger:

Now what the Georgia legislature at least arguably has done is make an estimate that double the rent will accomplish that same objective.

Is that inaccurate?

Michael D. Padnos:

I think that is a correct decision of what they’ve done.

We protect the landlord’s interest.

Warren E. Burger:

But you think the one is all right that the other is not?

Michael D. Padnos:

Yes, I have to say that.

I think that is and maybe in inconsistencies, but it just rule of reasons.

It seems to me that —

Warren E. Burger:

Until I can think of my way out of it, it doesn’t seem to be an inconsistency in your position.

Perhaps, there’s an explanation.

Michael D. Padnos:

We’ll pass to the next question.

I just like to make one final point.

The state continues in this case is to talk about the landlord’s property interest and how we’re expropriating in that one point of brief, the state says a tenant’s private war on poverty.

I think it should be emphasized that the tenant does have a property interest.

He has a lease hold and indeed that Georgia Supreme Court specifically held that a tenant’s leasehold is a property right that is entitled to his much protection as the landlord’s bright in his property.

There are two conflicting property rights involved here, lease hold versus fee hold.

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Michael D. Padnos:

And what is involved is just the issue of letting a Court make the determination of which right is superior.

We want the right to go into Court and that’s what the case is all about.

Thank you.

Warren E. Burger:

Thank you Mr. Padnos, thank you gentlemen.

Thank you for your submission.

The case is submitted.