Sanks v. Georgia

PETITIONER:Sanks et al.
RESPONDENT:Georgia et al.
LOCATION:Ohio State Bar Association

DOCKET NO.: 28
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 401 US 144 (1971)
ARGUED: Dec 08, 1969
REARGUED: Nov 17, 1970 / Nov 18, 1970
DECIDED: Feb 23, 1971

Facts of the case

Question

Media for Sanks v. Georgia

Audio Transcription for Oral Reargument – November 17, 1970 in Sanks v. Georgia
Audio Transcription for Oral Argument – December 08, 1969 in Sanks v. Georgia

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

Warren E. Burger:

We will continue with number 28, Sanks against Georgia, Mr. Evans — oh, Mr. Padnos you have not finished your presentation in chief I do.

Michael D. Padnos:

Thank you Mr. Chief Justice, if I may just respond to Justice White’s question of yesterday.

We have done — have researched and we have found what I suspect some members of the Court may already have known there is in fact a savings statute in Georgia.

There is indeed a constitutional provision that says that law shall not have retroactive effect.

The — upon my quote from the typical case and there are number of cases that make very clear that in our case the — Mrs. Sanks and Mrs. Momman will be subjected double damages.

But a typical case language and the typical case says, law as proscribe for the future unless a statute either expressly or by necessary implication, that’s language that used throughout the cases, shows that the general assembly intended that it operate retroactively it will be given only prospective applications.

Particularly, relevant case in this context —

Warren E. Burger:

Mr. Padnos, excuse me, you’ll have to keep you paper away from the microphone.

Michael D. Padnos:

Sorry.

What was the citation of that case?

Michael D. Padnos:

That is Anthony v. Penn, 212 Georgia 292.

The statutory provision is the Constitution which is part of the Georgia Code and as cited this Georgia Code annotated 2-302.

The statutory provision that says laws proscribe only for the future.

They cannot impair the obligation of contracts nor usually have a retrospective application is Georgia Code annotated 102-104.

The closest case we were able to find for this — on this issue is the case of Leathers v. Turner 75 Georgia Appeals 62, that’s a 1947 case and it involved the new NIL that was enacted in Georgia at that time and the debtor in that case was attempting to have his rights determine under the old Act and the court said that only — and the creditor was asserting that his rights would appear under the new Act and the court decided for the debtor and said, only when there is very express language in the new statute that says that the rights created under the new statue replaced the rights under the old Act only with such express language does the new Act apply and there is no express language in this case in the new Georgia statute, the rights of the debtor — of Mrs. Sanks will be determined by the old statute.

What’s the page number of that case?

Michael D. Padnos:

That case is page 62, 75 Georgia Appeals 62, it’s a 1947 case.

I might say in further reference to mootness since I know how much that concerns the Court that that raises a very interesting side issue that again I haven’t thought of and your question stimulated our thinking about that.

If 305 is clearly applicable in this case and I think I feel it was persuaded that it is.

The 305 is clearly applicable, it’s very interesting what happened, should this Court decide that 305 is constitutional.

If you decide the 305 is constitutional or let’s just present that, the case goes back down presumably because the substance of issues haven’t been raised yet and at that point under 305, the landlord will be entitled to a double rent judgment.

The only way the tenant will be able to do anything about the double rent judgment is if she goes in under 303 assuming that you will not decide 303 or decide adversely or she will have to go in under 303 and post the double-rent bond.

When I talked yesterday, I was fairly certain that 303 was not applicable in this case, I think that’s been kind of opened up by your questionings.

So, I think the 303, if you hold 305 constitutional, we’re going to be stuck with 303 as well and I think the point that makes is that what you’re faced with and what we’ve dealing with is the whole statutory scheme of 303 and 305.

And I think they really can’t be separated, one must be understood even in this narrow case is this, they must be understood together.

Anyway, you conclude the cases included I take it.

Michael D. Padnos:

I conclude the cases.

On the other hand, in order for this liability to be imposed upon your client, the landlord must take additional affirmative actions, is that correct?

Michael D. Padnos:

As I understand, Georgia procedure sir, all the landlord has to do is go in to court after your decision and ask for judgment just literally walk into the court and ask for judgment.

Now, if we and we will not be able to assert affirmative defenses without filing the above.

Does the landlord indicating any of this in doing that?

Michael D. Padnos:

Well, there are two landlords in this specific case, there’s the Atlanta Housing Authority and then there is Mr. Sanks.

And the Atlanta Housing Authority is not a vindictive agency.

I suspect that there’s every possibility that Mr. Sanks is.

But when they might, what is their view if you put that question in this program to discuss later?

Michael D. Padnos:

I don’t know the answer to that sir, I just don’t know.

I understand that Mr. Sanks is now represented by counsel.

He was not represented by counsel before.

I just don’t know the answer to that.

Let’s assume for the moment that there was a hold-over tenant before this statute became into existence but there just wasn’t any lawsuit to file.

And today, the landlord sues for double rent.

The tenants long since gone out but he sues them for double rent for having held over.

Brings an action today based on the conduct which occurred before the new statute was passed.

You say the old statute would apply, is that it?

Michael D. Padnos:

No, because there is no procedure at the present time for filing a lawsuit under the old statute.

I think now they have to file a lawsuit under the new statute.

Well, then how — why doesn’t the new statute control the statute because you haven’t even gotten to the substitute issues yet?

Michael D. Padnos:

Well —

How can there a procedure for him to collect double rent from you when you haven’t even got to that phase of the lawsuit yet?

Michael D. Padnos:

Well, I suspect, it seems to me that logical answer is that the case was filed before this new statute took effect and that’s time at which he demanded the landlord sought to have his rights vindicate.

Well, aren’t we really sort of assuming in a dark tunnel here in terms that the impact to this new statute on this lawsuit?

That’s a — doesn’t that depend really on the complexities of Georgia law and its savings statute and this is sort of a cross between procedure and substance?

Michael D. Padnos:

I think that we’re swimming in a dark tunnel as related to the question that you just post sir, the question of what would happen if a lawsuit were filed now.

But I think the Georgia law is quite clear on the laws that — a statute — a lawsuit that was filed previous to the enactment of the new statute.

Well, I know but there is in the — there’s been no move in the case to get double rent yet, has there?

Michael D. Padnos:

There has not.

But there couldn’t have been yet, could there.

Well, alright there couldn’t have been and there is now no procedure to get it and why would the new statute to be a bar to is getting double rent from this lawsuit just like it would be in the new lawsuit?

Michael D. Padnos:

Well, I think the answer to that is that the case is we’ve been able to find require very specific language saying that it’s a bar in the new statute and there is no such language.

Well, that’s a — we’re just assuming, you’re just assuming that the savings that in this context there is a difference between this pending lawsuit and the future lawsuit?

Michael D. Padnos:

I am.

Alright.

Warren E. Burger:

Mr. Padnos, I recognized that you have some difficulties in trying to do this just overnight with your friend, we’re going to suggest to you that file supplemental memorandum and Mr. Evans can respond to that in which you can explore more fully and with more time and better facilities available.

File that within ten days or two weeks.

Michael D. Padnos:

Alright.

Thank you very much.

Mr. Padnos, would you straighten out one that a confusion that remains with me.

What is the relationship between Mr. Sanks and Mrs. Sanks nee Jones, are they married, are they living together or what?

Michael D. Padnos:

Well, they were ceremoniously married and I believe some time ago, 40’s I believe.

In the 40’s?

Michael D. Padnos:

In the 40’s. Mr. Sanks then attempt to do evict Mrs. Sanks from the premises and that’s why this is a somewhat confuse kind of a landlord tenant case to bring to this Court.

But they —

But are they living together?

Michael D. Padnos:

No, they’re not living together at this point because she is now out of there.

Were they living together at the time of the eviction?

Michael D. Padnos:

At point have gone I might say.

Excuse me?

Were they living together at the time of the eviction?

Michael D. Padnos:

Yes, sir.

Is there any Georgia rule against suits between spouses?

Michael D. Padnos:

I don’t know the answer to that.

Warren E. Burger:

You can perhaps cover that in your supplemental memorandum.

Michael D. Padnos:

I’ll be delighted to.

Thank you very much.

Warren E. Burger:

Mr. Evans.

Alfred L. Evans, Jr.:

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

I will have very few things to say about mootness.

Quite candidly, I would much prefer a decision on the merits.

I felt it was my obligation in light of the change of statute to present the question to the Court.

I, frankly, am uncertain as to whether there is mootness or not.

Alfred L. Evans, Jr.:

I recognize of course the reason the case is here to test the constitutionality of two statutes that is I suppose realistically speaking moot is to whether there is mootness as to the particular appellants, I am uncertain.

Why would you so much prefer decision on the merits as this statute has now been repealed and there’s the new statute?

Alfred L. Evans, Jr.:

Because sir there is a great deal of confusion in this entire area right now and I do feel that very likely a decision in this case could give guidelines which would undoubtedly spill over into the stress warrants which are now under attack in Georgia and many other instances where due process issues are and equal protection issues are being raised in connection with pecuniary requirements generally.

I suppose I’m looking at a little bit from the viewpoint of the Georgia taxpayer, I started out, I anticipate I won about 10 of these cases on technicalities in the Georgia courts.

I finally came to the conclusion that I didn’t think I was doing the best service possible that it came up over and over again which should have adjudication.

Therefore, in this case I waived, I didn’t raise questions of the merit.

I left that go by I didn’t raise any issue other than the merits because I want to do adjudication.

Warren E. Burger:

Ordinarily, we’re not hospitable to it trying to give opinions on future problems of the States.

We approach it very narrowly and decide only what must be decided.

Alfred L. Evans, Jr.:

Oh!

I fully understand the jurisdictional problems sir, but I was just indicating my own feelings why I raised the question.

I might say that what would happen if it went back is also a picture of total confusion.

In fact, the statute has not been followed in this case.

In fact the rents have been paid into the registry of court which is strictly contrary to statute, how this would affect the double rent, I have no way of ascertaining.

I am in a somewhat unusual position in arguing in support of the statute which I held to have repealed.

But while the position is unusual, it does not present a conflict, I work for the new law not because I thought the old one was unconstitutional but because I thought we could perhaps do a little bit better.

Good, better or best, of course do not raise constitutional issues and while the nebulous nature of equal protection and due process surely must provide a string temptation to the contrary.

This Court has repeatedly said that it does not seat to second guess legislatures as to whether their solution to a particular problem is the wisest or best of the available alternatives.

Now, the problem presented to the legislature in this particular situation is a very difficult one.

It goes to the heart of the landlord-tenant relationship.

How do you handle the problem of a tenant who wants to possess another’s property to which he may well have no right at all while he litigates his claims?

If you allow the tenant to posses the property, how do you protect the landlord from irreparable injury in the event of the tenant’s possession was in fact wrongful?

In as much as the landlord-tenant relationship is contractual, the answer may some times be found in the contract itself but what if the contract is silent.

Over 140 years ago, the general assembly of Georgia hit upon one solution to the problem.

It decided that one reasonable way of protecting the landlord’s interest and still allowing the tenant to remain in possession would be to require the tenant to post bond as a condition of continued possession.

Statutes dealing with the subject matter of a contract, of course, are traditionally deemed to be incorporated into and made a part of the contract.

For this reason, it has been understood in the State of Georgia for over 140 years that if there is no stipulation to the contrary, the landlord is entitled to rely upon the state’s statutory dispossession procedures.

I wish to emphasize at the very outset that the statutory procedure which appellant’s attack is a procedure which they in fact contractually agreed to.

I think the case could well be decided on this point without even reaching the constitutional issues involved.

Now in their brief, appellants attack Georgia’s dispossession procedures under both the equal protection and due process clause of the Fourteenth Amendment.

Alfred L. Evans, Jr.:

While Mr. Padnos indicated yesterday that he was less intrigued currently by equal protection and due process, I do not understand that he has wholly abandoned equal protection and therefore I feel I must comment upon both.

It is true of course that these two provisions often overlap, but they are not identical.

Because I believe that the questions raised under each of the two clauses are quite different in this case.

I would proceed to discuss them separately rather than together.

Looking first at equal protection, I think it is rather obvious that to have an intelligent or I dare say even intelligible conversation on equal protection; one must first define what sort of equality one is talking about.

There are two types of equality, the first is equality of treatment, the second is equality of result.

The distinction is quite critical for the simple reason that the existence of one almost always negates the existence of the other.

To illustrate the incompatibility, I might refer to tuition charges as state university.

Ordinarily, the fee is uniform at least for all state residents.

This is equality of treatment, all students are treated alike, yet this very equality of treatment clearly produces an inequality of result respecting the ability of indigent and affluent students to enroll in the university.

If on the other hand, the word “indigent” could somehow be classified and students falling within the classification were permitted to attend the university tuition free, there would obviously be at least a movement toward equality of result.

This would require of course a total absence of equality of treatment.

I suppose what would follow would be suits progressively by students just outside the classification of indigency until ultimately may be everyone will go free.

For reasons which ought to be obvious, it is equality of treatment rather than equality of result which prevails in the legislatures and in the courts.

We see this in public utility charges, public transportation and admission fees and charges for public accommodations generally.

These fees do not show very according to the pocketbook of the consumer.

Sales, taxes, excise taxes and automobile license plates fall upon rich and poor alike.

Theft is not excusable because the thief is indigent and therefore has — is under a greater pressure to steal than the person of means.

And as we think we show in our brief the authorities to date are rather uniform in holding that the great number of bonds both in the federal system and state system which are required in some situations as a condition of holding office and other situations as a condition of access to courts are not to be pushed aside or enforced according to the economic means of the person require to post the bond.

It is this traditional test which the Supreme Court of Georgia applied in the case at bar.

Having adopted the equality of treatment view of the Fourteenth Amendment, the Georgia Supreme Court could hardly have concluded other then that there was simply no classification based upon economic means which existed.

The sole classification which did exist was that of being a tenant which like that of being a student has nothing to do with economic status.

Since this test negates the existence of the indigency classification upon which appellants chiefly rely in their equal protection argument.

We feel they simply have no equal protection argument at all.

The result of course would be different if this Court were to construe the Fourteenth Amendment as requiring equality of results rather than of treatment.

If equality result is the constitutional goal, they will have to be inequality of treatment.

Under this approach, the Constitution would presumably require a sliding scale for bonds, bail, tuition and all other fees.

In each instance, the individual’s economic means would have to be very carefully scrutinized to achieve as equal a result as possible.

Carried to its natural conclusion, I suppose that the equality result test would require the leveling of all differences attributable to economic circumstance.

If not from each according to his ability, we would at least have two each according to his needs.

Alfred L. Evans, Jr.:

I think it is not surprising that the courts like the legislatures have been reluctant to so convert the Equal Protection Clause into a socialist manifesto.

The equality of result approaches have been very sparingly used by the legislatures.

One example might be progressive income tax; another, various welfare programs and some educational programs which are specifically designed to alleviate the condition of the poor.

Inarguably judicial example would be this Court’s line of cases starting in Griffin versus Illinois which hold that indigent prisoners must be given the same appellate remedies as are given to those prisoners who are not indigent.

I say arguably because quite candidly I really believe that the underlying rational of these cases is not equal protection, but it is due process.

While the difficulties of the equality of result approach is that it would require highly subjective and personal evaluations which defines upon distinctions.

This is not of course true of the equality treatment approach which is a traditional approach, which is acceptable of an objective judgment.

All we can do this Court —

How do you classify the right to counsel for the indigent?

Alfred L. Evans, Jr.:

I would classify the underlying rational is due process and I recognized that in the courts — in this Court I’ll have to say also in many of these cases the two have been sort of lumped together and they have not been perhaps analyzed separately.

But I would classify this due process.

And you would take this, I don’t mean to load you down with another case but you would take the same approach in the Boddie case which preceded it?

Alfred L. Evans, Jr.:

I would say that the only — in my own judgment, the only substantial constitutional issue in the Boddie case is due process.

And you would come out at the same result there as you are arguing before in your case?

Alfred L. Evans, Jr.:

Not necessarily, that’s a due process question, I have not yet come to due process that in court of course requires the balancing of interest and I don’t know if the interests there are the same as they are here.

In fact I think they well might could different.

Moving due process — two due process, we come to one of the more unsettled areas of constitutional law.

From her of view of this Court’s decisions, it seems to me that the majority view is essentially a natural law concept — a fundamental fairness.

This test has been stated in terms of whether the attack procedure shocks the conscience or whether it runs contrary to essential principles of ordered liberty.

But of course important questions remain, whose conscience must be shocked?

This Court has said that it is not merely the subjective view of the justices on this Court which should control.

If one looks for objective standards, is it not highly relevant that the statutory procedure in question has been in effect and very greatly relied upon in Georgia for over 140 years.

It certainly hasn’t shock too many consciences over the past to 140 years when it’s only now under attacked.

I think if we are to fairly judge the essential fairness of Georgia’s dispossessory procedures, we must look at these procedures in the light of history and also in the light of the totality of the landlord tenant relationship.

As we point out in our brief, the common law situation was basically one of self-help.

The landlord was ordinarily permitted to use such force as was necessary to physically remove the tenant.

This was obviously harsh.

This is not to say, of course, that the tenant was without remedy for a wrongful eviction of common law.

He could sue for breach of contract.

He could bring an action in tort for wrongful eviction where he had the possibility of recovering punitive damages.

Alfred L. Evans, Jr.:

He also could secure equitable relief in a proper case involving fraud.

I hasten to add that indigency alone would not give the court equitable jurisdiction but it could have equitable jurisdiction, it could enjoy the eviction if there were other equitable grounds available such as fraud.

Now, in past arguments, appellants have conceded that Georgia could retain the common law situation.

This being so are not appellants in a rather strange position to be attacking a statutory procedure.

The principle aim in effect of which has been to alleviate the condition of the tenant to improve his condition over that which he had at common law.

In addition to retaining all of his common law remedies, the tenant gained a very valuable albeit qualified right of retaining possession of someone else’s property during litigation as to whether he had any rights to the same.

Moreover, the tenant was spared the self-help injuries inflicted by the landlord.

The statutory procedure terminated this valuable right of the landlord to use such force as was necessary to eject the tenant.

The heart of appellants’ due process claim of course is that now this qualification to the statutory right they gained must also be eliminated for reason that it forecloses them from access to the courts.

We emphatically deny that appellants are foreclosed from asserting their claimed rights by the bond posting requirement.

To start with, appellants whether or not they post bond retain all of their common law remedies.

They can still sue for breach of contract.

They can still bring an action in tort for wrongful eviction where they can get punitive damages and in a proper case, they can secure injunctive relief which could restrain eviction.

Additionally, there is a question of whether there is a denial of access such as would shock the conscience where the principle argument is the indigency of the particular persons involved as this Court said in OMB versus Morgan the question of whether a security condition is reasonable depends upon its general effect and operation not upon instances of peculiar hardship arising out of exceptional circumstances.

In OMB which Snyder Act very recently treated as being constitutionally viable, the contention was not at all unlike the contention made here.

There, a defendant in a foreign attachment action had its pleading stricken when he was unable to furnish security in the sum of $200,000.00 a rather substantial sum.

It was contended that this denial of his right to appear and present his defenses was a denial of due process.

This Court disagreed saying that the statute expressly gave him an opportunity to appear and that the security condition did not as a matter of law take away his right not withstanding the fact that he attempted to but was unable to obtain the security.

This Court in cases as Union Guano and also in Cohen versus Beneficial Loan has consistently held that the Fourteenth Amendment does not prevent the State from proscribing reasonable and appropriate conditions to the seeking of judicial relief in specific situations so long as first, the basis of the distinction is real and second, a legitimate governmental end is served.

Certainly, the situation here is specific.

It involves purely possessory rights in only three specific situations.

They are, where the tenant has failed to pay rent, where the tenant is holding over beyond the term of the lease, and where the tenant occupies at will or by sufferance.

As the Supreme Court of Georgia, correctly I think noted, these are facts which are or ought to be easily within the knowledge of the tenant as well as within the knowledge of the landlord.

We think it is equally clear that the basis of the distinction is real.

The interest involved here are for a cry from those presented in the line of cases such as Griffin ver — starting with Griffin versus Illinois or Goldberg versus Kelly.

In both of those cases, the balancing involved was the balancing of the rights of individuals versus an interest in state funds — safeguarding state funds.

Under the circumstances presented in those cases which were spelled out very carefully, this Court opted in favor of the individual.

This is not a conflict.

The interests here are not State versus an individual.

Here, it is the clash of economic interests between two easily identifiable classes of private citizens.

Alfred L. Evans, Jr.:

On the one hand, you have the, admit and we don’t deny the hardship of dispossession.

There is he admitted personal hardship of dispossession on one hand although this is a hardship which if wrongfully inflicted ought to be and is compensable by damages including in a tort action punitive damages.

On the other hand, you have the danger of irreparable injury to the landlord through lost rental income.

In most cases, this lost could never be recovered particularly whereas here the tenants are indigent.

This question is to whether they would be liable for double damages on if it should go back, it’s really an academic question, they’re indigent.

The landlord will never get initial damages much less double damages.

I simply can’t understand how this can be said not to be a very real basis of distinction where you’re weighing the interest of two competing groups of citizens.

Finally, we submit that protection of property from irreparable loss is a legitimate and indeed a compelling governmental objective.

Under the Georgia Constitution, I think under the Constitution of most states, protection of person and property is one of the fundamental justifications for the very existence of any government.

For over 140 years, the general assembly of Georgia has accorded a very high degree of protection to the owners of property including the owners of rental property.

Through the bond posting requirement of its dispossessory proceedings, it is in the absence of the stipulation to the contrary a part of the lease to which every tenant agrees he can vary it by contract.

If standards for shocking the conscience are truly objective, I fail to see how after 140 years this statute is suddenly in this category of unconstitutionality.

Frankly, which at my conscience if the state could not protect the owners of rental property.

In conclusion —

Hugo L. Black:

Whose conscience, if you understand, has to be shocked?

Alfred L. Evans, Jr.:

It’s a very difficult question Mr. Justice Black and of course I’m not — it’s not a test that I personally think as a good one, but I would say it would have to be as Mr. Justice Harlan said at the very least it would have to be based upon the general view of society which conceivably could change.

But I do think it would have to be based on a general view.

Hugo L. Black:

Shock the conscience of society?

Alfred L. Evans, Jr.:

Sir?

Hugo L. Black:

You mean, the shock the conscience of society?

Alfred L. Evans, Jr.:

Yes sir, I think it would have to be one which would shock the conscience of civilized society.

It should — this should be the objective standard tort which I believe Mr. Justice Harlan says the Court should move.

Warren E. Burger:

Would that make it something like the test we apply to obscenity?

Alfred L. Evans, Jr.:

I hate — I dislike to even comment on the testified obscenity, I frankly find it so difficult to grasp.

Warren E. Burger:

I won’t pressure you for answering that one.

Why don’t you leave it unless the picture as gray as we talk about fundamental fairness of constitutional gossip?

Alfred L. Evans, Jr.:

Fundamental fairness, it is of course —

(Inaudible)

Hugo L. Black:

Would you?

What is fundamental fairness?

Alfred L. Evans, Jr.:

Again, where the —

Hugo L. Black:

Where is fundamental fairness if would you have to good test?

Alfred L. Evans, Jr.:

I interpret the phrases as being identical shocking the conscience or fundamental fairness to me means the same thing.

If I’m using histrionics I am borrowing at from decisions of this Court.

I would say that again you should look it.

I think it should be looked for in what is the consensus of civilized society of our longstanding judicial traditions.

I do not think it should be — well this Court has said it ought not to be merely the personal view of any individual justice who seats on the court at any one time that is what this Court has said.

Part of it, difficulty is in judging?

Alfred L. Evans, Jr.:

Yes sir, I’m sure it is.

I would have only one further comment and that is on the double bond which of course, I agree with much Mr. Padnos said it is in meshed — Oh!

Excuse me the double rent provision is in meshed with double bond in effect.

The only thing I would say about double damages is that 305 which was attacked deals with double damages.

This Court has consistently upheld the right of states and the federal government for that matter to require double or for that matter trouble damages such as you have in the Clayton Act where an individual can be oblige to pay trouble damages even for unintentional violations of the antitrust laws.

Could I ask you a few in your opinion the question of double damages would be governed by the new law or the old law, do you know just no ready answer or —

Alfred L. Evans, Jr.:

I have no ready answer for this reason as I believe I indicated that these cases have not followed the statutory procedure.

Now, if they’re going to revert to the statutory procedure is something I do not know.

I think, in fact no double damages ever could possibly be recovered because they are indigents.

Well, like that they may be able to recover them but that doesn’t make the case nothing.

Alfred L. Evans, Jr.:

Well, you see the problem is the Court deviated from the statute in having the rent paid into the registry of court.

Now, whether this would cause an equitable reply to any assertion for double damages I assume it would.

Certainly, they — certainly I think there could be no recovery for double damages for the entire period of the litigation when pursuant to court order, the rent has been paid into court.

Warren E. Burger:

It would stop you think from the time they paid it in the registry of the court?

Alfred L. Evans, Jr.:

Certainly, from that time there could be no double damages and I think there if there are double damages if there are none, not at all certain it could, I don’t know how, I think I would have to say I don’t know how the courts would handle it because they departed so far from the statute to date in this problem that I don’t know how or when or why or if they would go back.

And I’m sorry I can’t help on that.

But the tenant is out of possession?

Alfred L. Evans, Jr.:

Yes sir, in both cases the tenant is out of possession.

The tenant is out of possession and the only reason he had to put up a bond is that he want to stay in possession while you litigate?

Alfred L. Evans, Jr.:

Yes, sir.

So the bond question is washed out of the case.

Alfred L. Evans, Jr.:

The bond question is washed out of the case.

And the only question —

Alfred L. Evans, Jr.:

Well, again it is presumably if this Court for example were to rule on the merits, I don’t know it might be that being as the Court might construe this to the best of rights and it might be going back to trial court assuming the Georgia Supreme Court is affirmed, the trial court might well take the position that well I guess they can’t come, I think it [Voice Overlap].

Well, there is no dispute between these parties now, but possession is there?

Alfred L. Evans, Jr.:

No, there really isn’t.

Thurgood Marshall:

Mr. Evans, you can speak is to whether or not they’re going to push with double damages or not because they are not your clients, right?

Alfred L. Evans, Jr.:

That’s correct, sir.

Thurgood Marshall:

So we don’t know what they might could —

Alfred L. Evans, Jr.:

No, I’m saying that assuming that —

Thurgood Marshall:

Well, would you assume that if they said they weren’t going to push for it that would why is that going on?

Alfred L. Evans, Jr.:

If the landlord state they will not push for it, but obviously this would ended.

I’m assuming if the landlords attempted to, I think it’s very unlikely they would attempt to.

If they attempted to, I don’t know what the courts will do.

Thurgood Marshall:

But there’s no way we can find out?

Alfred L. Evans, Jr.:

No sir, because of the fact that it — the court has departed from the statutory procedure in these cases.

Thurgood Marshall:

Why?

Because the landlords are not represented in this courtroom.

Alfred L. Evans, Jr.:

No sir, not this particular matter.

Thurgood Marshall:

Nobody can speak for them, so we don’t know.

Alfred L. Evans, Jr.:

I’m trying to the best of my ability to speak for the landlords of the States a whole but not this particular instance.

Thurgood Marshall:

Well, you don’t represent landlords, you represent the state.

Alfred L. Evans, Jr.:

Yes, sir.

Warren E. Burger:

Thank you Mr. Evans.

Mr. Padnos you have at least a minute or so left.

Do you have something you’d like to add?

Michael D. Padnos:

I just like to add one comment to Justice White’s question.

I don’t think 303 that bond posting requirements is out of case at all because if this Court holds 305 constitutional, the only way we can litigate the substantive issues as I understand what’s going on is to post the bond required under 303.

Why?

Michael D. Padnos:

There is no other way to go into court if 305 is constitutional.

Why can’t you just have to post a bond if you want to stay in possession while you’re litigating?

Michael D. Padnos:

Sir, that’s the statutory intention, I think that was the intention but this case as Mr. Evans points out the procedures have nothing to do with the statutorily constructed procedures.

Michael D. Padnos:

We’re in a kind of never, never land, a dark tunnel as you say, a procedure and what’s happened here is if this Court holds 305 constitutional Mrs. Momman and Mrs. Sanks will be liable for double damages.

And the issue, the substantive issues will never have been litigated such as the question you raised about or Justice Blackmun raised about whether or not you can sue a husband and wife can sue one another.

All the substantive defenses that Mrs. Sanks might want to make will – she’ll have to post the double bond to make those defenses and therefore 303 is in the case.

Hugo L. Black:

I assume, if she was sued the double damages, it be no doubt about the case should being here would it?

Michael D. Padnos:

She —

Hugo L. Black:

Well, not about their right to raise that constitutional question.

But what – your true situation is that she just have don’t have to been sued for double damages?

Michael D. Padnos:

Well, sir she has been sued for double damages.

You see it’s only one procedure, the procedure that was began and led to this case is a procedure for possession and double damages.

So, she is liable for double damages and the only way she can make a defense against that in the event that 305 is left standing is go in and post the double bond.

Obviously, we don’t know what the lower courts of Georgia are going to do.

Hugo L. Black:

But she’s not there now.

Michael D. Padnos:

That’s true sir, but she still subject to double damages and the only way that she can get in and defend on the merits which she wouldn’t do on possession she is —

Hugo L. Black:

Now, what she’s claiming is out of the double damages but the other side is not.

Michael D. Padnos:

Well, as Mr. Justice Marshall points out we don’t know what the other side is going to claim.

Hugo L. Black:

Right.

There’s no knowing if it recovers there again, there’s no lawsuit between them.

Michael D. Padnos:

Well I think there is sir — a lawsuit between them.

I think this suit is of the lawsuit between them on the question of double damages.

Hugo L. Black:

You’ve done a job in showing that you do think here.

Michael D. Padnos:

Well, is there is — we have cases in the brief to that effect that they said very clearly in the supplemental brief we filed.

The Georgia Supreme Court says very clearly that all they need to do, the mere fact for example that a tenant vacates is not enough voluntarily.

It’s not enough to relief him of double damages.

That can’t get him out of the double damages and all they need to do is get a judgment from the dispossessory suit filed under 303.

The landlord can take a judgment for double damages as well as possession.

Warren E. Burger:

Mr. Padnos, would you think it’s fair to say that this case and the issues have been complicated somewhat for the fact trial judge initially in Georgia intended to stretch that statute considerably?

In another words, by calling for the payment of rent under these circumstances in lieu of bond, he was really ignoring the statute, wasn’t he?

Michael D. Padnos:

Yes sir, —

Warren E. Burger:

In fact, that does have an impact on this case as distinguished from the functioning of that statute in the abstract.

Michael D. Padnos:

A great impact and I might say that as you pointed out when we spoke, when we appeared before that the Georgia Court has been serving as a court of equity and really ignoring the statute.

Michael D. Padnos:

And the reason is that the Court just felt and many judges in Georgia feel that the statute is so inequitable.

There must be a way to get around that.

Warren E. Burger:

So, that makes it an atypical case under the statute?

Michael D. Padnos:

Well, only atypical and that somebody finally snuck away in to let us get into court and that’s what many people have been trying to do for many years, is to get into the court and nobody could ever do it before and the judges said finally the heck with it, we’re going to find a way to get them in the court.

The problem is not an atypical problem.

The solution can thrive with an atypical solution.

Warren E. Burger:

Thank you Mr. Padnos.

Now, you’ll each remember that in your supplemental submission you will cover all the points that have been raised between the bench including the right under Georgia statutes of husband or either spouse to sue the other.

Michael D. Padnos:

Yes, sir.

Warren E. Burger:

Thank you.

The case is submitted.