Smith v. Bennett

PETITIONER:Smith
RESPONDENT:Bennett
LOCATION:Eagle Coffee Shoppe

DOCKET NO.: 174
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 365 US 708 (1961)
ARGUED: Mar 28, 1961
DECIDED: Apr 17, 1961

Facts of the case

Question

Audio Transcription for Oral Argument – March 28, 1961 in Smith v. Bennett

Earl Warren:

Number 174, Neal Merle Smith, Petitioner, versus John E. Bennett, Warden, and number 177, Richard W. Marshall, versus John E. Bennett, Warden.

Mr. Hill.

Luther L. Hill, Jr.:

Mr. Chief Justice, may it please the Court.

Petitioners Smith and Marshall are presently incarcerated in the Iowa State Penitentiary at Fort Madison, Iowa.

They both attempted to file petitions for writs of habeas corpus in the District Court in and for Lee County, Iowa.

Neither petition for a writ was allowed by the Court because of the failure to pay a $4 filing fee required by Section 606.15 of the Code of Iowa.

Both petitioners attempted to appeal to the Iowa Supreme Court and the Iowa Supreme Court denied their motions to proceed in forma pauperis, apparently because of the failure to pay the filing fee, a $3 fee this time, required by Section 685.3 of the Iowa Code.

Now to back up for just a minute to get the picture of these two men, Smith was sentenced to 10 years in prison for breaking and entering.

He was paroled to his home in Iowa City, Iowa.

Shortly after he was paroled, he was picked up for an alleged parole violation.

He was returned to the Iowa penitentiary and his sentence was there, he claims, arbitrarily extended.

He filed a petition for a writ of habeas corpus.

He alleged that unconstitutional methods and procedures have been used in his rearrest and he accompanied his petition with an affidavit of poverty and a motion that he’d be allowed to proceed in forma pauperis.

He thereafter received a letter from the clerk of the Lee County, Iowa District Court.

That letter read in full as follows.

“I am returning your motion to allow petition for writ of habeas corpus in forma pauperis.

If you will mail this office $4 to cover the filing fee for the above, it will be presented to the Honorable W.L. Hughes’ count, who is one of the judges in that district.”

Smith then attempted to appeal to the Supreme Court of the State of Iowa.

He moved for a leave to proceed in forma pauperis in that Court.

The Supreme Court of Iowa denied the motion.

He then applied for certiorari to this Court, as a matter of fact, he attempted to appeal to this Court.

The appeal was dismissed but paupers were treated as a petition for certiorari.

Certiorari was granted and limited to the question presented in Burns versus Ohio.

Marshall, who was the other petitioner here, pled guilty to the crime of breaking and entering.

He too was sentenced to 10 years in the Fort Madison, Iowa Penitentiary.

He attempted to file a habeas corpus petition, alleging that his plea of guilty was obtained by coercion and do arrest in violation of the Constitution, and that the County Attorney’s information was fatal on its face.

He too accompanied his petition with an affidavit of poverty and a motion to be allowed to proceed in forma pauperis.

He alleged that he was wholly without funds to pay the filing fees required.

In Marshall’s case, the Court in the Lee County Iowa District Court actually rendered two opinions.

In the first opinion, the Court said that the filing fee had not been paid and therefore the matter was not properly before it.

Luther L. Hill, Jr.:

But even were the filing fee paid, still the petitioner did not allege grounds on which habeas corpus in which a writ of habeas corpus could be allowed.

Subsequently, the petitioner made a motion to settle the record on appeal.

And the Court issued another opinion in which he said, “There is no record to settle on this appeal.

The appeal can only be from the order denying the petitioner’s request to file his petition for writ of habeas corpus as a pauper.”

So that the only paper is necessary to be presented on this appeal would be the application to permit the petitioner to file without the payment of the statutory filing fee, since the petition for writ of habeas corpus was never formally considered by this Court.

In the Supreme Court of Iowa, once again, this petitioner attempted to proceed in forma.

His motion to proceed in forma pauperis was denied by the Supreme Court of Iowa.

His petition for certiorari was granted by this Court, limited again to the question decided in Burns versus Ohio.

Thus both of these prisoners remained in the Iowa State Penitentiary at Fort Madison.

Their contentions, their constitutional question raised about the methods and procedures incident to their incarceration, have not been ruled on by the Iowa District Court.

The issue I think can be stated as follows.

Can the State in habeas corpus proceedings close the doors of its courts to those petitioners who, because of their poverty, are unable to pay the filing fees required by the State statutes?

In this case, specifically Iowa, the $4 fee in the District Court and the $3 fee in the Supreme Court.

Or I think the issue can be phrased somewhat differently.

I think we can say can indigents constitutionally be denied in post-conviction remedies in the Iowa’s courts.

Now as I understand the State’s argument, the State admits that filing fees are unnecessary in habeas corpus proceedings in Iowa, that there is no in forma pauperis proceeding in Iowa in habeas corpus.

Potter Stewart:

In stating your question in the second alternative way, you meant — you mean post conviction remedy other than direct appeal?

Luther L. Hill, Jr.:

Yes sir.

That’s what I mean, post-conviction remedy after conviction and whatever appeals there are through the criminal process —

Potter Stewart:

And either stated appeals deal or an unsuccessful appeal.

Luther L. Hill, Jr.:

Yes sir.

The State, as I say, admits that there is no in forma pauperis proceeding in Iowa in habeas corpus.

In defense of the constitutionality of these two statutes, the State argues that habeas corpus is a civil proceeding and that being a civil proceeding that cannot be, the rule of Burns versus Ohio, cannot be extended to it without extending the rule to all civil proceedings.

The State also seems to argue that in this proceeding, it is a defendant and that it would be grossly unfair to require the defendant to pay the cost of plaintiff in a civil action.

State also points out that if the plaintiff is victorious in his search for habeas corpus, the cost will be taxed against the defendant, namely, the State.

The State also argues that habeas corpus, as used by these petitioners, is purely statutory, not constitutional and that this means that the remedy should not be entitled to any high constitutional protection.

William J. Brennan, Jr.:

Does the Iowa Court has any discretion (Inaudible)

Luther L. Hill, Jr.:

As I understand it, Your Honor, the Iowa Court does not have any discretion.

The statutes, the State says that the clerk shall collect both in the District Court and in the Supreme Court.

Earl Warren:

What other post-conviction remedy does Iowa have, if any?

Luther L. Hill, Jr.:

There is, I believe no other post-conviction remedy, Your Honor.

Earl Warren:

There isn’t.

Potter Stewart:

There is provision for in forma pauperis direct appeal without (Inaudible)

Luther L. Hill, Jr.:

Yes sir.

There is no question but what the State of Iowa has a procedure which lives up to the full letter of Burns versus Ohio on criminal appeals.

There are provisions for the furnishing of transcripts of records and there are no filing fees requirements in those cases.

Though we’re moving a step beyond that now to the post-conviction, the termination of criminal post appeal.

Thank you.

Felix Frankfurter:

Mr. Hill, may I ask you whether the farmers that come to the Court go into the — whatever you call them, the registry, adversity, or clerk of the Court, the funds that come in as a result of the fee, is the — is the avowed theory that they possibly go to sustaining the cost of the judicial system?

Luther L. Hill, Jr.:

Yes sir.

Felix Frankfurter:

They go to a separate court fund or do they go into the general service?

Luther L. Hill, Jr.:

I’m not sure of the accounting.

I believe they go into a separate fund, the $4 fee until recently it was $3, the District Court fee.

The State added an additional dollar which helps to pay for a statistician who keeps account of the District Courts to make sure that they’re keeping address for their work.

Felix Frankfurter:

You happen to know whether all the fees that go into carrying on litigation, does that sustain the cost of the administration.

Luther L. Hill, Jr.:

I would imagine not Your Honor, I do not — I don’ know.

Maybe the Attorney General can answer that question as he stands here.

Felix Frankfurter:

But the — the idea is that it should in part contribute —

Luther L. Hill, Jr.:

It helps —

Felix Frankfurter:

— to the cost to maintain the judicial administration of the Court, the legal system.

Luther L. Hill, Jr.:

Yes Your Honor, it helps to maintain for the — legal system of the state.

The final argument advanced by the State is that in any case, the federal courts will be open to these petitioners; they have in, because of their poverty, exhausted their state court remedies.

I think before we move into a detail consideration of these arguments of the State, we should first see where this Court seems now to be.

You limited the grant here to the question presented in Burns versus Ohio.

Clearly, Burns versus Ohio was a criminal case.

It was a case of a criminal appeal in Ohio.

Involved there was whether a motion for a leave to appeal in the Supreme Court of Iowa could be filed by a pauper.

He not having the necessary $20 filing fee.

He, the pauper in that case, Burns, received a letter from the clerk of the Supreme Court of Iowa stating that without payment of the filing fee, the motion for leave to appeal would not be considered.

This Court held that the State cannot constitutionally impose financial barriers on the right of indigent criminal defendants to appeal.

Luther L. Hill, Jr.:

In that case, I think the philosophy of this Court was clearly stated in the majority opinion.

There is no rational basis for assuming that indigent’s motions for leave to appeal will be less meritorious than those of other defendants.

Indigents must therefore have the same opportunities to invoke the discretion of the Supreme Court of Iowa.

Here the action of the statute — of the State has completely barred the petitioner from obtaining any review in the Supreme Court of Iowa.

I point out that the attempt to collect the $4 and the $3 in this case has completely barred these indigent prisoners from any Iowa post-conviction procedures.

Burns versus Ohio followed in time and in philosophy the decision of this Court in Griffin versus Illinois.

Griffin versus Illinois again was a criminal appeal.

In that question at issue was the cause of a transcript of a record on appeal.

This Court held that the State must furnish either a transcript or an adequate substitute.

It might be pointed out that in Griffin versus Illinois, the challengers on appeal to the — by the indigent prisoner where a challenger is base on errors, mere errors committed by the trial judge at the trial.

They were not challengers based on constitutional questions as we have here.

Now it seems clear I think that in criminal cases, this Court, when the issue is presented, has gone very far in saying that rich and poor must be treated alike, that filing fees, cost of transcripts must not be allowed to interpose between the criminal defendant and the prosecution of his appeal.

The distinction between the Griffin versus Illinois and Burns versus Ohio, as the State has correctly pointed out, is that habeas corpus has long been held to be by most courts a civil proceeding.

This Court in the matter of Tom Tong, in 108 U.S. quoted in both briefs said that civil — that habeas corpus was a civil proceeding.

That case has been followed by other court cases both here and in the Supreme Court of Iowa.

William O. Douglas:

Is that a deportation case?

Luther L. Hill, Jr.:

I believe that was a criminal case, Your Honor.

However —

Felix Frankfurter:

Why — why did it become relevant to pass any — express any view as to whether it was — what the character of it, it was civil or quasi civil or criminal or quasi criminal?

Luther L. Hill, Jr.:

Your Honor, I can’t answer that right away.

In the one Iowa case or in one of the Iowa case, they issue as a matter of bail.

And in the second Iowa case, the issue was a matter of whether it was possible to tax the cost against the county, the county being the alleged plaintiff for a minor child.

Potter Stewart:

Federal system it’s — it becomes quite important from at least one point of view, and that is the time for an appeal, the time in which an appeal made.

I suppose that’s true in many states.

There’s different time allowed there in criminal cases from that allowed in civil cases.

Luther L. Hill, Jr.:

Well there are a number of — there are a number of various distinctions of course that would flow from the —

Potter Stewart:

Number of others but that’s technical way in which you be dispositive, through which the issue can become very important.

Luther L. Hill, Jr.:

Now in one state at least, in Kansas, in Gleeson versus Commissioner which is cited on page 15 of the petitioner’s brief, the Kansas court said that at least in cases like this, where criminal prisoners were involved who were seeking habeas corpus; habeas corpus was criminal or essentially criminal in nature.

If that route were followed by this Court, of course, there would be no distinction, I suppose, between Burns versus Ohio and Griffin versus Illinois.

But assuming that that route is closed by virtue of the decisions like Tom Tong, we move on, I think, to a consideration of the nature of habeas corpus itself.

Luther L. Hill, Jr.:

Habeas corpus may very well be a civil remedy, but I submit to you, it is no mere civil remedy.

It is long been recognized by this Court as an essential element in the whole fabric of our constitutional system.

In Darr versus Burford, for example, the Court said, “The writ of habeas corpus commands a general recognition as the essential remedy to safeguard a citizen against imprisonment by a State or Nation in violation of his constitutional rights.”

The same kind of language appears in Bowen versus Johnston, 306 U.S.

It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty.

And there is no higher duty than to maintain it unimpaired.

I think the popular view of habeas corpus is, perhaps, expressed by the read along quotation which I certainly shant read from Hendrick which appears on page 16 of the brief.

The whole idea being, popular idea being that as long as the writ runs, nothing like Hitlerian arrest can exist in this country.

The importance of the writ, I think is evidenced by the fact that it is found in the United States Constitution not in the Bill of Rights, been in Article 1, Section 9 and its inclusion there was pointed to by Hamilton in the federalist as being one of the reasons why there wasn’t a need for a Bill of Rights because this protection was already in the Constitution.

It is found in Article 1, Section 13 of the Constitution of Iowa, and it is found in the constitutions of a number of the other states of the union, and I suspect but for the poor facilities available in the morning perhaps in all of the Constitutions, the states where I found the provision are listed on pages 18 and 19 of the petitioner’s brief.

With all of these background, with all of this feeling about the great writ and the freedom writ, it seems that you are here considering the extension of a rule, the rule of Burns versus Ohio, to a cause of action, to a remedy which is not ordinary, which is not a mere civil remedy.

And which gives you a very good ground to distinguish between habeas corpus and all of the other civil actions trespass, (Inaudible) and so forth.

Now this has been done by one state court.

In Barber versus Gladden, a decision by the Supreme Court of Oregon, Barber sought a writ of habeas corpus against the warden or the prisoner in which he was imprisoned.

He moved for an order authorizing the judge to direct the county treasurer to post in undertaking on appeal and to pay all fees and cost on appeal, or in the alternative, to order the requirement waived.

An affidavit of poverty accompanied this motion.

The Supreme Court of Oregon held, it said by necessary implication of Griffin versus Illinois, that the statutes requiring an appeal barring were unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

The Supreme Court of Oregon said, it maybe — that a distinction will be suggested between the two cases, namely, Griffin versus Illinois and this case, because Griffin versus Illinois was a criminal appeal whereas Barber’s appeals is a civil action for habeas corpus.

But the argument cuts the wrong way.

To be sure, habeas corpus is in form a several proceeding.

But it is one based upon the provisions of the Oregon constitution.

Its function as applied to persons imprisoned for crime is to afford relief from confinement under a void judgment, a wrong which transcends in seriousness mere errors of law at trial.

Parking back again, of course, to what was at issue in Griffin versus Illinois.

Now unfortunately, as far as I’ve been able to find, Oregon is the only state that has done this, but there have been two cases, the case in the District Court and the cases in the Ninth Circuit of Appeals coming out of Oregon and therefore, governed by the Oregon law, the same prisoners involved, and both cases, namely, Daugharty v. Gladden in page 21 of the brief in the Federal District Court.

There the Federal District Court stated the question whether it was necessary in a habeas corpus proceeding to pay fees to the counting clerk to obtain the transcript of record, whether that requirement of the Oregon law was constitutional.

The District Court stated that such a requirement was unconstitutional, citing Griffin versus Illinois and Barber versus Gladden.

But the Court want to held — want to — where they had to hold that the state court remedies have not been exhausted that this prisoner could turn to the Supreme Court of Oregon for a writ of habeas corpus.

That case was then appealed to the Ninth Circuit.

The Ninth Circuit first reversed the District Court and held that the state court remedies had been exhausted pointing out that there has been six proceedings in the Federal District Court, five proceedings in the state courts, and one proceeding in the Ninth Circuit.

And that all of these together amount into a real exhaustion of the state court remedies.

Luther L. Hill, Jr.:

Then the Ninth Circuit went ahead to say that the dismissal of the state court appeal because a plaintiff’s inability to furnish an appellate transcript deprived him of equal protection under the Fourteenth Amendment quoting directly, “We hold only that those state processes ought to be made available to rich and poor alike.”

The case was remanded to the Federal District Court to allow Oregon a reasonable time in which to take action and conformity with the opinion barring which the prisoner was to be release.

Therefore I think there are presently two cases, one in the Oregon Supreme Court, one in the Ninth Circuit following apparently the Oregon law, both of which hold that in habeas corpus proceedings, the State may not, under Griffin versus Illinois, the Fourteenth Amendment, the Equal Protection Clause thereof, may not constitutionally interpose financial barriers between a prisoner and habeas corpus proceedings.

Now the State, of course, argues that if you extend the rule of Burns versus Ohio to habeas corpus, you will extend it to all civil actions.

I would submit respective to you that that does not necessarily follow.

As we have seen habeas corpus is not a mere civil remedy.

I think you have a line of distinction there.

It is obvious that the extension was so limited in Barber versus Gladden.

This distinction that I am suggesting, the distinction which is built on the personal liberty, on the very nature of this writ and the importance of the writ, as suggested by former Chief Justice of the Massachusetts Supreme Judicial Court in an article on page — that’s quoted on page 25 of the petitioner’s brief.

It was suggested by Judge Hamley of the Ninth Circuit, a distinction which makes of habeas corpus an action so important at least when used in this context that the state should not be allowed to interpose these financial barriers between the writ and the prisoner.

Now I think this whole problem can be approached from a slightly different point of view.

It is a point of view that I alluded to earlier and that in response to a question that was put to me, to some extent came out.

Namely, I believe it is the law as stated by this Court that the states must of necessity under the Fourteenth Amendment provide some kind of a post-conviction remedy for imprisoned prisoners.

Now certainly, this is the feeling of the law enforcement official to the country.

I’ve quoted on page 27 of the brief a statement of a special committee on habeas corpus report to the conference of Chief Justices residing from a California report.

There they said that any proposition can be stated dogmatically in this field.

It is this.

State courts must provide post-conviction corrective processes which is at least as broad as the requirements which will be enforced by the federal courts in habeas corpus through the Due Process Clause of the Fourteenth Amendment.

A State can call this remedy whatever it wants but it must provide some corrective process, see Mooney versus Holohan.

Now candor compels me to admit to you that Mooney versus Holohan, to my opinion, does not go quite that far, although it goes quite far I believe.

However in Young versus Ragen, an Illinois prisoner attempted to obtain a writ of habeas corpus.

This writ was denied by the Illinois court without a hearing because it was insufficient in law and substance.

This Court speaking through Chief Justice Vinson said, “Of course we do not review decisions which rest upon adequate nonfederal grounds, and, of course, Illinois may choose the procedure it deems appropriate for the vindication of federal rights.

But it is not simply a question of state procedure when a state court of last resort closes the door to any consideration of the claim of denial of federal rights.

And what is the effect of the denials of habeas corpus in the number — and that is the effect of the denials of habeas corpus in a number of cases now before this Court.”

“Unless habeas corpus is available, therefore, we are led to believe that Illinois offers no post-trial remedy in cases of this kind.

The doctrine of exhaustion of state remedies to which this Court has required scrupulous adherence of all federal courts presupposes that some adequate state remedy exists.

We recognize the difficulties with which the Illinois Supreme Court is faced in adapting available state procedures to the requirement that prisoners be given some clearly defined method by which they may raise claims of denial of federal rights.

Nevertheless, that requirement must be met.

If there is now no post-trial procedure by which federal rights may be vindicated in Illinois, we wish to be advised of that fact upon remand of this case.”

Luther L. Hill, Jr.:

If the states must furnish a post-conviction remedy for prisoners, then I think it clearly follows that that post-conviction remedy, if the teaching of Burns versus Ohio and Griffin versus Illinois means anything, that post-conviction remedy cannot be limited only to the rich.

It must be available to the poor and the rich.

It seems to me that is the philosophy of the two cases.

Now let me say that in Iowa there is a post-conviction remedy.

It is habeas corpus.

It is available to any prisoner of the Fort Madison Penitentiary who has $4.

It is not available to these two prisoners because they do not happen to have $4.

The State argues that this doesn’t make any difference because the petitioners have now exhausted their state remedies and can go to the federal courts.

It is true of course that in the federal courts there is an in forma pauperis proceeding.

Charles E. Whittaker:

Can I ask you a question?

Luther L. Hill, Jr.:

Yes sir.

Charles E. Whittaker:

Is it true we’re not that every prisoner up at Fort Madison has $4.

The State pays it, doesn’t it?

Luther L. Hill, Jr.:

Your Honor, work is made available by the State.

The affidavits of poverty filed in these cases, Your Honor, were not challenged — have not been challenged as far as I know by the State.

Whether these — I think for the purposes of this hearing, we must accept those affidavits as true, and in both cases they allege that they do not have the funds with which to pay the $4 fee.

This is something — in the Lee County Iowa District Court, this is something that the Court had considered these affidavits.

It’s certainly could have made an investigation to determine whether in fact the affidavits were true but this has not been done.

And so now as in the present posture of the case, I think we must accept the statements as being true, namely, they don’t have $4.

Now the federal courts probably will be open to these petitioners.

I might point out however that Iowa is in the Eighth Circuit and that it is the Eighth Circuit opinion, Willis versus Utecht cited on page 8 of the State’s brief that seems to hold that exhaustion of state remedies is not shown merely because of the poverty and consequent inability of the petitioners for writ of habeas corpus to obtain habeas corpus.

In that case which involved a Minnesota prisoner, the Ninth Circuit — the Eighth Circuit said, “The proper procedure under Minnesota law” and this after the affidavits of poverty were filed.

“The proper procedure under Minnesota law was to file an application for such a writ with filing fees in the District Court.

And that the decision of that Court was adverse then was appealed to the Supreme Court of Minnesota.

William J. Brennan, Jr.:

(Inaudible)

Luther L. Hill, Jr.:

That seems to be the whole — I say it seems to be because in that case they allude to the fact that the Supreme Court of Minnesota had special — had jurisdiction to issue a writ under special circumstances and they specifically say at one point in the decision that the special circumstances have not been shown, but then they go ahead with this other language to the effect of the remedy.

Now whether they are saying that they don’t believe the affidavit of poverty which is possible and that if the affidavit of poverty had been true, the Minnesota court would have allowed the writ under the special circumstances Your Honor, I don’t know.

But at any rate, I think the thing to observe here is that in Eighth Circuit it’s not altogether clear that these two petitioners can go to the Federal District Court.

It’s not altogether clear.

Now not only is that an area of perhaps some little doubt, but I think that it has been one of the hallmarks of our system that one set of court should have do regard for another set of courts.

Luther L. Hill, Jr.:

As I understand the opinions of this Court, it has been the view of this Court that it would be unseeingly for a Federal District Judge to pass on the decision of a Supreme Court of State without giving — or the courts of a State without giving the Supreme Court or the upper courts of that State an opportunity to pass on the alleged errors.

That’s what we have here.

The allegation is in the petitions for a writ are based on the actions of Iowa law enforcement officers, Iowa police officers.

And it seems altogether fitting on pauper that those allegations of unconstitutional acts should first be passed on by the Iowa courts before the matter is referred to the federal courts.

Now I think the State’s argument avoids another issue which seems to me to be at the heart of these cases, namely, the distinction between those who have $4 and those without.

I’ve alluded to this already.

As I said, Iowa courts are open to everyone with $4, apparently, $4 plus $3 when you go to the Supreme Court.

They apparently are close to those who do not have the $4.

The fact of the matter is that in Iowa there is a post-conviction remedy, a post-conviction remedy for prisoners with the means to obtain that remedy.

That set of prisoners can go through the Iowa courts.

The other set of prisoners, namely those without the $4, are to be sent to the federal courts.

It seems again that this is exactly the kind of an invidious discrimination or characterization which this Court struck down in Burns versus Ohio and Griffin versus Illinois.

Felix Frankfurter:

Mr. Hill, have you had opportunity to find out what the state of the law in the various states is regarding the duty believed to furnish, to bring the habeas corpus proceedings without a filing fee?

Luther L. Hill, Jr.:

Your Honor, I have not made an exhaustive survey.

I know that in Oregon because of the Barber case filing fees are not required.

I know that in New Jersey, there is an in forma pauperis proceeding, statutory proceeding apparently for habeas corpus.

How many other states — I would suspect it’s a minority, how many other states though have adopted the federal system — federal plan of having an in forma proceeding I do not know.

Felix Frankfurter:

Either explicitly or with reference to habeas corpus.

Luther L. Hill, Jr.:

I — I —

Felix Frankfurter:

It would less likely, I think probably where it is, there probably is a generalized provision, would you think so?

Luther L. Hill, Jr.:

I would think so.

I — I am sure that it’s not been done.

I’m sure that it can be of any kind that is not been done judicially, by judicial decision in any state other than Oregon.

And I am — I am —

Felix Frankfurter:

So, it’s a certain, It must be a certain fiscal difficulties for courts to do it.

I mean there must be appropriation for this, isn’t it?

Luther L. Hill, Jr.:

But I would assume again that where there is already a criminal in forma pauperis method or procedure, these same funds could be made available.

Felix Frankfurter:

It all depends on how legislation’s view.

You happen to know what the situation is in Illinois, with reference of Griffin, I believe, they appropriated $250,000 for —

Luther L. Hill, Jr.:

I — I do not know what the present situation Your Honor, I don’t know, Mr. Justice Frankfurter.

Luther L. Hill, Jr.:

In conclusion then, I think we can say that these two men are still in prison in Fort Madison.

No Iowa court has as yet passed on the merits of their claim.

We submit that philosophy of Burns versus Ohio and the Griffin case guarantees to these indigent prisoners a day in Court.

Certainly we cannot assume that their constitutional claims are not meritorious.

We would respectfully submit that this Court can hold one of three things, three routes to get it to this desired end.

This Court could hold that habeas corpus is essentially criminal in nature following the Kansas distinction, and therefore there is no distinction between Burns versus Ohio.

I rather suspect —

Felix Frankfurter:

Do you mean every — every habeas corpus or for —

Luther L. Hill, Jr.:

Every habeas corpus where criminal prisoners are involved.

Felix Frankfurter:

There criminal prisoners are involved.

Luther L. Hill, Jr.:

Yes sir.

Not habeas corpus where a wife is attempting to gain custody of children taken by the husband or something like that.

This is the distinction —

Felix Frankfurter:

But there are instances as Justice Stewart has indicated, there are procedural reasons for the distinction Tom Tong or such a case where the Court had to decide whether it was a final judgment, whether there was a final judgment or whether a certification was allowed by a divided court alone, if it was — if the case couldn’t come here on certification which said merely in criminal proceeding, that was there, the purposes of having direct review.

So that the determination of whether it was civil or criminal and that in Tom Tong, it’s quite unrelated to this problem.

Luther L. Hill, Jr.:

And as I think Justice Stewart pointed out, there are other consequences that flow, the time governance and so forth.

So I say I think probably, this approach by this Court is foreclosed.

Although saying it is essentially criminal in nature, does not necessarily strip it all of these other civil characterization.

Felix Frankfurter:

And as I you illustrate this, we just now have to make subdivisions for habeas corpus.

Luther L. Hill, Jr.:

Yes sir, which has been —

Felix Frankfurter:

One would have to say habeas corpus in relation to or following upon a criminal proceeding.

Luther L. Hill, Jr.:

Yes sir.

Which is what the Kansas court did at least.

But a second approach would be to say that habeas corpus is such an important proceeding involving, as it does, the liberty of the individual that it should be made freely available at least to those criminal prisoners who are seeking it without the interposition of a filing fee requirement.

A third approach would be the whole that the — and I think it would be a primitive —

Felix Frankfurter:

Let me stop you a minute.

Luther L. Hill, Jr.:

Yes sir.

Felix Frankfurter:

As to the second, that might apply to an impecunious mother trying to get hold of her child, gained by the father.

Luther L. Hill, Jr.:

I think Your Honor again, you could say that it is the liberty of the individual to make the distinction.

Felix Frankfurter:

If you are going to draw a line of importance, that’s just as importance.

Luther L. Hill, Jr.:

It is just as important.

I agree with that, but I think that there is available here a distinction.

It maybe a distinction without a real deference.

Felix Frankfurter:

What we are talking about in this case is that we —

Luther L. Hill, Jr.:

But it isn’t —

Felix Frankfurter:

— the category of — of —

Luther L. Hill, Jr.:

It isn’t — we don’t have a mother here seeking the child of course.

The third case which would avoid this latter — the third way of approaching this problem which would avoid the latter difficulty which you’ve raised, Mr. Justice Frankfurter would be to hold that the states, as I think perhaps you have done in Young versus Ragen, that the states must furnish a post-conviction remedy.

That being true, I think it necessarily follows that the post-conviction remedy must be open to rich and poor alike.

This distinction or this approach to the problem avoids the problem with the mother and avoids the problem of characterizing habeas corpus as a civil or a criminal proceeding, because it need be neither for this purpose, it is simply, in this case in Iowa, the post-conviction remedy, and as such it should be available to all alike.

Charles E. Whittaker:

Mr. Hill —

Luther L. Hill, Jr.:

Yes sir.

Charles E. Whittaker:

How soundly can one contend that states must provide a post-convictions remedy when, under the laws, as I understand it, they do not have to allow even a direct appeal.

Luther L. Hill, Jr.:

Well it seems to me Your Honor that — I will admit that the wording in Young versus Reagan is not quite as clear as I’d like to have it be and yet that seems to be the necessary implication of that decision, namely, that there must be some post-conviction remedy and the Court said, “If the Illinois does not have such a remedy, we want to be informed.”

Charles E. Whittaker:

Truly, because the federal habeas corpus could issue the statement.

But isn’t it true that the State doesn’t have to allow even an appeal so far as the Federal Constitution is concerned?

Luther L. Hill, Jr.:

That is — that is I believe true.

Yes.

This was said in Griffin versus Illinois, but once having allowed the appeal it must be freely available.

Charles E. Whittaker:

Oh surely to all.

Luther L. Hill, Jr.:

But it just seems to follow from the Young case that there must be a post-conviction remedy.

And certainly this has been the approach of the law enforcement official.

Earl Warren:

Even if the State Mr. Hill, even if the State was not required to have a post-conviction remedy, though it did supply one for the rich from a theory of Griffin, it would still has to supply one for the poor, wasn’t it?

Luther L. Hill, Jr.:

This would be — this would be following from the argument in Griffin versus Illinois once having supplied in one, it must be available to all.

William J. Brennan, Jr.:

Well that was not the (Inaudible)

Luther L. Hill, Jr.:

Well in that case, then you would have to, I think, again get at the essential nature of habeas corpus.

Now if you can ignore the criminal civil characterization which we’ve been talking about.

And if we can say that habeas corpus is a post-conviction remedy and not characterize it as either civil or criminal appeal, then it seems to me to follow very easily that you cannot offer habeas corpus to the rich and deny it to the poor, but this is to forget the ear marks that have been put on habeas corpus I think.

Earl Warren:

Mr. Hultman.

Evan Hultman:

Mr. Chief Justice, Honorable Members of the Court.

Evan Hultman:

I would have to, at the outset, conclude earlier by this battery of attorneys to as present together with the court reporters that both the petitioner here and the respondent are indeed paupers at least in comparison with the number of attorneys and counsel that are involved as far as the prisoner is concerned here today and the State of Iowa.

But I’m sure the Court will agree that the brevity of the briefs in this particular instance and that the lack of counsel as far as numbers, in no way, are a reflection on the importance of the issue which is before this Court and as being presented here today in the form as far as the two briefs are concerned, and most briefly in the case of respondent to wit ten pages and three lines.

The State, at the outset, admits the first proposition of the brief of the appellant here that a petition for a writ of habeas corpus cannot be filed in Iowa, nor can an appeal be taken in habeas corpus proceedings until filing fees are first paid.

I would hope here that the Chief Justice would be as kind to the State of Iowa as to the State of Illinois when he stated in the case at bar which is the primary case, the Ohio case that we’re referring to when he stated that the State’s commendable frankness in this case has simplified the issue.

Let it be known at the State of Iowa secondarily at this point, admits all of the items of record that have been alluded to by counsel with reference to the procedures, which took place up to the time this case has been presented to the Supreme Court of the United States.

But gentlemen, the State here prays that although the State of Iowa will be left upon in the same way that they’d be blessed with the different and a contrary decision.

That in the case of the Burns case which is the primary one to which it has been eluded here and which the Court has brought to the attention in granting this writ of certiorari.

Because it is the contention of the State of Iowa that we have two different cases all together involved presently from the Burns case, and the Griffin case, or in the case of Burns and Griffin, these two cases were concerned with one direct attack, if you please, direct attacks upon two criminal convictions, through the processes of three criminal appeals.

None of which are we concerned with here today as far as the issues which are acquired in the case before this Court today.

I would like to allude first of all to a premise with reference to the case of the State of Ohio that was referred to a little earlier here by one of the justices and was referred to shortly in Griffin case.

Where it has been stated by men of this Court in by other members of this Court in previous years, that a State does not have a duty under the Constitution of the State of — of the United States nor under the Constitution of the State of Iowa, in this particular instance, to provide even a method of appeal, let alone a post criminal conviction remedy.

The State does not even have to provide this as stated by members of this particular court.

But as this Court has positive, what you do provide and here again, get back to the box of the Burns and the Griffin cases.

If you do provide in the State of Iowa or in the State of Ohio in the case of Burns, or in the State of Illinois in the case of Griffin, then you must provided equally.

Gentlemen of this Court in Iowa, paupers are allowed to appeal from criminal convictions without the prior payment of filing fees by a statute, by a statute almost 100 years ago recognizing the basis that this Court in its decision in Burns long before this Court brought this case to the attention of the 50 states of this union.

Secondarily, likewise by a statute, State of Iowa provides again more than 100 years ago that filing fees and transcripts of record are a matter to be provided at state cost to a pauper.

But again differentiated completely in accordance with the Burns and Griffin cases in cases of direct attacks upon criminal convictions and criminal appeals.

Now I submit to this Court that here today we have an entirely different question being submitted and was ever submitted in Burns or in Griffin, because here are concerned with the nature of the writ of habeas corpus.

Iowa already provides for statute what is required by Burns and Griffin by this particular court.

So we must lock to the nature of the writ itself, and it is the contention of the State of Iowa that the nature of the writ of habeas corpus has from its very beginning, all through the period of history and to its present day been a civil action to gain a civil remedy, and this has been well settled by this Court and by other courts including the Supreme Court of the State of Iowa.

Nowhere as the definite distinction between habeas corpus and criminal prosecution, then we’re clearly set forth, then by this very Court in, ex parte Tom Tong.

I would like to quote because this is a very short decision but I think it’s very clear.

And I would disagree with the good Justice Frankfurter when you mentioned earlier a question that we have a different issue involved here today.

I believe we have the same issue as far as the nature of the writ itself.

The Court stated on this occasion that proceedings to enforce civil rights or civil proceedings and proceedings for the punishment of crimes are criminal proceedings.

In the present case, as the Court in Tom Tong was referring, and it was a criminal case, a criminal case where a poor Chinese store merchant was in violation of an ordinance of the City of San Francisco and a criminal charge had been brought against him and he sought the writ, the great writ of habeas corpus.

And the Court said in the present case, the petitioner has held under criminal process.

The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution.

On the contrary it is a new suit, a new suit.

Potter Stewart:

Is that a state of habeas corpus.

Evan Hultman:

This was a state writ Your Honor, yes, brought by him to enforce a civil right which he claims against those are holding him in custody under criminal process.

The proceeding is, when instituted by himself for his personal liberty, not by the government to punish him for whatever his crime maybe.

And here, gentlemen, I state to you, is the clear distinction.

Potter Stewart:

I suppose there’s nothing in the Constitution or anywhere else that would prevent a State if it wanted to from denominating a habeas corpus writ as a criminal proceeding.

Evan Hultman:

No.

It’d be very fine, but this will be in accordance with the history of the writ of habeas corpus which has been delineated and determined by statute.

In fact, as I will get to the little later argument here, the history of the — of the expansion of this right of — writ of habeas corpus has been statutory in nature.

It has not been constitutional in nature.

I think here is a clear —

Hugo L. Black:

Suppose — suppose Iowa did denominate a criminal statute, what would be your proceeding?

What would be your argument then?

Evan Hultman:

If — Your Honor, if it were a criminal proceeding and a criminal statute defined by the Code of Iowa, then most certainly, I would agree with the decision of the Court which I do agree with wholeheartedly.

The two cases which we have mentioned earlier, the Burns case and the Griffin case, if it is a criminal matter, most assuredly then, every individual should receive the equal protection of the law.

Hugo L. Black:

Can it be — can it be made in a more criminal matter than it is, exempted by the State labeling it as a criminal proceeding.

Evan Hultman:

I think this would have an effect, Your Honor, but I think it should have greater delineation than just that, because the writ applies to many, many, many instances other than criminal proceedings as the Court has mentioned earlier, for example of other, with this small child who is being detained under circumstances maybe under Court order for example, and the writ is being sought to obtain the freedom.

This most certainly is not a criminal proceeding.

It would never take the course of a criminal proceeding.

It is a civil proceeding, the same as the history of this particular writ as shown into the — from the very beginning.

Hugo L. Black:

My clarity was more limited to that where simply, I understood you to say that the State should simply as the statute is saying that hereafter a habeas corpus proceeding designated as criminal proceeding.

Would that change your argument?

Evan Hultman:

It most certainly would, sir.

Yes most certainly.

Earl Warren:

Mr. Attorney General, may I ask you to what issue is that language of the Tom Tong case directed?

Evan Hultman:

The opinion itself, Your Honor, but it’s just about a paragraph in length.

Earl Warren:

But was it — was it on the question of whether — whether he was entitled to file his petition in forma pauperis or was it directed to some other instance?

Evan Hultman:

No, it was not directed to a question of in forma pauperis.

No.

That is correct.

It wasn’t even an issue in Tom Tong.

It was delineation of the nature of the remedy itself and I think it’s very clear and can be argued at this point, the difference in the remedies here, because, for example, if we take — if we take the criminal procedures themselves and if the great writ is what it’s been contended here today, then it would most certainly be mandatory upon this Court to say that the criminal procedure is highly memorial as to bail or a violation of the Constitution of the United States, because in the case of bail, in a criminal procedure itself, we arrest the man at any given stage of the proceedings and money is the sole determination as to whether as a man remains in custody or whether he walks free with his personal freedom, even before there has been a determination if you please, as to whether he is criminally honorable or not.

Evan Hultman:

And so if you follow this thinking, this reasoning, then most certainly we must throw out the entire thinking of statute of all courts on the issue of bail, because here we are depriving a man before a court is even in a jury rendered a decision or a criminal appeal taken by direct access to the appellate courts before there has been a determination, if you please, of the man’s innocence or guilt.

We make a determination based on money as to whether he is to secure his freedom or we deprive him.

Earl Warren:

Mr. Hultman is that precisely the fact, doesn’t it, the judge make his decision on whether — on what is necessary to have the man respond to the criminal proceeding.

He can place him on his own reconnaissance; he can give him a bail that is within his means.

He has many different things that he can do.

It isn’t just a question of money on bail, because the Court, all the Court is interested in is to — is to have him respond to the criminal process.

Evan Hultman:

This is true.

I would agree with you, Your Honor, but in comparison to $4 and in comparison to $3 as we’re discussing in the instant case, in comparison with the two defendants, if you please, in this particular action, the sum of bail would be completely prohibitive in nature according to the argument here regardless of how much it might be.

Earl Warren:

Well, I know but it wouldn’t — suppose the judge — suppose the judge said to him, because you are an indigent and because we feel you will respond, we’ll release you on your own reconnaissance.

Evan Hultman:

Yes.

Earl Warren:

But if you did have some — if you did have some money, well we probably require you to use some bail.

Now that isn’t — that isn’t out of the ordinary; judges do that all the time.

Evan Hultman:

I would agree Your Honor but again, this is a matter which is permissive, on which the Court would agree.

Earl Warren:

Yes.

Evan Hultman:

And where the Court not permissive in my particular instance and declares the fund to be $100, $500, $5,000 or $10,000, if we follow this reasoning, then this act of the Court by the demanding of bail most certainly is in violation of the Constitution of the United States, the same as the requiring of a $4 or a $3 fee.

Even more so, the State argues, because this is in the criminal proceeding itself and a stage even prior to a determination as to whether or not the man is guilty of innocent.

Whereas in the present instance, we are requiring to something as I stated in my first major premise.

We are referring not to a criminal proceeding in the present instance, but we are referring to something on beyond criminal proceedings, the major premise of the State of Iowa that this is a civil remedy on beyond the criminal proceeding together with criminal appeal.

In the using of these writs, we believe that the convict in this particular essence is the plaintiff, the same as a plaintiff in any action to protect any of the personable rights.

And most certainly if this right of personal freedom is what it is, we have many rights which are of equal value, the right to protect, the freedom of speech, the right to protect the freedom of worship, all of these rights most certainly are as basic and as sound as the protection of individual liberty.

And yet all of us would agree, I am sure, that these are civil proceedings, these are civil rights, and that necessitates civil remedies, not criminal in nature.

The State of Iowa in this instance, if you follow this particular reasoning, is made a defense in a civil action by this particular defendant.

The burden is and should be in any civil action and in this particular instance placed upon the person bringing the suit, which —

Charles E. Whittaker:

Mr. Hultman.

Evan Hultman:

Yes.

Charles E. Whittaker:

The object of the suit is what, liberty, isn’t it?

Evan Hultman:

The object of the suit, yes, the object of the suit is that a wrong has been done, if you please.

He’s been deprived — wrong.

Charles E. Whittaker:

Of his — deprived of what?

Evan Hultman:

Of his personal liberty.

Charles E. Whittaker:

Alright.

Now then, does your argument mean that the substantive right to require into the legality of his detention depends upon nomenclature?

Evan Hultman:

No.

No Your Honor.

Charles E. Whittaker:

Is that what you call the proceeding?

Evan Hultman:

No.

No, Your Honor.

Charles E. Whittaker:

You didn’t call it civil or criminal?

Evan Hultman:

No Your Honor.

Charles E. Whittaker:

What’s the distinction?

I thought that was the right one.

Evan Hultman:

I can’t — this is the very point I’m trying to make Your Honor.

I can’t draw the distinction between the right of personal liberty and its value than I can the right of freedom of speech and the right of freedom of religion and the other rights which we hold justice here, all of which, if all has been considered as civil rights.

And this is why I cannot draw the distinction and why I believe that the writ of habeas corpus is a matter of determining a civil right.

William J. Brennan, Jr.:

(Inaudible)

Evan Hultman:

Well I didn’t mean just in answer to the good justice question a while ago, just a matter of nomenclature as such.

It would mean that a legislature of the State of Iowa in its process is declaring this to be a criminal right, a criminal writ, not just detaching a name, a nomenclature up here.

That was the basis of my answer to the question here.

The Iowa legislature, Your Honor just enacted, in just putting nomenclature to determine the basis of rights in order to courts of the State of Iowa and this would not be the basis of my answer to this question.

It would only be because the right itself has been given and putting a criminal form as a criminal right, this writ as a part of criminal procedure by statute in proper.

John M. Harlan II:

What would you — what would you think would you think would be the situation if the State pass a statute like the Federal 2255?

Evan Hultman:

I’m not sure that I follow the question, sir.

John M. Harlan II:

Never mind.

Evan Hultman:

I’m not sure if I follow.

Thus, we believe that that this writ is most certainly and always had been civil in nature.

Here I would like to allude just very briefly to the history of this particular writ.

In the case of the original Habeas Corpus Act, this Court is well aware of the fact that criminals, convicted criminals, were specifically even denied this right in its original form, in its original Act in 1679.

Criminals didn’t even have the right to use the famous writ, the writ of habeas corpus.

In fact as Justice Frankfurter points out in Darr versus Burford, the case which has been referred to earlier, until the Federal Act of 1867, only federal prisoners even enjoy this particular right of the writ of habeas corpus.

State prisoners didn’t even enjoy this particular right.

Evan Hultman:

And so is the position of the State of Iowa that this right has basically drawn and been expanded from a basis of statute in nature and not constitutional in nature.

Hugo L. Black:

What — what statute of 1867 were you referring to?

Evan Hultman:

This is the Federal Act of 1867.

It’s cited in the brief, Your Honor and has been referred to by Justice Frankfurter in the Burford, Darr versus Burford, case which is also cited.

Hugo L. Black:

Did I — did I understand you to say under them prisoners in the states have not been entitled to a writ of habeas corpus?

Evan Hultman:

As far as federal law was concerned, sir, as far as federal law was concerned.

In Iowa, most certainly before this time further, they were entitled to the writ of habeas corpus as they are now.

In the event, they filed a filing fee of $4 in the case of a District Court and $3 in the case of a Supreme Court.

Charles E. Whittaker:

Were they entitled to that remedy or not before 1689?

Evan Hultman:

No.

No sir.

1867, Your Honor.

The original Habeas Corpus Act, I would say is most certainly in Iowa.

But if we go beyond, if we go beyond to the point where we assume for just a moment which I don’t think that the State must do, if we assume that there are indigents in the State of Iowa or in any other state in the union that can’t afford, even though in the State of Iowa as our brief points out, even prisoners in the State of Iowa are gainfully employed and in a matter of a very few days, even prisoners have sufficient money to provide the basis for the filing for a filing fee because they —

Hugo L. Black:

Is that the issue before us?

Evan Hultman:

Pardon.

Hugo L. Black:

That issue, as I understood, was not before us.

I understood that there is no challenge —

Evan Hultman:

I am —

I can’t actually answer that question, Your Honor.

That was deposited by the other counsel.

I was not the Attorney General prior to the —

Hugo L. Black:

Well what does the record show?

Evan Hultman:

I am not just sure on this point, Your Honor as to what the record does show.

I think it does have bearing even though it has been admitted.

Let us assume for argument that it has been admitted by the State.

Hugo L. Black:

Why — why wouldn’t it have a bearing?

Evan Hultman:

I think it has —

Hugo L. Black:

The question would still be whether a pauper that’s been shown and not denied, whether a pauper would be allowed to get a writ of habeas corpus.

Evan Hultman:

I think it has a bearing for this reason.

Evan Hultman:

That this, as a counsel for the State will get to in just a moment.

This is one of the great dangers that are inherent in such an extension of the Act itself.

Do you think the basis in which (Inaudible)

Evan Hultman:

It’s in your brief.

It’s in the State’s brief.

It’s a matter of state law and I — pardon sir.

I suppose (Inaudible)

Evan Hultman:

Well I have referred to the statutes of the State of Iowa, which states that prisoners are gainfully employed Your Honor.

Well this is not an argument of counsel.

The statute is cited in the brief.

This is a fact by law in the State of Iowa that even prisoners are gainfully employed in the State of Iowa.

Earl Warren:

Do all prisoners get the money?

Evan Hultman:

Not in every instance.

They are eligible Your Honor.

But if —

Earl Warren:

How do you know that this man has gotten the pay?

How do we know?

Evan Hultman:

This — this Your Honor, I cannot — I cannot state.

No.

Earl Warren:

Yes.

We’re bound by the record, aren’t we?

Evan Hultman:

Yes, Your Honor.

It is believed by the State of Iowa that if such an extension were to be made that there are practical considerations within this extension as requested and wished here that would then lead be the seed of the destruction of the true value of the writ of habeas corpus itself.

Why?

Because it would do these things.

It would place an unbearable burden on the courts at all levels because, as this Court has held, this writ is not a matter of res judicata, it can be filed today, it can be filed tomorrow, it can be filed the next day, and everyday for the entire period that this prisoner is confined in a prison or institution of any kind.

Not only can he file it, but of course he can take the appeal and thus by making extending this rule of doctrine, making it completely free, we would be placing an unbearable burden on the Court.

We would be depriving, if you please, few who have meritorious claims, the few who do have and most certainly there are those who do a prompt and a fair disposition of their particular condition whatever it maybe, a writ of habeas corpus or anything else.

Potter Stewart:

How would you get a proper and fair disposition of their meritorious claims if they didn’t have to support them?

Evan Hultman:

If they did not, sir?

Potter Stewart:

Yes.

Evan Hultman:

I am referring to not just in the case of the writ of habeas corpus, but all proceedings of every kind, all criminal even a poet decisions of the Court in the normal course of a criminal action because of the tremendous load which would be placed upon the courts of a given state, this given district court where this penal institution is located, the Supreme Court of the State of Iowa, if you please.

Hugo L. Black:

Mr. Attorney General, did I understand you to say that, roughly speaking, all the nature of your institutions can straight to get a $4 if they really have to?

Evan Hultman:

Most certainly sir.

Most certainly.

All of their needs, clothing, foods, shelter, and everything, are provided as a matter of law first and secondarily these men are allowed to bear money, Yes Your Honor.

Hugo L. Black:

Are your all courts flooded with petitions of habeas corpus with these $4, with these available $4?

Evan Hultman:

We have had a great number of them Your Honor.

In fact there had been a great number filed just on the basis of this Court as was the case in the case of the Massachusetts and New Jersey courts when they likewise had —

Hugo L. Black:

But the $4 came along with it.

Evan Hultman:

Pardon, sir.

Hugo L. Black:

But the $4 accompanied the position.

Evan Hultman:

Yes, Your Honor.

Hugo L. Black:

And you think now if that they don’t mean that if the state to get $4, there would be an avalanche.

Evan Hultman:

There will be a great deal more, I am absolutely positive of this Your Honor.

I think — I think the record of other courts as cited in the brief who have referred to this very thing that is indicative of that thing.

Charles E. Whittaker:

(Inaudible) didn’t reach that however by denying their affidavits of poverty in such a case.

It would be an issue of question whether they have $4.

You didn’t — you didn’t do it here.

Evan Hultman:

That is true, but this will take a considerable amount of time and effort on the part of the Court.

Well certainly and I would not argue with the Court that this was not done here, because as I posited earlier, and I must be bound by the record of course, I was not the Attorney General of the State of Iowa at this time, and so I cannot speak as the Attorney General as to the action that was taken at that particular time.

Hugo L. Black:

Does the Attorney General’s office answer — make responsible for these petitions or the local county?

Evan Hultman:

They — in the case of the first filing of the writ in our lowest court, Your Honor, it would be the County Attorney of the given county.

In fact, in response to the question asked earlier, the last long distance call I had before I left the State of Iowa was from the County Attorney from this very county positing the statement which I just previously made to the Court.

Earl Warren:

I was wondering in the preparation of your argument about the avalanche it would flow from any such rule if we made any comparison between the number of petitions for habeas corpus in your state and those in Oregon where they — where they do permit them to file in forma pauperis.

Evan Hultman:

No.

I cannot Your Honor.

This I cannot.

I do not have the statistics —

Earl Warren:

I am sure we get more in this Court from Iowa.

Earl Warren:

Now we do from Oregon.

Evan Hultman:

Well there — in that instance, Your Honor.

I think it’s well to point out in just before closing and I shall close that the Oregon case and the federal case which has been posited here following the Oregon case which was based upon the decision that the Oregon court made, it’s very interesting to me to see the position which the Oregon court took there and the language that they used.

They used the language that the basis for their position in the State of Oregon was the fact that they felt they posited that this Court would thus make the extension to the area of the case that we’re arguing here today and thus the Oregon court is bound and they use very strong language that this was the determining basis for them making their decision.

In conclusion, the writ of habeas corpus, we contend, is a civil and not a criminal procedure.

The questions of our liberty have long been decided in civil actions brought to them to enforce them and in Iowa, one who institutes a civil action, must pay a reasonable filing fee.

It should not those who make use of our courts to enforce their fundamentals of liberties bear at least a nominal share of the burden.

It is submitted that an extension of the burden of proof to one of these basic liberties would require an extension to all of them.

Why should the line be brought at a writ of habeas corpus for civil liberty?

Why not for the prosecution of rights of free speech and of all of these other most precious liberties, which are just as important, or the rights of child custody or confinement in mental cases?

The Burns case is the logical, the legal, and the practical line of demarcation, the line between criminal and civil rights and criminal and civil procedure.

Therefore, respondent respectfully urges that this Court upholds the constitutionality of the Iowa statutes in this particular essence.

Earl Warren:

Mr. Hill, would you like to —

Luther L. Hill, Jr.:

There’s nothing further —

Earl Warren:

You have nothing further.

Before we recess, Mr. Hill, on behalf of the Court, I should like to express our appreciation to you for having accepted this assignment as a public service.

We’re always comforted when lawyers will do that.

And we feel that the interest of justice has always made more secure by reason of it.

So we appreciate it.

Thank you very much.

And Mr. Attorney General, we thank you for the very diligent, very arduous way in which you are protecting rights of your own statement.

We adjourn now.