Tate v. Short

PETITIONER:Tate
RESPONDENT:Short
LOCATION:Edward Coolidge’s Home

DOCKET NO.: 324
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: Texas Court of Criminal Appeals

CITATION: 401 US 395 (1971)
ARGUED: Jan 14, 1971
DECIDED: Mar 02, 1971

Facts of the case

Question

Audio Transcription for Oral Argument – January 14, 1971 in Tate v. Short

Warren E. Burger:

We’ll hear arguments next in Tate against Short.

Mr. Dorsen you may proceed whenever you are ready.

Norman Dorsen:

Thank you.

Mr. Chief Justice and may it please the Court.

This case, arising in Texas is a sequel to the decisions last term in this Court in Williams v. Illinois and Morris v. Schoonfield.

It involves the imprisonment of an indigent for an inability to pay certain fines imposed for traffic offenses.

The facts are not in dispute.

Petitioner, Mr. Tate, committed several traffic offenses in 1966.

These offenses included driving without an operator’s license, driving a car with expired license plates and going through a red light.

Neither alone nor taken together were these offenses punishable by a jail sentence.

They were —

Potter Stewart:

How many different times was he arrested for driving a car without an operator’s license?

Norman Dorsen:

There were nine offenses.

Potter Stewart:

Operator’s license?

Norman Dorsen:

I think there were three of those.

Potter Stewart:

Any indication why he didn’t go down and get a license?

Norman Dorsen:

No, there’s nothing in the record on that.

Potter Stewart:

How much do they cost?

Norman Dorsen:

I don’t know that.

It’s probably $10.00 or so, $2.00.

Potter Stewart:

$2.00.

Norman Dorsen:

Neither alone, as I said, or taken together were these offenses punishable by a jail sentence.

Petitioner was tried on two of the traffic offenses in 1966 in the Houston Corporation Court, a court whose jurisdiction is limited by statute to offenses punishable by fine alone.

He was convicted on the two offenses and fined $75.00, but the judgment was not executed.

This was explained by petitioner at the subsequent habeas corpus hearing on the ground that he had paid a lawyer to appeal the convictions. In fact, the lawyer failed to perfect the appeal.

If the appeal had been perfected, petitioner would have been entitled to a trial de novo in the county court and relieved, at least temporarily, from the obligation to pay the fines.

Instead, as I’ve said, the convictions became final, but there’s nothing in the record to indicate that petitioner ever knew that this had occurred.

Petitioner’s attorney incidentally has since been disbarred for other reasons.

Petitioner was not tried on the remaining traffic tickets until August 7, 1968.

He appeared then in the same corporation court, the court with jurisdiction only to punish by fines, and he pleaded guilty to the other charges.

Norman Dorsen:

The judge imposed fines which when added to those outstanding from 1966, totaled $425.00.

Petitioner being indigent was unable to pay the fine.

Pursuant to Texas statutes and the Houston Code, he was dispatched forthwith to the Houston Prison Farm to serve 85 days in jail, or one day for each $5.00 of the fine, the statutory rate in Texas.

The relevant statutes are found on page 3 of our brief.

Now, this was on August 7, 1968.

On August 28, 1968, petitioner commenced a habeas corpus action and was released the same day on a bond posted by a friend.

He had served 21 days and the unpaid fine was now $320.00 which would subject him to 64 additional days in jail.

Harry A. Blackmun:

That same friend didn’t help him out with the fines?

Norman Dorsen:

No he did not Mr. Justice Blackmun.

The hearing on the habeas corpus petition was held in the County Criminal Court on August 30, excerpts from the record of which appear in the back of petitioner’s brief, not in the brown appendix.

The certiorari petition contains the entire record of the habeas corpus petition — of the habeas corpus hearing.

The County Criminal Court denied the habeas corpus petition and the Texas Court of Criminal Appeals affirmed and the case then came here on certiorari.

There’s one further important factual point I’d like to make at the outset.

Although the state in its brief seems to dispute the fact that petitioner was indigent as of August 1968, when he was sent to jail for nonpayment of the fine, it is in fact perfectly clear from the record that the state had stipulated during the hearing in the habeas corpus petition that petitioner was “poverty stricken and that his whole family has been for all periods of time therein, and probably always will be.”

This is in the appendix brief, page 7a.

Thurgood Marshall:

Did he own a car?

Norman Dorsen:

That does not appear in the record.

The reason that that was not explored Mr. Justice Marshall is that the garnishment provisions in the law of Texas exempt levying on the car of a married man, so that car couldn’t have been used to pay the fine.

Thurgood Marshall:

Well, he could’ve sold it?

Norman Dorsen:

Well, he might have done that.

Thurgood Marshall:

Well, what happens if a man has 64 charges of driving without a license, reckless driving and doing bodily harm with an automobile and he’s broke?

Norman Dorsen:

Well, the first thing that has to happen is — if he has no money, the court as this — the lower court, the criminal court as this Court said in the Williams case last year has several alternatives.

One is, if he has the possibility of earning some money to stretch out the fine over a period of time.

If that won’t work, another alternative is to find a job for him or put him to work on at the prison farm or something of the sort, but not to confine him 24 hours a day.

Thurgood Marshall:

Well you know the prison farm isn’t —

Norman Dorsen:

No, no.

What I have in mind there is what the A.B.A. in its minimum standards of sentencing provides, they call that partial confinement.

The study by the A.B.A. concluded that in the case of the kind —

Thurgood Marshall:

Well, I’m sure Texas doesn’t have one?

Norman Dorsen:

No, they do not, they do not.

Warren E. Burger:

Would that be a constitutionally any less offensive if he was only confined 12 hours a day instead of 24?

Norman Dorsen:

Well, if he were confined only for the purpose of having him work out on a job, the fine we suggest would not be constitutionally offensive.

In other words, if the man cannot pay, if it’s clear as Mr. Justice Marshall’s hypothetical put it that he wasn’t able to pay, our first constitutional requirement following the Williams opinion is that perhaps he might pay if the fine is stretched out over a period of time.

Warren E. Burger:

Wouldn’t that be something at least resembling involuntary servitude if the sentence of the court was that he fend 12 hours a day at the local prison farm, at least eight hours of which should be spent working at $2.00 an hour?

Norman Dorsen:

I don’t think it would be because of course there is a specific exception in the Thirteenth Amendment for persons convicted of a crime, but even more important that —

Warren E. Burger:

But this —

Norman Dorsen:

The state — we are not claiming, I wish to be perfectly clear, we are not claiming that the state is powerless to get at the kind of person that Mr. Marshall’s — that Mr. Justice Marshall’s question referred to.W

e say that the state can take certain action.

The first thing they should try to do is to use the installment method.

If that doesn’t work, if there’s no likelihood that the installment method would work, the kind of arrangements for working off the fine over a period of time might be an alternative.

Now, the A.B.A., the commission to study the federal penal code, all examined this extremely difficult problem because on the one hand as I’ve indicated, the state should not be powerless to proceed against an individual.

On the other hand, the underlying principle of the Williams case as I understand it is that for the person who is without funds to put him into jail immediately, which is what happened here.

There was no hearing, there was no exploration of the possibility of using these other techniques, we say that in a situation like this, the court should deal carefully, to use the phrase that Mr. Justice White used in his concurring opinion in the Morris case, with the man who is without funds, not exempt him, not exempt him because as I think the Chief Justice’s opinion pointed out, there could be a reverse discrimination in the case of a person who is indigent who won’t be able to be proceeded against in any way at all, we are not claiming that.

We’re saying that if a man has, as this man had, fines totaling $425.00 or whatever the sum would be that the lower court must deal with that person individually, that there must be a hearing, this also is suggested by the A.B.A. and by the commission to reform the criminal law, and deal with him in terms of his particular situation.

It’s possible in this case for example since he was getting a veteran’s check I think of a $104.00 a month that he would’ve been able to pay out the fine say $5.00 a week or something of this sort.

The infirmity in the procedure here we’re suggesting is the immediate transference of an individual who is poor to jail without exploration of the various alternatives that were reviewed in the Williams case.

Thurgood Marshall:

Will that if this get a — this $425.00 out of figure?

Norman Dorsen:

Pardon me?

Thurgood Marshall:

$425.00 figure, I would assume maybe he got a $100.00 a month, he could’ve paid that two buck fine.

Norman Dorsen:

Well, he had a wife and two children and a $104.00 a month —

Thurgood Marshall:

Well, for example he could’ve bought a little less gasoline and paid the $2.00 fine.

Norman Dorsen:

Well —

Thurgood Marshall:

And I want to suggest the one thing, it might turn out to be it was gasoline.

Norman Dorsen:

Well —

Thurgood Marshall:

What I mean is $2.00-fine is different from a $100.00?

Norman Dorsen:

I think that’s right.

The problem we have on this record, Mr. Justice Marshall, which is — which from another point of view is relevant to the question you’re raising is that the trial court did not do what we say is constitutionally required, and that is explore the very questions that you’re raising.

What we’re saying is that the lower courts in these situations can not just take a person who hasn’t got the funds and put him in jail.

We are not disputing the implications of your question, as I understand it, Mr. Justice.

We’re saying that as the Williams case said, the choice is illusory for a man without funds.

Norman Dorsen:

That does not mean he should be exempt.

I want to emphasize that again and again because I think that’s a critical factor in cases of this kind, but that the lower court cannot just take him and put him in jail that more is required by the constitution to fulfill the mandates of the cases cited in Williams and the philosophy of the Williams case itself as I read it.

Potter Stewart:

And that’s or you say Mr. Dorsen could be met by Texas if it showed upon investigation, find that this man is to be sure not able to pay the whole $425.00 now, but that he can reasonably afford to pay $10.00 a month —

Norman Dorsen:

That’s correct.

Potter Stewart:

— that he does get it the very least a $104.00 a month from the veterans —

Norman Dorsen:

That’s correct sir.

Potter Stewart:

— whether or not he’s employed or —

Norman Dorsen:

That is correct sir.

Potter Stewart:

— and that — so then they are in to do that, and he doesn’t pay the $10.00 a month, can they then put him in jail?

Norman Dorsen:

Well we would say in a case like that that the court should then hold the kind of informal hearing —

Potter Stewart:

Well, it’s had the hearing and it’s found that he can afford to pay $10.00 a month out of a $104.00 a month, then he doesn’t pay it, then can they put him in jail?

Norman Dorsen:

I would say that’s a case of willful refusal to pay and they could put him in jail.

We are not claiming that in the case like that and I think that the Chief Justice’s could express the reserve —

Potter Stewart:

And that even this Court — even this Court which other Texas law has no power to do anything but fine people as you point out, nonetheless you concede that under the constitution, it could put him in jail if he didn’t pay the $10.00 a month?

Norman Dorsen:

We would concede that the willful refusal and I think it’s pertinent in that connection because I’m glad that became clear that —

Harry A. Blackmun:

Mr. Dorsen, let me interrupt you now and help me out in this respect.

I’d like to change the facts a little bit.

I suppose if the statute were only one sided, that for this offense, ten days in jail, would you be here then, rich or poor?

Norman Dorsen:

If the fine were only $10.00?

Harry A. Blackmun:

No, if there were no fine, the statute were ten days in jail for this offense, the statute ordinance?

Norman Dorsen:

I assume we would not be.

Harry A. Blackmun:

You would not be here.

I guess my question then is, if you were to prevail here in this lawsuit, would not the resulting tendency in ordinances and statutes be to make all these offenses punishable only by imprisonment?

Norman Dorsen:

There might be such a tendency.

It’s hard to speculate that what would happen in each state.

The fact of the matter is I think Mr. Justice Blackmun that many states now provide for the kind of arrangement that we are suggesting and some of those as I understand it to have — have not changed the law regarding to sentencing.

But I would like to emphasize one other point which I think is related to your question.

The state makes much of the point and I think that perhaps one or two of the questions that have been asked indicate a concern about it that this is a scuff law.

That this is a fellow who’s just oblivious to the normal restrictions that all of us would feel are binding in connection with operating a motor vehicle or a license, and therefore, perhaps he should go to jail.

Now our position on that is two-fold. One that the state, as you suggest, can provide for jail sentences in cases of this kind, repeaters, people who are chronic violators.

Norman Dorsen:

The State of Texas, the legislature of the State of Texas has not chosen to do that.

The second point I would — but we are emphasizing that that would be a perfectly valid mode of correctional philosophy.

The second point we would emphasize on this problem of, to use the word the state uses, the scuff law, is that if people are going to go to jail for being scuff laws, rich people should go to jail as well as poor people.

That if a fellow were a playboy or a fellow who had some money in one way or another and violated the traffic laws of the State of Texas, and I assume there have been some people who’ve done that in Texas as well as in New York and other states, we say that the law should be applied equally to the rich and the poor.

Texas could decide to put them in jail.

We are not at all disputing that power.

In this connection —

Harry A. Blackmun:

My only suggestion is that if you prevail here, you may provide an impetus for just that thing, and of course it ties in with the thinking of some people that one of the solutions to our traffic carnage is to impose differ —

Norman Dorsen:

That may well be.

I would not to dispute that as an original question.

I might say in connection — in terms of the state’s interest, the state at several points and very understandably from its viewpoint, suggest that this would be terrifically inconvenient for the state to do, terrifically inconvenient to do the kinds of things that the A.B.A. has suggested, that the commission to reform the federal law, Federal Criminal Code has suggested that Maryland now does, that Delaware does, that California does.

Now, we say that that is — that the inconvenience problem is to use the vernacular, a red herring, that all the state already has a probation apparatus.

It already has people who are concerned with sentencing — the statutes of the State of Texas provide incidentally for installment payments of fine above $200.00 in another connection.

If you are fined above $200.00 and there’s a conditions for probation — as a condition for probation, the court is in powered under the Texas Criminal Code to provide for installments that they don’t — that the state doesn’t find that inconvenient.

And the American Bar Association which went through for all of this, at great care, concluded that it is not too much to ask in the interest of equal protection to treat the people without funds of little bit more carefully.

I might say, I pass the point by, I suppose it may have been implied in what I said that this case is really like Williams in the critical respect that the maximum sentence that can be provided for offenses of this kind is zero days, which brings it within the opinion of the Chief Justice and the concurring opinion of the due process theory by Mr. Justice Harlan.

The amicus curiae, I might say, the National Legal Aid and Defender Association, which has come into this case, amicus curiae suggest that this is even a worst case than Williams, a more severe deprivation of constitutional rights because here, you’re not just adding to an existing jail term but you’re substituting jail for a pecuniary penalty.

Potter Stewart:

What was the maximum fine I wonder that he could’ve totaled, aggregate fine?

He did get a $425.00, how much could’ve he been fined, a few thousand?

Norman Dorsen:

It’s not clear on the record.

The maximum that this Court could impose for any offense was $200.00.

Potter Stewart:

Per offense?

Norman Dorsen:

That’s right.

So 1800 would’ve been the presumably the absolute jurisdictional limit, but they may have been the sure the limits for –.

Now there’s another aspect to this case, it is not our principle point, but we would like to stress it, and that is that the idea of exchanging a man’s freedom for $5.00 a day strikes us as being itself implicitly irrational.

When one thinks about how any person in the middle class or with comfortable means or just not an indigent, would feel about his freedom and to translate that precious thing, being the most precious thing we have for $5.00 seems to us over the line.

And of course the American Bar Association,in rather strong language, in rather strong language made a similar point in which it said, I think it’s on page 12 of our brief that — page 16, I’m sorry, page 16 of our brief, saying it even more strongly than we did that the exclusive use of a dollar a day ratio both presents the possibility of a brutally long sentence and provides as a measure, an arbitrary figure which makes no economic sense and which bears no relation to the factors which ought to govern the choice as to the length of the sentence.

Warren E. Burger:

When was the statute passed in Texas?

Is it some statute from that in the turn of the statute?

Norman Dorsen:

It’s a rather old statute, I believe.

Norman Dorsen:

Texas — a hundred years ago, 120 years or I think in 1850 had a statute which provided for installments of some kind.

It was repealed I think in — well that the state will correct me on that, but it’s not a new statute in the State of Texas.

Warren E. Burger:

Well, I suppose you’d agree in terms of the economic argument you’re making that at the turn of the century, $5.00 a day might not be irrational, might not have been irrational?

Norman Dorsen:

Yes.

Well that’s correct.

I — we’re not making a moral judgment on the legislature of Texas in making this claim.

I think perhaps notions of fairness of change as well as the declining value of the dollar, and it seems to me that as one court, an Ohio court incidentally held, we cite the case in that long footnote on page 16 that $3.00 a day was irrational.

We would say $5.00 a day is just unacceptable in terms of fundamental fairness and —

Thurgood Marshall:

It would be the same if there was a thousand dollars to pay your argument would be the same?

Norman Dorsen:

That’s correct.

I’m just emphasizing this other aspect which is a separate point, and it is not as you point out a principle point.

Warren E. Burger:

I take it if you from your argument that he could be put on a state prison farm and required to work eight hours a day out of $2.00 an hour rate or something, perhaps something geared to the minimum —

Norman Dorsen:

Yes.

Warren E. Burger:

— wages under the federal act that he could also be put on a road gang, on a construction job, or any other work under compelled state supervision.

Norman Dorsen:

I think he could be.

I would not think that the state should use that as its first alternative.

I think they should follow the recommendations made by the American Bar Association and the commission that —

Warren E. Burger:

When you say the state should follow, you’re then talking in terms of advice to the state legislatures.

How can this Court or any court give advice to the state legislatures?

Norman Dorsen:

I did not mean to put it that way.

What I’m suggesting is that we deal here with the deprivation of liberty.

It seems to us fully consistent with this Court’s hearing — opinions in a variety of cases that the state should use the least restrictive means in enforcing its laws.

Now this fellow, as we discussed earlier happened to be someone who was of a special kind perhaps, but that does not mean he’s an outlaw that he should be, you know, condemned totally.

He should be given an opportunity to pay it off, and he could have perhaps and this incidentally is relevant to our second principle point and that is that the lower courts in these cases, we assert respectfully, have to hold some kind of hearing.

Some kind of proceeding to find out what’s happening in these cases and they can not be just mass produced justice and a — an automatic incarceration.

If I have any time left, I’d like to just reserve a minute or two for rebuttal.

Warren E. Burger:

Very well Mr. Dorsen.

Joseph G. Rollins:

Mr. Chief Justice and may it please the Court.

At the outset, we would like to discuss what this case does not concern.

It does not concern any troubles that Preston A. Tate that may have had with his lawyers.

Joseph G. Rollins:

We think that this is not in the case nor is it — does it involve any arbitrary action on the power of the State of Texas in charging $2.00 for a driver’s license, that’s not in the case.

The case actually boils down to the fact that this man, Preston A. Tate, ran a red light in the City of Houston and the policeman stopped him and as part of their routine procedure, they asked him to show his driver’s license.

He didn’t have a driver’s license.

He went in to corporation court, plead not guilty.

The jury found him $50.00 — fined him 50 on one offense, they could’ve gone at 200, they fined him 25 on the other.

That very same day at 6 p.m. that evening he ran a stop sign and fortunately, a policeman saw him and stopped him and again he was arrested, and then subsequently he ran up a total of nine traffic offenses.

Potter Stewart:

What was he — did I understand you say that he — Texas found him guilty of two offenses for not having a driver’s license on a single day?

Joseph G. Rollins:

No sir, the day of his trial, the day that the jury found him guilty and fined him a $50.00-fine and a $25.00-fine that same evening — the offense had occurred I think a week or so earlier, but then on then on the day of his —

Potter Stewart:

Yes but — the day of the trial, you mean he was coming homing from the trial?

Joseph G. Rollins:

No — I doubt it Your Honor, because it was 6:30 something p.m., and I don’t believe that he would be coming home from the trial, but nonetheless, it was the same day.

He ran a stop sign and again was arrested, or given a ticket, he wasn’t arrested and that is something else that we would like to point out here.

They say that he was immediately and forthwith taken to jail.

He, over two years, expired between the time of these offenses and the time of his habeas corpus hearing.

And although he might have had a wife and child at the time — and two children at the time of the habeas corpus hearing, he had no children when he committed these offenses.

In other words, there was enough time lag in there for him to father two children.

So I don’t think the State of Texas has really been forthwith on this thing.

In fact, I think perhaps we could be — if we were to be criticized, we could be criticized in dragging our heels, and not bringing this thing to the head before now.

Another thing in the petitioner’s brief, they question the jurisdiction of our corporation court and I think he answered his question when he stated that the corporation court could put a man in jail after he had failed to pay his installments.

Well now, if we can put him in jail after failing to pay the installments, we could — we’d have the jurisdiction beforehand.

And besides, our Texas Supreme Court and Texas Code of Criminal Appeals says that the corporation courts and the JP courts have the right to enforce their orders by incarceration, and I don’t — that is in our briefs, and I don’t think that it would serve any purpose to argue that further.

The —

Thurgood Marshall:

What effort was made during this year of two period to collect the fines?

Joseph G. Rollins:

That Mr. Justice Marshall, I don’t know.

Thurgood Marshall:

Well now at the hearing when he was sent away, what happened there other than that you don’t have the money so you go?

Joseph G. Rollins:

Yes sir, that’s it.

Thurgood Marshall:

That’s all?

Joseph G. Rollins:

Yes.

Thurgood Marshall:

Well, it would’ve been possible to find out whether he could’ve paid it in installment?

Obviously, the judge could’ve asked one question “Can you pay this $10.00 a month?”

Joseph G. Rollins:

There is no provision in our law for paying a misdemeanor of this type out in installments.

Thurgood Marshall:

Well, is there anything in your law that prohibits it?

I would assume —

Joseph G. Rollins:

I’d —

Thurgood Marshall:

— at least I would assume that in this particular case, if the judge had said on the day he was fined $75.00, you have got two years to pay this $75.00.

There would be no question about that.

You could do that under the Taxes law, could you?

Joseph G. Rollins:

Two years?

I don’t believe, Mr. Justice Marshall that —

Thurgood Marshall:

Well isn’t that what happened?

It was two years before he got around to ask him for it?

Joseph G. Rollins:

It was two years before they — actually what happened here, they had some capiases out for him on some of these other subsequent offenses, and they finally arrested him.

They finally ran him down.

Now whether we didn’t run hard enough for not, I don’t know.

Thurgood Marshall:

You didn’t deliberately delay that that was —

Joseph G. Rollins:

No sir, no sir.

In fact he was, as I say, and I was not on this case in the trial court level, and I’m not as acutely familiar with the facts as I should be, but my understanding is that there was about seven capiases working on him simultaneously.

They were looked — our police department was looking for him.

Hugo L. Black:

Did he have all one of the defense for these cases?

Joseph G. Rollins:

Seven of them were nolo contendere, and two that the jury — he pled not guilty on two, the jury found him guilty.

Hugo L. Black:

What was his defense?

Joseph G. Rollins:

I don’t know sir.

I don’t — when a person gets caught red handed running a red light, I really don’t see a much defense.

Hugo L. Black:

Well, I asked what his defense was, or has been?

Joseph G. Rollins:

In the habeas corpus hearing, their only defense was that he was too poor to pay the fine.

Warren E. Burger:

To pursue Justice Marshall’s question about installment payments, I assume Texas charges interest on its outstanding fine, wasn’t it?

Joseph G. Rollins:

No sir, we do not.

Warren E. Burger:

So at least he doesn’t have $3.00 a month interest running on him —

Joseph G. Rollins:

No sir.

Warren E. Burger:

— on that $10.00?

Joseph G. Rollins:

No sir.

Joseph G. Rollins:

And to continue with Justice Marshall’s question, I don’t believe that a judge, or justice of the peace would have the authority under our law to set up his own little time payment plan.

I don’t believe that when the law says that the fines shall be collected in certain manner, I don’t believe that each JP in all of our many counties could set up his own little empire so to speak on how he’s gong to collect these fines.

Thurgood Marshall:

I assume you’re also make the point that it’s different from when he first was picked up and convicted and got $75.00 if the judge had said “Either this or you go to jail.”

And this case where by the time they got around to him, he had nine other charges against him. I think those are two different cases, don’t you?

Joseph G. Rollins:

As far as the equity is yes, but as far as the law is concerned, we think that the — when the man could have — if he had just obeyed the law right there, none of this trouble would’ve happened, but he chose to disobey the law.

He chose to drive without a driver’s license for — he admitted on the habeas corpus two-and-a-half years and as of last week, he hadn’t got a driver’s license yet. And we don’t think that of course as far as the question of law involved, the degree of a man’s perversity probably shouldn’t have anything to do with it, but nonetheless, it certainly should be something that we should not be blind to.

Thurgood Marshall:

Mr. Rollins, my final point is the same judge does have right of probation, and do you not have a probation department in Houston?

Joseph G. Rollins:

No sir, not on this —

Thurgood Marshall:

I think that they could it — no, but I’m — you do have a probation department?

Joseph G. Rollins:

The district attorney has a probation department, and they — but on this type of fine, there is a city ordinance which allows the judge to delay collection of the fine 30 days —

Thurgood Marshall:

I see.

Joseph G. Rollins:

— upon application of the defendant.

He did not do this.

How do you distinguish the Williams case in last term from your case?

Joseph G. Rollins:

Your Honor, the Williams case by the specific language of the court, and I think at least ten times in Mr. Chief Justice Burger’s opinion, he emphasized that what the Court was condemning in Williams was an instance where they had a statute which provided for imprisonment, regardless.

And in addition in this same statute, there was a provision for a fine and what this quote said, at least the way I read it and I believe that’s what the concurring opinion in the Schoonover case also said was their interpretation of it, was that this quote said that when you transmute a fine into equivalent jail time that that cannot extend beyond the maximum jail time provided in the statute.

That was what was before the Court.

They — I believe you all said that you had a very limited question, and that’s what you decided on, but I was impressed by the number of times that Mr. Chief Justice Burger in his opinion kept referring to that circumscription of the case to a cases where it extended the total incarceration period beyond the period set forth in the statute.

And in this case, this is a case where the only sanction for a violation of this statute was a fine only.

We submit and we think we have shown it in our briefs that in cases like this that our other statutes which provide that upon failure to pay a fine, it maybe laid out in jail at $5.00 a day.

We think these two statutes should be construed in para materia.

In other words, to show that the legislature intended that the man should not get off scot-free, but that if he would pay the fine that’s fine.

If he couldn’t, then he would have to lay it out in jail.

Warren E. Burger:

Mr. Rollins, in the appendix, the opinion of the Court in Williams last year, there was an effort to summarize what various states did.

And as to Texas of course, it didn’t purport to be complete, but it was recited that he maybe, the defendant found guilty and fined, maybe put to work or imprisoned for a sufficient length of time to discharge the amount.

Is there a provision, a workout provision, under Justice of the peace fine, or —

Joseph G. Rollins:

Your Honor, I can answer that for the City of Houston, that we have an ordinance which provides that if he will go — voluntarily go to what we call our P. Farm, he can work that out at $7.50 per day.

Tate refused to go to the P. Farm incidentally, but I don’t think that’s here —

Warren E. Burger:

Well, wouldn’t you think that’s — how does that appear?

Does that appear in the record?

What was that?

Is that here?

Joseph G. Rollins:

Is that — was that in the habeas corpus?

It’s not in the record.

Warren E. Burger:

Well that’s a rather important aspect in view of what was said in the Williams case about alternatives, wouldn’t you think?

Joseph G. Rollins:

Your Honor, the — actually as far as principle is concerned, I don’t see that there’s any difference in incarcerating him or he can just lie around in jail and talk to the boys in the cell, or go out and work on the prison farm.

It’s —

Warren E. Burger:

Well maybe we might conceivably take a different view of the matter?

Joseph G. Rollins:

Yes sir, that’s obvious sir.

But you asked me the question called, I can’t see that the principle is that the man is being restrained of his liberty involuntarily.

Warren E. Burger:

Professor Dorsen didn’t — certainly, he didn’t argue that there was anything constitutionally impermissible, you recall, I’m not sure —

Joseph G. Rollins:

But, I couldn’t understand —

Warren E. Burger:

— necessarily would agree with that, but since all of the treatment of this difficult problem has dealt in terms of alternatives, it’s conceivable that even at the rate of about a dollar an hour which Texas allows, plus presumably some food on a workout day, you might have a different case from the case you have without that evidence in the record.

Joseph G. Rollins:

Your Honor, did you say a dollar an hour?

Warren E. Burger:

You said a 8 — $7.00 and a half a day.

Joseph G. Rollins:

Oh!

That is on our — that’s the city ordinance.

Warren E. Burger:

That’s roughly —

Joseph G. Rollins:

Yes sir.

Warren E. Burger:

— a dollar an hour and I suppose they give the man something to eat when he’s — during this working day?

Joseph G. Rollins:

Yes sir, I can say that we feed real good.

But —

Warren E. Burger:

Only — that might be quite a different case from the one you have here?

Joseph G. Rollins:

Your Honor, I cannot see the difference.

The man — well, what would be the difference then?

And my answer to that question by asking a question, what if we had a chain gang and lease the amount to the private road contractor and say now “If you go out here and work on this chain gang out in the hot sun, well, we’ll let you off a lot sooner.”

I can’t see the difference in principle and the idea is that man is being restrained from getting out in society, that’s the punishment.

And we believe that in a case like we have here where the legislature has stated that sanction shall be a fine, and then another statute which we think ought to be construed in para materia that if he does not pay the fine, then he has to go to jail.

We think that that is entirely different and we would submit, there’s two early cases out of California which we did not include in our brief, but I would like to submit to the Court, it’s In re. Wadley in 23 Pacific 190 and In re. Rosenheim, 23 Pacific 372.

Warren E. Burger:

Will you furnish us with the memorandum of those citations —

Joseph G. Rollins:

Yes sir, I certainly will.

Warren E. Burger:

— and your friend?

Joseph G. Rollins:

And Your Honor, I would like to point in the Wadley case, in a concurring opinion, Mr. Justice McFarlane mentioned that there — classified the three types of sanctions for misdemeanor fines: imprisonment only, fine only, imprisonment plus fine.

In In re. Rosenheim, there was a situation very similar to the situation that was before you all in Williams.

And the court there, in the California court said that the language of the statute had an ambiguity because if the legislature had really wanted or had clearly wanted the fine to be transmuted to jail time and added on to the imprisonment time, they could have clearly so said, but that they didn’t, and that the misdemeanor had a constitutional right for California to pursue its policy of strict construction of the statute against the state and for the prisoner.

In which case and they further stated that if the loose construction that the state wanted in that case were followed, then it was possible for a judge to do by indirection what he could not do by directly and I believe you all used that same phrase in Williams.

Harry A. Blackmun:

Mr. Rollins.

Joseph G. Rollins:

Yes sir.

Harry A. Blackmun:

How long have you had your P. Farm ordinance?

Joseph G. Rollins:

Long before the times germane year.

Harry A. Blackmun:

Is it judicially noticeable?

Joseph G. Rollins:

Your Honor in Texas, city ordinances are not.

Our Supreme Court or our District Courts cannot take or do not take judicial knowledge of city ordinances.

They do have city charters.

So in strictly legal point of view, I would presume that a court could not take judicial knowledge of a city ordinance which sets up the —

Potter Stewart:

Well, what the Texas law might be is to judicial notice doesn’t necessarily govern what the law might —

Joseph G. Rollins:

Well —

Potter Stewart:

— be here as to judicial notice?

Harry A. Blackmun:

In any event, why don’t you supply us with a citation of those ordinances or copies of them — of it when you give the other citations —

Joseph G. Rollins:

Yes.

Harry A. Blackmun:

— as the Chief Justice has suggested?

Joseph G. Rollins:

Yes sir.

It is in our city code and if the Supreme Court can take judicial knowledge of our City of Houston Code, well the problem is solved.

And —

Warren E. Burger:

Even if we can judicially notice those factors, we can’t judicially notice that the record in the habeas corpus proceeding shows that he refused to take this alternative.

In fact, the record is blank on this.

Joseph G. Rollins:

No sir, if it’s not in the record, I don’t think he can.

Warren E. Burger:

Is there any — was that before the Texas Appellate Court?

Joseph G. Rollins:

Your Honor, I don’t know.

I don’t think it was.

Warren E. Burger:

Well, I have no idea whether a motion to supplement the record would be granted or not, but you’re certainly are free to make such a motion?

Joseph G. Rollins:

Yes sir, I will certainly do so.

And Your Honor, in what little time I have remaining, I would like to protest very vigorously about this idea of making the State of Texas or City of Houston or any other state kind of adopt, I guess it’s going to be something like the American Automobile Association has for their subscribers.

They go out and pay the fines for you and its just all the part of the service.

We don’t think that the Fourteenth Amendment by the wildest stretch of the imagination could require a state to set up a credit card classification of petty crimes and misdemeanors that —

Warren E. Burger:

Well, are you referring now to the installment?

Joseph G. Rollins:

Yes sir.

That’s — in other words, that’s what really what you’re asking is that or what he’s asking is that the sheriffs and chiefs of police just set up credits with people like Preston Tate and let him pay it out at so much a month or at then how it’s going to take the wisdom of Solomon and the sophistication of a computer that hasn’t ever been invented to correlate the man’s family size, his personal sensitivity, his — the value of his car which he has committed the crimes with and all of that into a jumble and come out and say “Alright now, for you, it’s going to be $4.75 a week.”

And then does he propose that in addition to having Solomon setting judgment on this that then we have another hearing on — say that I have a $2.00 parking meter violation in the City of Houston and I go down there say “I’m too poor” then are we going to have a separate hearing on my guilt vel non.

And then another hearing on whether I was telling the truth when I said I was too poor?

And if I was just about half right on that too poor, well then is the judge going to have to figure out how we’re going to space those payments out?

And another thing, if we have these installment payments, the people are going to start getting behind that’s just human nature then we’re going to have all sorts of Civil Rights cases coming up about our — the way our deputy clerks go out and try to collect the fines that they used harsh language.

And we’re going to — we think that this is just leading to a Serbonian bog that we never will see our way clear off.

And I think that before we stretch the Fourteenth Amendment to mean something that clearly was not written in it, I would like to leave in parting with the idea that the poor people in Houston in Texas outnumber the rich.

They’ve got the ballot and the suffrage, and if they think the way we have collected their fines is wrong, they can elect city councilmen and state legislators to change the law.

That the poor people of Texas have not done so would be indicative that this law and the way we carry it out is not oppressive and is not unworkable.

But especially since the Fourteenth Amendment did not have the — and I would like also to point out that the same Congress that wrote the Fourteenth Amendment was also the same Congress that passed on our constitution, and that we had to submit that constitution and ratify the Fourteenth Amendment before we could get back in the Union.

That same Congress that wrote the Fourteenth Amendment thought our state constitution was all right.

And we submit that this is strictly a matter of local concern and that it would be beyond the wildest stretch of imagination to require the State of Texas to — and the City of Houston to set up this installment payment, But Your Honors if you do, please tell us exactly how to work it because the District Courts are going to be working overtime each one with the mutually conflicting subjective idea of what a proper installment should be and the proper collection procedure should be.

And I can see of all three-man courts being convened all over Texas and all over the nation for matter, trying to determine whether the installment payment met the hood cost of living index or whether we should go on the guaranteed minimum income as an index for fiscal or in penal responsibility.

And then Your Honor, I would like to add one thing.

What about the people that just won’t pay?

We ought to have some right to do that and we submit that it is our local — that this is within the province of our people and our legislators.

Thank you.

Hugo L. Black:

Do you have any law in Texas to provide for the forfeiture of automobiles that used by people constantly?

Joseph G. Rollins:

No sir.

The — a married man — a married man’s automobile is not subject to execution.

We had a populist inspired legislature in the early 1880’s that just took care of what the constitution didn’t take care of and if a man, if a married man is prudent enough in Texas not to have a bank account, he can go free.

Warren E. Burger:

Mr. Dorsen.

Norman Dorsen:

Thank you Mr. Chief Justice.

Norman Dorsen:

I think that first of all that some of the catalogs of alleged horrors that my friend from Texas has referred to are really unrealistic, and I would just refer the Court rather than go in to the details to the case cited in our reply brief, Arthur v. Schoonfield which is the Maryland case that was back on remand from the Morris v. Schoonfield case, in which the three-judge court, there are only two judges sitting, the three-judge federal court reviewed in detail the new Maryland statute and showed, I think, very clearly in that statute and in the way the court discusses it how this method of collection can work consistently with Williams and Illinois and without undue burden on the state.

I’m advised by my co-counsel from Texas that the P. Farm that was referred to that is not discussed at all in the record, is not really what — I had first thought my friend from Texas was referring about.

As I understand it from Texas council that everyone goes to the P. Farm, the so called P. Farm, but the people who work there, who agree to work get $7.00 a day for working.

Now, that’s not the same thing as I was suggesting before, because what we were suggesting before was, absent the willfulness problem which I certainly want to reemphasize that the state is not powerless under the constitution to incarcerate somebody who willfully refuses to pay the fine.

But absent that —

Potter Stewart:

The P. Farm, is that capital P period for abbreviation for prison, or is it pea where they grow peas?

Norman Dorsen:

I think it’s the first, the former.

That we stand on the alternatives as discussed in the Williams case.

I want to be very clear about that, that the installment process is one process and the work process is another.

But 24-hour a day confinement is not necessary in the absence of willfulness to deal with this problem.

And as I said a moment ago, the Maryland case and the Maryland statute I think make this abundantly clear.

Another case recently decided by the Supreme Court of California almost unanimously which is in the appendix to our reply brief, the Anzano case reaches the same conclusion.

I just want to clear up finally in half a minute a timing problem that may not been completely clear and this is my final point.

And that is that after Mr. Tate was convicted and fined $75.00 in 1966, as far as this record shows and there was no attempt to impeach Tate’s testimony at the habeas corpus hearing on this point, as far as the record shows, he had no way of knowing until 1968 that that money was due.

His lawyer had been disbarred and his lawyer apparently had failed and this case also to perfect the appeal.

We think in conclusion Your Honors that —

Hugo L. Black:

What — Can I ask you what Mr. Tate’s occupation is?

Norman Dorsen:

I’m not sure what his occupation was.

He had some odd jobs, but I’m not sure what his occupation was.

Hugo L. Black:

What kind of car was this?

Could you show there.

Chrysler.

Norman Dorsen:

What?

Chrysler.

Norman Dorsen:

Chrysler, I don’t know the year?

Do you?

No?

We —

Hugo L. Black:

Doesn’t show the model?

Norman Dorsen:

Doesn’t show the model?

Norman Dorsen:

Well I’m just going to say in conclusion that we regard this case in the essential principles as indistinguishable from the Williams case and we therefore respectfully request the Court to reverse the judgment below.

Thank you.

Warren E. Burger:

Thank you Professor Dorsen.

Thank you Mr. Rollins.

The case is submitted.