William H. Rehnquist: We'll hear argument next in Number 91-1353, Thomas F. Conroy v. Walter Aniskoff. The spectators are admonished to remain silent until you get out of the courtroom. The Court remains in session. Mr. Klonoff, you may proceed.
Robert H. Klonoff: Mr. Chief Justice and may it please the Court: Section 525 of The Soldiers' and Sailors' Civil Relief Act excludes a service member's period of military service from any period provided by law for the redemption of real property forfeited for nonpayment of real estate taxes. The issue here is whether a service member must show hardship in order to invoke section 525. We submit that the courts below, in imposing such a requirement, violated this Court's case law and statutory interpretation for three reasons. First, section 525 by its plain language imposes no hardship requirement. Second, several other sections of the statute do impose a hardship requirement, while other sections, like section 525, do not. This confirms that Congress acted deliberately when it did not impose a hardship requirement under section 525. Third, this Court has made clear that statutes providing benefits to service members should be liberally construed. For these reasons, we submit that this Court should enforce the statute as written and decline respondent's invitation to rewrite the statute on policy grounds. The facts in this case are simple, and I will spend just a moment on them. At the time of trial, Colonel Conroy had been on continuous active duty in the U.S. Army since 1966. He purchased the property at issue in May 1973, and paid all real estate taxes between 1973 and 1983. He did not pay his taxes in '84 through '86, having received no tax notices from the town. The Town of Danforth seized his land under Maine law and sold it in two parcels to respondents Aniskoff and H. C. Haynes in December 1986. Upon learning of the sale, Colonel Conroy acted promptly in asserting his rights. When Aniskoff and Haynes refused to give up the land, Colonel Conroy brought quiet title actions based on section 525. The trial court held that despite section 525's clear language, a service member had to show hardship from military service, which Colonel Conroy did not do. The Supreme Judicial Court of Maine affirmed the Superior Court by an equally divided vote and did not express any reasoning. We submit that this case should be controlled by this Court's decision last term in King v. St. Vincent's Hospital. At issue in King was a National Guard member who sought a 3-year leave of absence from his hospital employer to join the Active Guard Reserve program as a command sergeant major. He claimed that under the plain language of the Veteran Reemployment Rights Act he was allowed to return to his job with the same seniority, pay, and vacation as if he had not left. The hospital denied the leave request on the ground that the period requested was unreasonable. Although the statutory language contained no limits for leave requests, the lower courts... both the Eleventh Circuit and the district court... imposed a reasonableness requirement because of their concern about the burdens placed on employers of allowing employees to return after long leaves of absences. This Court unanimously reversed... Justice Thomas did not participate... because, really for the same reasons that I am urging here: 1) the language of the section at issue was clear, 2) other parts of the statute, by contrast, explicitly imposed time limits, and 3) the statute provided benefits to members of the armed services. The Court acknowledged that the statute was harsh, but refused to rewrite the law and noted that that was Congress' job. Here, we have an identical situation. The language of section 525 is absolutely clear, and there has been no claim as far as I know on any case that there is an ambiguity in section 525. Under this Court's case law, we submit that the clear language of the statute should be the end of the matter. However, it is even clearer than just the language of section 525 alone, since a review of the statute indicates that several other sections, unlike section 525, impose a hardship requirement explicitly, and we cited numerous examples on page 12, footnotes 11 and 12, of our opening brief. We have also cited a number of examples of other parts of the statute that, like section 525, contain no prejudice requirement, so it seems to me quite clear that the statute was very carefully drafted and that when Congress wanted to impose a hardship requirement, it did so explicitly, and we point for example, section 560, which is of particular interest, since right within the same section you've got juxtaposition of a hardship and no-hardship standard.
Antonin Scalia: Mr. Klonoff, the statute really doesn't say that any property sold in violation of the Federal prohibition is not effectively sold, does it? Is that a matter of State law? I mean, could Maine law say that if this statute is violated and we goof and make the sale within the 18-month period, a good faith purchaser nonetheless has title, and maybe you have a cause of action against Maine but not against the BFP?
Robert H. Klonoff: I don't think that the State could do that, they could override the statute. There are a variety of causes of action--
Antonin Scalia: Well, they're not overriding the statute. The statute doesn't really say that the transfer shall be ineffective, does it?
Robert H. Klonoff: --Well, it has that effect.
Antonin Scalia: If you say so, but I mean, that's what I'm asking. Why does it have that effect? It doesn't say that it has that effect. It just says, you know, that you have to give him more time. Okay, I have, and you got me, I broke the law... so sue me. I mean, maybe he has a cause of action against the State of Maine, if that's what Maine says.
Robert H. Klonoff: But the whole concept of a redemption is the right to actually... if title is passed, the right to take back title. In Maine, the way the law is constructed is title doesn't even pass until the end of the redemption period.
David H. Souter: You're saying that Maine does not have the authority to give title until that period is passed, and because it is tolled Maine therefore can never give even... cannot even give a good title subject to defeasance later.
Robert H. Klonoff: Not inconsistent with the statute. We read the statute as allowing the serviceman, if title is transferred and there's a period of redemption, to take the title back. I suppose what could be done, since it talks about any period of redemption provided by law, is, I suppose, to not have any redemption period in this situation.
David H. Souter: No, but I just wanted to make sure that I understood what you were saying to Justice Scalia, and I thought the theory that you were espousing was that because the period of service is not included... cannot be included in computing the redemption period, that the redemption period never runs. Because it never runs, Maine, or the town, whatever it is, never acquires the authority to give any title at all. Isn't that your theory?
Robert H. Klonoff: Well, that's right, but in some States the title actually will pass, subject to the redemption. If there's a redemption statute, the way it works is that the title would be returned.
David H. Souter: But that's not the way it works, on your view, in Maine, is it?
Robert H. Klonoff: No, that's right. In Maine it doesn't work that way. So as we indicated, these sections and the juxtaposition in 560 makes clear that Congress knew how to pose a hardship requirement when it wanted to do so. And finally, as I indicated, this Court has made clear in a number of cases that statutes of this sort must be liberally construed in favor of the serviceman. The court below... the trial court... did not make a textual argument, but instead expressed concerns about the possible impact of purchasers of property if service members are allowed to come in years later to redeem their property, but as in King, we submit that any such concerns are for Congress and not for the court. We think that in this case the lower court misunderstood its role, believing that if a statute was harsh, a court could ignore the plain language, but under this Court's case law a court is almost never permitted to ignore the plain language on policy grounds, and certainly not for the reasons offered below. This Court has made clear that the statute literally read must be patently absurd, with consequences so bizarre that Congress could not have intended them, and it's been phrased in a number of different ways. In the Crooks case from 1930, which has been cited in Griffin and TVA v. Hill, it was made clear that it's not enough that it's merely absurd, and that oftentimes laws have effects that weren't contemplated, but it's for Congress to decide the issue. And this Court in a number of cases... Griffin, has said that harsh consequences are not enough, a situation where a seaman was entitled to receive over 300,000 dollars from an employer because of a 412 dollar withholding of wages. The TVA v. Hill, which involved a multimillion dollar dam project which was stopped near completion, the Court said that the result was curious, but not enough to override... and numerous other cases that this Court... and this Court has made clear in Estate of Cowart that even if a statute could be characterized as stark or troubling, it is the duty of the court to enforce Congress' language even if the court questions its wisdom. Now, looking at section 525 and actually juxtaposing 525 with the situation in King, we would submit that there's not even an absurdity, let alone a situation that's so patently absurd that Congress could not have intended it. In King, for example, it's interesting to note that the 3-year period was not the end of the possibility in that situation. There was a question asked at page 6 of the oral argument in that case, in the transcript, about whether or not the period could be renewed four times for, say, 12 years, and the answer that the Assistant to the Solicitor General gave was that theoretically that's possible. She didn't know of a case, but theoretically it was possible, and the situation, then, you have in King, was somebody coming back 12 years and basically... and in King, for example, the individuals reflected in the Eleventh Circuit opinion was the manager of security could come in 12 years later and just walk in and demand his job back after somebody had been hired and so forth. And so really, that is or could be a harsh and troubling situation, but it was not enough, and in fact the Court... although the Eleventh Circuit resolved the case as a matter of absurd consequences, this Court in King didn't even address the absurd consequences at all, and just said that the matter was for Congress to consider.
John Paul Stevens: May I ask you a question about this case just to get it fixed in my mind? If you win, what it means is the period of redemption has not yet expired--
Robert H. Klonoff: That's right.
John Paul Stevens: --And therefore your client has a right to redeem, and I gather your position is he will retain that right to redeem as long as he remains on active duty.
Robert H. Klonoff: Well, he's actually now retired, although that's not reflected--
John Paul Stevens: Well, then he just has the right to redeem as of now, so he could be compelled to exercise it within a fixed period of time, could he?
Robert H. Klonoff: --That's correct. I think pursuant to the stipulation that we set out in our brief and that's set out in the opinion, I don't believe there's any issue in terms of either side complying with State law, but formally in this situation you would make a tender.
John Paul Stevens: He would have to make a tender of the back taxes plus interest, whatever the statute provides for redemption.
Robert H. Klonoff: That's exactly right.
John Paul Stevens: If you had a person... you don't, as I understand it... who was still on active duty and he's perhaps going to serve another 15, 20 years, would he have the right under the statute, under your view, to say to the property owner, I haven't decided what I want to do. I just want to make it clear that the period of redemption hasn't run yet, and I'll make up my mind just before I get out of service.
Robert H. Klonoff: He would have that right, and I think then the property owner would have civil causes of action available, and that would be true, by the way, to the taxing authority. They could sue for damages, they could levy against--
John Paul Stevens: They could sue for the back taxes.
Robert H. Klonoff: --Exactly, levy taxes. Let me just say, though, you're positing, I think, a situation in which somebody would really have an incentive to want to stretch the period of redemption out, and that's what the lower court was talking about, posing the situation of somebody waiting 30 years and simply not--
John Paul Stevens: Well, I suppose the practical matter is he might well be willing to sell the property for a sum. He might well be willing to sell his right in the redemption period for a cash sum. These things often settle for a cash basis--
Robert H. Klonoff: --That's correct.
John Paul Stevens: --And the longer the period, the more of a nuisance rights he has, the better bargaining position he is in in that negotiation.
Robert H. Klonoff: Well, that's correct, but let me provide, if I could, some perspective on that, because really what we're talking about and the assumption, I think, of the so-called absurd consequences is the idea of a service member who has a valid and just debt just really out of reasons for dishonesty not paying off the debt and trying to abuse, if you will, the rights that are provided. We don't think as a practical matter this is going to arise. There are a whole array of remedies available that the military has. For example, Article 134 of the Uniform Code of Military Justice, the Army has regulations--
William H. Rehnquist: What does Article 134 provide that's relevant to this case?
Robert H. Klonoff: --Well, what it provides is that an individual can be court-martialled for conduct of a nature that would bring discredit on the Armed Forces, and there are a number of cases, such as United States v. Sivinovich, the U.S. Army Court of Military Review of 1988, applying that precisely to the bad debt situation.
John Paul Stevens: Does it bring discredit on the Armed Forces to exercise rights granted by Congress to an officer of the United States Army?
Robert H. Klonoff: That's what the Court has held, if there is a just debt. Let me go further, though, than just the Article 134. The U.S. Army has specific regulations at part 513 of 32 C.F.R., which says that if a soldier is not trying to resolve unpaid debts promptly, or complaints of the sort are received, punitive measures can be provided such as a denial of reenlistment, administrative separation from the service or other sorts of punishments.
William H. Rehnquist: Those may well deal with individual cases, Mr. Klonoff, but if we're now turning to the bad consequences of adopting the position you say the statute requires, I think perhaps from the point of view of the State or the town, it's simply an inability to sell at a tax sale. The titles simply are too uncertain.
Robert H. Klonoff: Well, we would respectfully disagree that that's the outcome. Even if there were a prejudice requirement, you'd still have an issue about military service. There are all kinds of reasons why there might later be a cloud on title, such as a fraudulent deed, ineffective notice, or failure to comply with the requirements of a tax sale. Many States have requirements that... there's a redemption period for a period of mental incompetence, and what is done in these tax sales, traditionally what was done in this case, is the execution of a quit claim deed, which means, in effect, that the purchase gets whatever, any title there is, and so the State could go forward, if it can't ascertain the situation, and actually sell the property, and the risk--
William H. Rehnquist: Yes, but a quit claim deed is a good deal different than... you can't get title insurance on the basis of a quit claim deed.
Robert H. Klonoff: --Well, that's correct, and that's why a person purchasing the property takes all kinds of risks, and this is something, along with many other things, that can be looked into. I would note that, for example, the statute, section 581 has a certification procedure, and in Maine, for example, it's very common for lawyers to write to the Armed Forces and actually get a determination whether someone is in military service. In many of these situations, the people in question are there locally and so the issue can be resolved.
Anthony M. Kennedy: Did I understand you to say that Maine can proceed in personam for the amount of the delinquent taxes against the property owner?
Robert H. Klonoff: Yes, that is right. That is a remedy that's available. It's by statute, and it's absolutely clear that they can pursue a civil remedy. Now, of course, you're going to have the array of other Soldiers' and Sailors' Act provisions kicking in, such as the default provisions and so on, but there are these alternative remedies. I would like to, if I could, reserve the balance of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Klonoff. Mr. Manning, we'll hear from you.
John F. Manning: Thank you, Mr. Chief Justice, and may it please the Court: I would like to begin by addressing Justice Scalia's question about the bona fide purchaser. The statute contains one provision which explicitly addresses when a bona fide purchaser of land can obtain relief when a transaction is affected by the Soldiers' and Sailors' Civil Relief Act. That is provided in section 520 of the Appendix, which deals with default judgments. If a default judgment is entered against a service member, and the service member can show within a specified period subsequent to his military service that he was prejudiced in his ability to defend the suit because of his military service, he can have that judgment vacated. The provision explicitly provides that any property obtained by a bona fide purchaser for value pursuant to that judgment will be protected against the vacation of that default judgment by the service member. Now, this illustrates one important point... two important points. First, under section 525, there is no similar protection, so the right to redeem is tolled irrespective of any State law that would protect a bona fide purchaser. Second, it shows that the statute is a very carefully drafted provision for the protection of service members. Mr. Justice Brandeis stated, writing for the Court in--
Antonin Scalia: The Federal Government might have wanted to protect by Federal law a BFP in the one situation, and decided not to protect him by Federal law in the other, but left it open to the State to protect him. Isn't that a conceivable explanation?
John F. Manning: --It is conceivable, Justice Scalia, that that is the case, but it seems to me more likely, given the comprehensiveness of the statutory scheme and the extent to which Congress was careful in specifying which remedies would and would not be available and the desire of Congress to protect the service member from various State law judgments and liabilities during the period of service, that it's much more likely that the force of section 525, which is broad and absolute in its terms, must be taken as preemptive of any State law right to vest the title in a bona fide purchaser. Otherwise, a State could simply, by a variety of State rules, eliminate a protection that is broad, that is mandatory, and that is unqualified in its application. Along the lines of the implications of the statute, I'd like to point out that as Justice Brandeis said in Ebert v. Poston, this statute was so carefully drafted that very little is left to conjecture, and given the act's disparate inclusion and omission of a prejudice requirement in its various sections, the failure to include a prejudice requirement in section 525 must be understood as a deliberate policy choice. Congress carefully considered when prejudice should, and more importantly should not, be a factor in awarding relief under the act, and it obviously decided that in section 525 it should not be awarded... it should not be a factor in the relief granted. Now, to highlight a point that Mr. Klonoff made, I'd like to direct the Court's attention to section 560 of the Appendix. Section 560 specifically addresses--
William H. Rehnquist: When you say, of the Appendix, are you referring to the Appendix to your brief?
John F. Manning: --No, I apologize, Chief Justice Rehnquist, it's the Appendix to title 50, where the act is codified. Section 560 of the Appendix to title--
William H. Rehnquist: Is that cited anywhere in your brief?
John F. Manning: --It is cited. It's cited and discussed in the text, Your Honor. The Appendix to title 50 provides relief from tax sales of certain kinds of property. Now, the property at issue here is not among the classes of property that's covered by that provision. It relates to... in terms of real property, it relates to residential, business, professional, and agricultural property owned by the service member at the commencement of service and still owned at the time of the tax sale. If a tax sale is to occur under that--
Antonin Scalia: Owned and occupied, now.
John F. Manning: --Owned and occupied by the service member or his dependents or employees. If... before a tax sale can occur, a court order must be obtained for that type of property, and the service member or his dependents may get a stay of the tax sale during the period of military service unless the service member's ability to pay or his dependents' ability to pay the taxes is not materially affected by the military service. So there is an explicit prejudice requirement contained in that provision which supplies relief from the tax sale itself. In the very next provision of section 560, the act provides that the period of redemption, the right of redemption or the right to bring an action for redemption, shall extend throughout the period of the act and for 6 months thereafter. It has no mention of material effect of military service. It has no prejudice requirement in the text of the statute, and that provision, which dates back in its original form to the 1918 legislation, shows that Congress intentionally distinguished between the kinds of relief it would be providing for tax forfeitures, and when it got to the point of redemption, it decided to provide an absolute protection that extended without regard to prejudice throughout the period of military service. Now, respondents don't claim that the similarly worded language of section 525 is ambiguous. What they claim is that the Court should not apply the statute as written because of the practical consequences of allowing a career service member to redeem his property throughout the period of military service without a showing of prejudice. Now, apart from the fact that the practical consequences argument is foreclosed by this Court's decision in King v. St. Vincent's Hospital, the statute as written is far from absurd. Respondents don't claim that it's absurd to redeem the tolling provision... to toll the redemption provision for service members in general. What they claim is that it is absurd to do so without a particularized inquiry in each case into whether there has been prejudice. Now, that is simply not absurd. Congress, because the period of redemption is the last safety valve before property is lost irrevocably, it is perfectly rational for Congress to have decided that it would provide service members with the assurance that their property would not be lost forever during their period of military service. Because of its self-executing nature, section 525 provides service members with the peace of mind that they will not have to rely on a court's determination in hindsight that this or that tour of duty was or was not prejudicial to their ability to redeem their property, and so what it does is, in effect, it gives the service members an effective right to wait their period of military service before exercising their right of redemption, otherwise we doubt that many service members would take the risk that a court would, in hindsight, find that they had not been prejudiced by their tour of military duty.
Anthony M. Kennedy: I take it the provision which allows for the collection of taxes on real property does not apply to him, though, because he was not occupying it for a dwelling.
John F. Manning: That's right. It was vacant land that he was holding to have as a vacation spot. Finally, I would like to point out that the uncertainties that respondents note, and the cloud on tax title that they assert as the absurdity in this case, would exist even if there were a prejudice requirement under the statute. If a service member were entitled to toll his redemption period upon a showing of prejudice, it would be equally difficult, indeed, impossible to tell from the chain of title whether there was a service member in the chain of title, and whether the service member's particular tour of duty was prejudicial to his ability to redeem. Because the statute is clear, because the structure confirms the statute, and because of the canon requiring liberal construction of a statute for the benefit of service members, the judgment of the Supreme Judicial Court of Maine should be reversed. If there are no further questions--
William H. Rehnquist: Thank you, Mr. Manning. Mr. Cuddy, we'll hear from you.
Kevin M. Cuddy: Mr. Chief Justice, may it please the Court: At issue here today, as has been discussed, is the statutory foreclosure by the Town of Danforth on 170 acres of open land in Maine for unpaid taxes, and the subsequent sale of these lots to respondents Aniskoff and Haynes. As has been stated, the former owner, Mr. Conroy, was in the military service at all pertinent times here, and he had residences in South Portland, Maine, and also in Wisconsin. The petitioner here contends that the status... the uniformed status that he enjoyed as a serviceman shields him from his responsibilities to pay taxes because of section 525.
Byron R. White: In a timely fashion.
Kevin M. Cuddy: In a timely fashion, Your Honor, yes. Thank you. We contend that he uses that status as a sword, really, to unfairly inhibit the Town of Danforth from collecting its tax revenue and to unreasonably deprive good faith purchasers of title in the real estate. We... I think counsel collectively has done the Court a disservice, apparently, because we have not included for you section 560, as far as I am concerned, in any readily available form so that you can look at it right now, because I agree with these gentlemen, section 560 is important. Not having any expertise in this when this case was brought to me, I looked at 560, because it's the particular section that seems to apply here, and I read it through, and I checked to see, did this fit within the area of someone who owned real property that was occupied for dwelling purposes or professional purposes or business or agriculture? No. It's open land. It doesn't apply. But as these gentlemen called it to my attention, I looked at that subsection (2). That subsection (2) of section 560 indicates that the court must be asked to approve a tax sale if a tax sale takes place under 560 when the court feels that the military service did not materially affect the ability of the military person to pay tax. The court will approve the sale if it feels that the military person's ability to pay tax was not materially affected by his military service.
William H. Rehnquist: Did you set forth section 560 in your brief, Mr. Cuddy?
Kevin M. Cuddy: I make reference to it, Your Honor. None of us, unfortunately, have reprinted the statute in its entirety in any of our briefs or any of our appendices.
William H. Rehnquist: I would suggest to each of you that if you plan to do that in the future you should not... you should very definitely set forth the statute in your brief.
Kevin M. Cuddy: I fully appreciate that, Your Honor, and I apologize on my behalf--
Byron R. White: So what's your conclusion on what you've just said?
Kevin M. Cuddy: --My conclusion, Your Honor, moving forward from that point, is that this Court in the LeMaistre case back in 1948, which in the last 46 years is the only case which dealt with this section... back in 1948, this Court said, with respect to section 560, 560 and 525 supplement each other, and 560 gives greater protection... greater protection than 525. What the petitioner is suggesting is in fact because of his military status as a service person 525 gives him absolute protection. This Court has already gone on record indicating in LeMaistre that it is 560, the particular section, that gives the preferred position, the greater protection, to the serviceman.
John Paul Stevens: Help me with just one thing, though. I don't know whether it's greater or less, but 560 deals with approval of the sale, whereas 525 deals with redemption.
Kevin M. Cuddy: 525 deals with redemption periods. 560--
John Paul Stevens: After a sale has taken place.
Kevin M. Cuddy: --Right. 560 deals with a sale if there is in fact a tax deficiency and the mechanics for doing it, and in 560 there's a reference to the remedies from section 501 to section 590, which includes 525.
John Paul Stevens: But he doesn't challenge the... he doesn't say there's any defect in the sale.
Kevin M. Cuddy: No. No, he doesn't say there's any defect in the sale. He says that 525 gives him a preferred position because of his status as a serviceman.
John Paul Stevens: It gives him an unlimited period, a period... a time to redeem as long as he's in service.
Kevin M. Cuddy: Yes, Your Honor, that's correct, and section 510 of the act... and this is troublesome to me, and maybe I'm missing this. This was enacted in 1918, initially, during a time of war. It's reenacted, this statute, in 1940 during a time of war. It's interpreted in 1948, just after the war, by this Court in LeMaistre. We're now looking at it 48 years later, and it seems to me that the petitioner is saying we should look at it with blinders on, that we should not look at section 510, which is a statement of general purposes, that we should not look at the exigent circumstances referred to in section 510, that we should not look to the prejudice that section 510 suggests has to exist. We shouldn't look at any of those things. It seems to me that the courts... the lower courts, the courts in Florida, the courts in New Mexico that we cited in our brief--
Byron R. White: Well, what if this had happened back in 1942 or '43? You wouldn't be making this argument, I don't suppose.
Kevin M. Cuddy: --You're right.
Byron R. White: So we should say, just because Congress has... that even though Congress has not changed the law, we should apply it differently.
Kevin M. Cuddy: No. I think what you have to say, Your Honor, is, in 1942 and '43 and '44 and '45, there was a war.
Byron R. White: Yes.
Kevin M. Cuddy: That's... that's the significant fact. In 1948, in its wisdom, Congress--
Byron R. White: But that isn't what the law says, in time of war.
Kevin M. Cuddy: --It says, exigent circumstances, and one has to infer historically what those exigent circumstances were. You're right, that's not what it says.
William H. Rehnquist: Well, that's just a recital at the beginning, isn't it, about exigent circumstances? It doesn't say, the statute shall be enforced only so long as the exigent circumstances exist.
Kevin M. Cuddy: No, it doesn't say that. Clearly, historically, back in 1940, they had a precedent in 1918 that it was only enforced as long as the exigent circumstances existed. Here, in 1948, Congress elected to continue it without providing any sort of transition to answer or address any of these questions. There is no transition for it.
Speaker: Do you want us to do that?
Kevin M. Cuddy: I want... I'm requesting respectfully that you interpret this statute in the context in which it exists.
Byron R. White: So the protection that seemingly is given to the right to redeem just has expired by now.
Kevin M. Cuddy: It has expired unless there is prejudice or hardship, and where does one find the prejudice and hardship requirement--
Byron R. White: Well, where do you find the requirement for the hardship? That's the real problem. Congress couldn't specify it in this section.
Kevin M. Cuddy: --I agree with that, your Honor. You find that requirement in two places. Number 1, you find it in the general provisions, section 510, and the second place that you find that is, you find that looking back at what this Court did in the LeMaistre v. Leffers case, looking at... I beg your pardon.
William H. Rehnquist: Go ahead and finish your answer.
Kevin M. Cuddy: Looking at the juxtaposition of section 560 and 525, looking at the fact that this Court indicated back in 1948, 560 is what provides the better protection for people, not 525, and from that, inferring... because 560 has a hardship requirement in it.
Byron R. White: Well, on that basis you shouldn't have answered that if this had happened in 1943 you wouldn't be making this argument. You would say well, gee whiz, that other section gives the most protection, and so--
Kevin M. Cuddy: You wouldn't have decided the case in LeMaistre in 1943, Your Honor, unfortunately, but the reason I answered your question that way was because what I understood you to ask me, that was the exigent circumstance issue, and the exigent circumstances in that context was war. I did not mean to deal with the hardship.
John Paul Stevens: --Let me just be sure I understand your position. Assume we were in a wartime situation, would your reliance on 560... would you make the same argument based on 560?
Kevin M. Cuddy: I would today make the same argument in terms of a hardship requirement having to be there.
John Paul Stevens: No, I understand that today. I'm saying, would you make the 560 argument in 1943, or during the Korean conflict, or during the Vietnam conflict? Would you make that argument at those times?
Kevin M. Cuddy: I would make the argument, but I wouldn't have the support that subsequently--
John Paul Stevens: You wouldn't get our support for 510, but I don't see... it seems to me they are totally separate arguments, that's my problem with you. The 510 argument, it seems to me, is one... we have special rules during wartime. Your 560 argument is, we have a special... that's the statute we should look at rather than 525. What if we were really at all-out war right now, would you... I would think your 560 would still trump this right to redeem... on your argument.
Kevin M. Cuddy: --In terms of hardship, that is my position, Your Honor, but I don't want to leave Justice Stevens' point, if I may. The 510, in the last part of it... again, this is the general provisions... talks about that these provisions are made for the temporary suspension of legal proceedings in transactions which may prejudice the civil rights of persons in such services... prejudice the civil rights of such person in the services. Not alone does 510 talk about exigent circumstances, but it has an overview of the concept of prejudice--
John Paul Stevens: Well, it doesn't say temporary suspension of such legal proceedings as will prejudice their rights, it just says a certain category that might prejudice their rights, and this might. I mean, this is a category of temporary suspensions, and this category is a category which may prejudice the people who get the benefit of the statute.
Kevin M. Cuddy: --Right, and--
John Paul Stevens: But it doesn't say he has to prove the prejudice.
Kevin M. Cuddy: --If... in order to ask the question, I respectfully suggest... in order to say, might it prejudice, might it not prejudice it, in the litigation setting, you have to then say, how are we going to determine this, and somebody's going to have to question--
John Paul Stevens: But this section doesn't define litigation rights. It just explains why they enacted the statute, and the statute was to provide temporary suspensions in a category of cases where servicemen might be prejudiced.
Kevin M. Cuddy: --Right.
John Paul Stevens: And in this category, they might be. But it doesn't say they have to prove prejudice to win in the particular case.
Kevin M. Cuddy: That's... that's--
John Paul Stevens: That's how you fit 510 with 525.
Kevin M. Cuddy: --Okay. That's literally true, but I think the next logical step is, if one concedes that the issue of the possible existence, the may be of prejudice exists. Either the question's got to be asked affirmatively by the people seeking to get this quiet title action, or it has to be asked by the other side, but somebody's got to ask the question.
John Paul Stevens: Well, no, I don't think so at all. You could say that some people might be prejudiced by not being able to hire a lawyer in time to do this and that and therefore they can't file a lawsuit right away, therefore we'll give them 5 years to avoid the danger of that prejudice. They get the 5 years whether they can prove prejudice or not.
Kevin M. Cuddy: Okay. In making the transition, then, to the redemption issue, whether or not one gets the benefit of redemption or doesn't get the benefit of redemption, you have to make a finding of, is this going to provide a hardship, or in the alternative, is it sufficient that someone has the status of a military person? What I'm suggesting to you is that section 510 and section 560 both... both have a implicit concept of hardship or prejudice.
Antonin Scalia: Yes, but it seems to me the fact that it's present in 560 demonstrates that it's presence in 510 is irrelevant, because if it's presence in 510 justifies reading it into 525, you wouldn't have had to have it in 560.
Kevin M. Cuddy: Not necessarily. In 5--
Antonin Scalia: Your argument is, we don't need an explicit hardship requirement in 525 because it's in 510, which is up at the beginning of the act, and that hardship requirement spills over into all of the act, but if that were true, there wouldn't be any hardship requirement in 560. You wouldn't need it, because it would be supplied by 510. But we have it in 560.
Kevin M. Cuddy: --You have it in 560 because 560 subsection (2) specifically provides for a hearing for a determination of a question.
Antonin Scalia: You have it because you have it.
Kevin M. Cuddy: Yes.
Speaker: Right.
Kevin M. Cuddy: That's true. Moving on from where I just was in terms of the requirements of the statute, King v. St. Vincent's Hospital, decided by this Court a year ago, has some pertinent language in it, but I would respectfully suggest that the issues in the Veterans' Reemployment Rights Act and the issues before this Court in the Soldiers' and Sailors' Civil Relief Act are disparate, different matters. It is true that they relate to servicemen, and it is true that they relate to interpretation. After you get beyond that, I think that the petitioner's comfort in citing this case is just misplaced. This act that we're dealing with here, the Soldiers' and Sailors' Civil Relief Act, is an act that is germane to itself in terms of its history, its enactment, then its reenactment. It has... the Veteran's Reemployment Rights Act has nothing to do, directly or indirectly, with the Soldiers' & Sailors' Civil Relief Act. The references, however, in that act to interpreting the statute in the context of the full statute I think are very germane, and they apply here very strongly because we're not talking about one section in isolation, again with judicial blinders. We're talking about one section in the context of an entire statute, and how it affects and interacts with the entire statute. And again, I reference this Court's decision in LeMaistre because this Court... although it didn't anticipate where we are today, this Court back in 1948 did anticipate the tension and dynamic and interrelationship of those two sections and found them to be supportive of one another, not inconsistent or mutually exclusive. I would also suggest, and I think I may have mentioned it but I want to be sure I mentioned it, the courts that deal with the issue of real estate taking, of seizing for taxes, they... and the cases we've cited in our brief, cases from Florida, cases from New Mexico... they support the proposition that the legitimacy of deeding property, the whole concept of the title, the chain of title in property, demands for that process that there be some showing of hardship or prejudice. They talk about career servicemen and noncareer servicemen, and I think that that's another way of saying prejudice, or hardship. That's really what they're talking about, because implicitly if one is a career person, one has a regular income, one is under reasonably situations, unless one can demonstrate that there's a hardship and I think that's where the language career comes into play, and it really has its foundation in the concept of hardship.
Antonin Scalia: Mr. Cuddy, can I ask you to address the point the Government makes about where the burden of this uncertainty should lie, and whether it's so absurd to place the burden where they say it's been placed. It doesn't seem to me absurd to say, as they claim the statute provides, in 560, the... which stays the whole sale. You want to come in and stay the whole sale.
Kevin M. Cuddy: Right.
Antonin Scalia: Well, the statute says, if you want to stay the whole sale, you have to prove the hardship, but if the sale goes forward and all you want to do is have a later right to redeem, you don't have to prove the hardship, because, says the Government... what does hardship mean? I mean, this fellow's in military service, he's fighting a war somewhere, or giving out food somewhere, or doing something, and can't get home, and his advisor tells him, don't worry, if you can prove hardship, you can always redeem that property, and he asks him, well, what does proving hardship consist of? He says, oh, it's a very nice question. Proving hardship. Maybe you don't have enough money because you've been shipped overseas and have... you know, have to make all... I wouldn't want to have to gamble on the fact that I could prove hardship. So why isn't it perfectly sensible to say, you know, at least for purposes of the redemption provision, we're going to give the serviceman a free ride... he doesn't have to prove the hardship?
Kevin M. Cuddy: Because if you were living in Danforth or for that matter by Pease Air Force Base or Loring Air Force Base in Maine, where a lot of people... military people have property, and for whatever reason they elect not to continue to pay taxes on their property, and the municipalities, which derive their revenue and support from that property, seize that property and sell it, and you are on their mailing list, and you happen to get a solicitation, come by some great property in Maine, 150 acres, or 30, or 40, or 50 acres, and you check the title, all you're going to know is that there was a tax sale, and you hire a very competent lawyer, and he or she checks that tax sale and is satisfied that the requirements have been complied with in terms of effecting a tax sale, what you have done to the conveyancing is, you have raised a significant cloud because of this status. What you have done to the Town of Danforth or the Town of Limestone or Caribou, Maine, is you have deflated the values of that property, because now, based upon... potentially, this Court's interpretation... there is a great risk here.
Antonin Scalia: Well, there... but there's a risk anyway. I mean, you'd still buy the property... well, you're advising the person who wants to buy the property from the tax sale.
Kevin M. Cuddy: Right.
Antonin Scalia: What you're saying is, you can give him the great comfort of saying, don't worry... don't worry, no soldier is going to be able to come back and snatch this out from under your nose unless he can prove hardship, right? Even under your theory, you don't have sure ownership.
Kevin M. Cuddy: That's true, and I don't mean to retreat from your implicit question of, what is hardship? It is not a clearly defined term, there's no question about that, but then a lot of what you deal with and what I deal with in lesser terms... due process--
Antonin Scalia: No, I'm not talking about its certainty or uncertainty now--
Kevin M. Cuddy: --Well--
Antonin Scalia: --I'm talking about the fact that even under your theory there is no sure conveyancing in a tax sale. You can never be sure that there isn't a substantial likelihood that some Armed Forces member can redeem.
Kevin M. Cuddy: --That's true, but not simply because they come in and they have a uniform on. If there is a hardship--
Speaker: All right.
Kevin M. Cuddy: --Then you have a risk.
Speaker: All right. Right.
Kevin M. Cuddy: And I guess--
Antonin Scalia: It's a lesser risk, but it's still a pretty substantial one, it seems.
Kevin M. Cuddy: --That's true, and I don't mean to put rosy glasses on this. A tax sale, by definition, is a risky business. I'm just saying that we are eliminating a risk.
John Paul Stevens: What is the interest rate the redeeming party has to pay on a judgment in Maine?
Kevin M. Cuddy: I cannot tell you, Your Honor, right off the top of my head. I just cannot tell you, and it... being our State and with our economy, it changes.
John Paul Stevens: But the purchaser with the quit claim deed at least gets his money back plus interest--
Kevin M. Cuddy: Yes.
John Paul Stevens: --At whatever the rate might be.
Kevin M. Cuddy: Yes, and I would... and I appreciate your mentioning that, because you bring one more point that I want to make sure I state to you, ladies and gentlemen. This is a quiet title action, but one aspect of this case is also a trespass action. Now, that is not before you, but I simply want to highlight that, because depending on what you do... and I'm hopeful that you simply affirm what happened below, but should you not, and should you decide to go in a different direction, there is another loose end to this case that the issue that we're dealing with today will not finally dispose of. I have concluded those points that I wish to make, and unless you have any further questions--
Anthony M. Kennedy: Do you agree that Maine could sue the petitioner personally for the amount?
Kevin M. Cuddy: --I believe the town could, Your Honor. I'm not sure that the State could.
Anthony M. Kennedy: That the town could.
Kevin M. Cuddy: I believe the town could in a civil action. It assumes a lot, but yes, I believe the town could.
William H. Rehnquist: Thank you, Mr. Cuddy.
Kevin M. Cuddy: Thank you.
William H. Rehnquist: Mr. Klonoff, you have 3 minutes remaining.
Robert H. Klonoff: Unless this Court has any questions, I would simply submit that the judgment of the Supreme Judicial Court of Maine should be reversed.
William H. Rehnquist: Very well. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.


Warren E. Burger: We'll hear arguments next in Jones against Barnes. Miss Underwood, you may proceed whenever you are ready.
Miss Barbara D. Underwood: Mr. Chief Justice, and may it please the Court: The issue in this case is whether a state criminal defendant is entitled to federal habeas corpus relief on the grounds that his assigned appellate counsel failed to raise every non frivolous issue requested by the Defendant. The Court of Appeals for the Second Circuit held that he is and created a pro se rule that appellant counsel is automatically ineffective if he fails to raise an issue that meets two tests. One, it has some possible merit, however slight; and, two, it was requested by the Defendant on a very generous construction of the term "request". That decision is wrong for several reasons. It upsets state convictions without any showing of prejudice to the Defendant. It is not required by any principle or constitutional law or sound judicial administration. It undermines rather than promoting effective assistance of appellate counsel, and it is an unmanageable, unworkable rule that requires courts to probe the attorney client relationship after the fact and distinguish requests that would trigger the rule from suggestions or discussions or things mentioned in passing that would not.
Sandra Day O'Connor: May I ask a preliminary question? The question presented in the cert petition is whether the 6th and 14th Amendments require assigned defense counsel to raise every non frivolous issue requested by the Defendant. What I would like to ask is whether the questions, whether the Respondent, in fact, asked his lawyer to raise the issues and whether they were non frivolous are questions before us? The briefs talk about them a lot but it was hard for me to understand that those questions were properly here.
Miss Barbara D. Underwood: Well, the question... whether a particular question is non frivolous, being a question of law, it seems to me, is necessarily before this Court and the predicate for determining whether the rule stated by the Second Circuit is... was appropriately announced in this case. The question of whether a request was made is in part a factual question and while that matter is discussed at some length in the brief, it is unnecessary for this Court to explore the intricacies of the attorney client relationship and decide whether a request was made in the ordinary sense of that term.
Sandra Day O'Connor: Should we just assume that requests were made and get on with the other issues?
Miss Barbara D. Underwood: Yes, except for this point. The Second Circuit gave a particular meaning to request, and it would be misleading to understand the Second Circuit rule as applying only to that case in which there was a square conflict between attorney and client in which an explicit request was made and that request was refused. The Second Circuit's definition of request for purposes of its rule encompasses much more.
Byron R. White: But, nevertheless, they predicated their bottom line on the grounds that in their understanding there had been a request?
Miss Barbara D. Underwood: Well, they found--
Byron R. White: As a matter of fact, an insistence.
Miss Barbara D. Underwood: --Well, they characterized what had happened as a request and as an insistence, that is correct. They also recite what they imply that from. It must at least be said that what they found was an implied request and implied insistence.
William H. Rehnquist: Well, since so much seems to turn on this, Miss Underwood, could you briefly summarize what, in fact, did happen?
Miss Barbara D. Underwood: Yes. What the record shows is that before appellate counsel was appointed, the Defendant drafted a pro se brief which included a number of issues. After his appellate counsel was appointed, he sent that brief to counsel. There was some correspondence between Defendant and counsel in the course of which a number of issues were discussed. The record includes a letter from counsel to the Defendant which says, I have considered these various issues, and I believe that none of them are supported by the record, however, here are seven more issues which I am thinking about raising. And ultimately counsel filed a brief which included three issues from counsel's list of seven. He also filed Defendant's original pro se brief. Defendant drafted another pro se brief which included some more of the issues from counsel's list and those too were before the Appellate Division. So, there was much discussion between attorney and client about issues. That is what the Second Circuit found to constitute a request. I should say that the record is sufficient to show that the Defendant... That counsel's performance satisfied both the farce and mockery standard for effective assistance of counsel and the more demanding standard of reasonable professional competence. The District Court, the Second Circuit, and this Court have before it all these various briefs, which are in the Joint Appendix and that excerpt from the attorney client correspondence that I have described, all of that is sufficient to show that counsel painstakingly reviewed the issues and made a reasonable selection of them, giving attention to Defendant's concerns. If this Court were to find some possible merit in the Second Circuit's pro se request rule, it should, nevertheless, reverse rather than remand in this case because of the extra ordinarily broad notion of requests that satisfied the Second Circuit. A hearing in the District Court would be necessary, which is what this discussion about the record suggests, only if this Court were to adopt the extraordinary rule that the omission by counsel of any issue mentioned in communication between attorney and client raised a rebuttable presumption of ineffective assistance and then a hearing would be necessary to permit the state an opportunity to rebut the presumption and inquire into the nature of communications between attorney and client and discover why particular issues were or were not raised. But, since it is our position that that rule in not what the Constitution requires, no further exploration of the facts is necessary. The Second Circuit's rule requires counsel to suppress professional judgment and simply transmit arguments to the court instead of submitting a brief that counsel believes would be most effective. The Second Circuit suggested that this was a natural extension of Anders, this Court's decision in Anders, but, in fact, this decision... and this situation is totally different from the situation in Anders... that governs the situation where counsel finds no meritorious issues and his professional judgment would lead him to withdraw the appeal. In that case, this Court held that counsel must set forth the possible issues any way even though he regards them as lacking in merit. The Anders defendant doesn't lose the benefit of professional judgment because counsel's professional judgment would be of no benefit to him. By contrast, in a case like this one, where counsel has a strategy for effective presentation of the appeal, then the Second Circuit rule would suppress that strategy and require counsel to replace it with a laundry list brief, with a brief simply listing what may well be a large number of issues which, in counsel's judgment, would render the brief less effective rather than more. Such a list of issues which Anders, in fact, requires may be better than nothing which is what the Anders defendant would otherwise get, but it was not better or more effective than a carefully constructed presentation based on reasonable, professional judgment. The selection of issues for appeal is plainly a strategic judgment, the sort of strategic judgment appropriately assigned to counsel, and not one of the small number of decisions that are appropriately reserved for the Defendant personally. The number of colorable issues that could be found in combing a record is potentially infinite. It is counsel's job. It is quintessentially the job of counsel to shape that raw material into a form that is easily digested by the appellate court.
John Paul Stevens: Miss Underwood, can I ask you a question? I understand your reasons for objecting to the Second Circuit rule. Suppose you had a case in which there was a clear request and a clear refusal by the lawyer for tactical reasons. Is there any limit in your view on the right of the lawyer to substitute his own judgment? Does the client have any kind of issue on which he could insist that there be an argument made or an argument not made either way?
Miss Barbara D. Underwood: Yes, I think there might well be. I would say that the omission of a particular issue might well constitute ineffective assistance of appellate counsel either because that issue was itself so strong that any reasonable lawyer would raise it or because the client's particular reasons for wanting that particular issue raised were so compelling that they ought to overcome whatever strategic judgment the lawyer might otherwise make. My objection rather is to this pro se rule that makes a request dispositive of the issue of ineffective assistance of counsel without the sort of case by case inquiry that seems to me most appropriate for adjudicating claims of ineffective assistance by counsel.
Byron R. White: Do you think if a lawyer refuses to appeal on an issue that the client insists on would ever be a ground for complaining against him on ethical grounds, not on competency grounds, just on the basis that the client should be in control of such decisions rather than the lawyer?
Miss Barbara D. Underwood: It might well be. There is, in fact, a division of professional opinion about the allocation of control between lawyer and client. There has been some discussion in the briefs and in the opinion below about the ABA Code of Professional Responsibility, the Proposed Rules of Professional Conduct. Neither of those documents squarely address the issue of the selection of issues for appeal. They recognize the distinction between strategic decisions properly made by counsel and certain fundamental decisions that must be made by the client. And, even the ABA Criminal Justice Standards are unclear. They say explicitly that the decision whether to appeal or not is for the client and that is like the decision whether to plead guilty or not, the decision whether to testify or not, certain basic decisions. The ABA standards go beyond the Code of Professional Responsibility and the Rules of Professional Conduct to say... to discuss the question of selection of issues. What the standard says is that in the selection of issues counsel should try to persuade the client to abandon--
Byron R. White: Right, right, right.
Miss Barbara D. Underwood: --The don't say who should make the final decision.
Byron R. White: It is the client who says... What does the Code say?
Miss Barbara D. Underwood: The Code doesn't specifically describe the situation of selection of issues. It specifically says that strategic decisions are for the client... for the lawyer... and fundamental decisions are for the client. The Code says, for instance... the disciplinary rule says... that a lawyer shall not intentionally fail to seek the lawful objectives of his client through reasonably available means. It also says, where permissible, a lawyer may exercise his professional judgment to waive or fail to assert a right or position of that client. It seems pretty clear, in short, that there is some concern about just how to resolve this question as a matter of ethics, as a matter of professional responsibility and particularly in light of that ambiguity. It seems that the Constitution can hardly be expected to resolve that difference of professional opinion which is to say, Justice White, that even if it were to be determined that there might be an ethical violation here, that would not dispose of the constitutional question.
Warren E. Burger: Did you cite the standards of the ABA on the defense counsel's functions in your brief? I don't recall.
Miss Barbara D. Underwood: I believe they are cited in a footnote about those standards and... They are not quoted.
Warren E. Burger: There is very little left to the client as compared to the lawyer under those standards, is that not so? The defendant decides whether... alone decides whether he would plead guilty or not guilty, and he alone can decide whether he will or will not testify and that is about it, isn't it?
Miss Barbara D. Underwood: Whether he will or will not appeal.
Warren E. Burger: No, I am talking about the trial.
Miss Barbara D. Underwood: Yes, that is correct. They are cited at page 16 of our brief in Footnote 14, all these several standards.
Warren E. Burger: Thank you. Miss Underwood, what would the effect be in your view if we were to agree with your view in the event the convicted defendant thereafter filed a habeas petition under one of these theories that his lawyer refused to raise on appeal, and we were faced with the issue of whether there was a waiver under Wainwright against Sykes? Would that be a ground for not applying the waiver principle then in your view?
Miss Barbara D. Underwood: Well, I would say that in the ordinary case that would constitute a waiver; that is that reasonable strategic judgments of a lawyer do, in fact, bind the client and they bind him not only on the direct appeal but also for the purposes of making the procedural waiver. However, the fact, if it were a fact, that there was this kind of difference of opinion, might well constitute cause for avoiding that waiver principle in a particular case. That, it seems to me, would require precisely the kind of factual inquiry into the nature of the way which the decision was made would be inappropriate on direct appeal but that might be appropriate on collateral attack.
Byron R. White: But, even if the waiver surmounted... no waiver on your argument, the petitioner's habeas corpus would be dismissed. There was no constitutional violation.
Miss Barbara D. Underwood: In this case, there was no constitutional violation. I understood the question to be suppose the defendant were then to file a federal habeas corpus--
Byron R. White: Yes.
Miss Barbara D. Underwood: --petition raising one of the claims. But, in this particular case, none of the omitted claims was a constitutional claim.
Byron R. White: Well, I know, but suppose it was and the lawyer didn't raise it and you say there would be no waiver, but you would say there would be no violation of constitutional right, wouldn't you?
Miss Barbara D. Underwood: I would say--
Byron R. White: If the lawyer has... If on direct appeal it is ruled that the lawyer cannot be faulted for omitting the claim, do you think there is still recourse to federal habeas?
Miss Barbara D. Underwood: --In the ordinary case, no. I would say in the ordinary case there would be a procedural forfeiture that would bar--
Byron R. White: Say there is no forfeiture, they reach the merits, and the question was is this conviction constitutionally invalid because a lawyer failed to raise a colorable constitutional claim that he chose for strategic purposes not to raise.
Miss Barbara D. Underwood: --I would say there is no constitutional error.
Byron R. White: There never would be, would there? I don't think you understand Justice O'Connor's question, Justice White. I thought her question was-- --I understand mine though. [Laughter] Well, yours is supposedly based on hers. Will you answer this hypothetical which may not have been Justice O'Connor's and certainly was not Justice White's-- I will try to understand this. Supposing that the Defendant, after having lost the appeal in state court, comes into federal habeas court and while his first ground of relief has nothing to do with his representation on appeal, it is a 4th Amendment claim, and... or let's say a 5th Amendment claim-- And the argument is there has been a procedural default because it wasn't raised on appeal in the state court and the Defendant's answer is, well, I wanted it to be raised, but my lawyer wouldn't let it be raised.
Miss Barbara D. Underwood: Yes. That is what I understood Justice O'Connor's question to be.
Byron R. White: That is the way I understood it too.
Miss Barbara D. Underwood: And my argument would be that in the ordinary case that ought to bar federal habeas relief because--
Byron R. White: I understand your answer. Then I asked, well, how about the merits then? You didn't put in in quite those words. [Laughter] Go ahead.
Miss Barbara D. Underwood: --How about the merits of what?
Byron R. White: You say ordinarily that would be a bar?
Miss Barbara D. Underwood: Ordinarily that would be a bar. It might be that that particular federal habeas petitioner could persuade a court that on the facts of the particular refusal in his case there was cause for avoiding that procedural bar.
Byron R. White: And, if there was cause for avoiding the procedural bar--
Miss Barbara D. Underwood: Then the federal habeas court should reach the merits.
Byron R. White: --And rule on the merits of the constitutional issue he is presenting?
Miss Barbara D. Underwood: Well, in that case it would probably be the case if there was no state exhaustion, if there was not exhaustion of state remedies. It would not... The issue would not be forever lost because it wouldn't be procedurally barred, but it would have to be reached, the merits would have to be reached in that case. The claim of ineffective assistance of appellate counsel, a however, would, in our view, not be a valid claim. That would not be reached by the federal habeas court or by any other court if the omission was a reasonable, strategic judgment. Does that answer your question?
Byron R. White: Sure. [Laughter]
Miss Barbara D. Underwood: The Second Circuit justified its rule in part as unnecessary method of providing equality to indigent defendants. Indeed, that is ultimately the premise of Anders and of all the cases that concern themselves with... in which this Court has concerned itself with the right of an indigent defendant to appointed counsel on appeal. The rule is not an effective... a necessary or effective way of providing equality to indigent defendants. First, the Constitution does not require the state to make the relationship between an indigent defendant and appointed counsel identical to the relationship between a paying client and retained counsel and, in any event, that could not be done. There is, in the nature of a financial relationship, something that cannot be represented except by a financial relationship. Paying clients have substantial financial constraints that indigents do not. It is expensive to change lawyers after one lawyer has already spent a great deal of time on the case, and it is expensive to ask one lawyer to research and write on a large number of insubstantial issues. Many paying clients lack the complete control over counsel that the Second Circuit seems to assume they have. Indeed, in the wake of the Barnes decision, the Second Circuit decision in this case, our office has received habeas corpus petitions from paying clients who claimed that their retained counsel failed to raise certain issues that they requested and asking for the same right that indigents have under the Barnes decision below; that is to say that at least some paying clients lack the kind of control the Second Circuit rule would give to indigents. There obviously is a wide range of control. There is a wide range of paying clients, and the amount of money somebody has available to him is very likely to affect the kind of control he has over his client as well as the kind of... over his counsel as well as the kind of counsel he gets. And, in any event, the constitutional guarantee at stake here is a right to effective counsel, not a right to any particular form of attorney client relationship. The right is not meant to provide indigents with equal control or equal opportunity for self expression or any other of a variety of possible forms of equality that indigent defendants might like to have. It is to provide them with an equal chance for meaningful appellate review of their convictions. A breakdown in the attorney client relationship might operate to prevent meaningful, effective appellate review, but there is no suggestion that that happened here. Where counsel has consulted with the client and paid attention to his concerns and ultimately made reasonable, strategic judgments about how to frame the appeal, the constitutional right to counsel on appeal is satisfied. There is... The Solicitor General has suggested that there may be a problem about state action in this case. I think it is clear that there is enough state action in holding a convicted defendant in custody to require that the procedures by which the conviction is obtained and upheld satisfy constitutional standards and that includes the requirement of effective assistance of counsel at trial and on appeal. But, again, that right, that constitutional right, is a right to meaningful counsel to effective appellate review. In fact, this Court has held that that applies... that that may be limited only to the first mandatory appeal and not to subsequent discretionary appeals. But, in this first mandatory state appeal, the requirement is of meaningful counsel and that requirement was satisfied here. The omission of an issue then could well amount to ineffective assistance of counsel, but that judgment shouldn't depend on whether or not the defendant made a request. In fact, it would be peculiar to penalize the defendant too ignorant to make a request. It should depend on whether the issue was sufficiently substantial so that reasonable counsel would have necessarily raised it or on whether the particular request was sufficiently weighty that reasonable counsel would have acceded to it. Neither of those kinds of omissions is shown by this record. On appeal the defendant is entitled to effective assistance of counsel. The proper standard is not the pro se rule set forth by the Second Circuit, but a flexible standard of reasonable, professional competence applied on a case by case basis. That standard was satisfied here. The judgment below should be reversed and the petition dismissed. I would like to reserve a little bit of time for rebuttal.
Warren E. Burger: Mrs. Riesel?
Sheila Ginsberg Riesel: Mr. Chief Justice, and may it please the Court: The issue in this case is whether on direct appeal from a criminal conviction the constitutional right to access to the courts will insure an indigent's right to be heard through counsel on a non frivolous issue he urged his lawyer to raise, Petitioners' argument notwithstanding. This is not a case of lawyer competence. The Second Circuit specifically rejected that analysis. Rather the issue is whether counsel can act as a barrier to a non frivolous issue urged upon him by his client. Respondent David Barnes maintains--
Warren E. Burger: But, the consequence of that, you claim, and the Court of Appeals seems to have said, is that there is ineffective assistance.
Sheila Ginsberg Riesel: --No, Your Honor, that is not our claim.
Warren E. Burger: Do you concede it was effective assistance?
Sheila Ginsberg Riesel: There was no assistance, Your Honor, on the issues that Barnes urged upon his counsel. In other words, Barnes--
Warren E. Burger: Well, don't you think we should be concerned with whether or not there is or is not a claim of effective assistance of counsel?
Sheila Ginsberg Riesel: --Not in this case, Your Honor.
Warren E. Burger: Isn't that the ultimate issue, the ultimate question?
Sheila Ginsberg Riesel: No, Your Honor, it is not. The question is whether counsel can act as a barricade to preclude his client from gaining access to the court.
Warren E. Burger: To put it another way, the question is who is going to try the case, is that not perhaps a corollary statement of the issue?
Sheila Ginsberg Riesel: Well, Your Honor, this case does not deal with trials. It deals with an appeal.
Warren E. Burger: You are trying the case here.
Sheila Ginsberg Riesel: Your Honor is correct that a question in this case is who is the master, if you will, of the proceeding. This case deals with a direct appeal, and we maintain that there is a substantial difference between the appellate process and the trial process. Clearly once a state has established procedures for appellate review of a criminal conviction, it must provide equal and open access to those procedures. Access may be defined as the means by which an indigent defendant can present his claims to the court. On direct appeal at a minimum the means to a fair hearing requires the right to counsel. It is only through counsel that the indigent lay person, uneducated in the law, can effectively and adequately present his claims to an appellate court.
Warren E. Burger: Well, you are saying on direct appeal, Counsel. You are not here on direct appeal or, in your terms, do you think you are here? Did this case come on direct appeal in those terms?
Sheila Ginsberg Riesel: Your Honor, the issue in this case is whether a lawyer on direct appeal from a criminal conviction can decline to raise a non frivolous issue urged by his client?
Warren E. Burger: Do you think that you were required... that you are required here to raise every non frivolous issue that your client wants whether you think it makes any sense or not?
Sheila Ginsberg Riesel: Do you mean in a collateral proceeding?
Warren E. Burger: Here in this Court today in your brief.
Sheila Ginsberg Riesel: I think the questions of access and the questions of right to counsel as decided by this Court may change the complexion. As a personal matter, I would feel obligated to raise a non frivolous issue urged by my client.
Warren E. Burger: Even if you thought it would weaken the ultimate... the total presentation in the case to this Court?
Sheila Ginsberg Riesel: My responsibility to my client, Your Honor, would be to explain that view to him and explain the reasons why I had reached that conclusion. But, ultimately, if he were to reject my analysis, I believe my obligation would be to present that issue.
Warren E. Burger: You would put it in... You would feel required to put it in the brief?
Sheila Ginsberg Riesel: Yes, Your Honor.
Warren E. Burger: Then when you came here to argue it as you have today, and your client says, now, I want you to be very sure you argue every one of these points, even the ones you didn't think make any sense, obligation on your part in these terms to orally argue those points?
Sheila Ginsberg Riesel: Well, of course, the give and take of an oral argument sometimes precludes the best intentions of counsel, but I think advocating--
Byron R. White: Touche.
Sheila Ginsberg Riesel: --the issue would certainly be my intention. Advocating it orally would certainly be my intention and my goal.
Thurgood Marshall: The most you could say if you were allowed to?
Sheila Ginsberg Riesel: Yes, Your Honor. [Laughter]
Warren E. Burger: But, you might, you might in doing that neglect oral argument on points that you consider truly important and crucial, is that not so?
Sheila Ginsberg Riesel: --That is true, Your Honor, and that too I would explain to my client and I would urge him... as I might add parenthetically Mr. Melinger did not urge Barnes here... that we should relinquish that, but if understanding my arguments and the reasons for my conclusions he determined that he wanted... that the issue was important to him and the issue were a non frivolous one, I would go forward with it.
Sandra Day O'Connor: How would you determine what is non frivolous by some objective standard or what counsel deems it to be as you suggested in your brief?
Sheila Ginsberg Riesel: Well, Your Honor, this Court in Anders sat down a requirement for making... for counsel initially making that determination and for the courts making the determination of what is non frivolous.
William H. Rehnquist: Well, Anders didn't tell you how to go about it.
Sheila Ginsberg Riesel: No, sir, it does not give you a handbook. But, lawyers and judges must make that decision every day. When counsel on his own refuses to communicate to the court a legitimate claim requested by his client, counsel functions as a barricade to the hearing.
Warren E. Burger: Now you have changed your terms from non frivolous to legitimate.
Sheila Ginsberg Riesel: I did not mean to change the sense of it, Your Honor. Non-frivolous will suffice.
William H. Rehnquist: If it is a legitimate claim, you shouldn't need to be... The lawyer shouldn't need to be urged by the client to present them.
Sheila Ginsberg Riesel: I meant to use the terms interchangeably, Your Honor. I did not mean to suggest the higher standard.
William H. Rehnquist: Mrs. Riesel, your client did have a brief submitted on his behalf to the state appellate court, did he not?
Sheila Ginsberg Riesel: By counsel, yes, he did, Your Honor.
William H. Rehnquist: So, are you claiming that counsel's performance on the written part of the appellate presentation of briefing fell short of constitutional standard?
Sheila Ginsberg Riesel: No, Your Honor, we are not asserting that the brief that assigned counsel filed was an incompetent brief.
William H. Rehnquist: But, supposing there had been no oral argument, that the case had simply been submitted on the basis of your client's pro se brief and the counsel's brief. Would you think that the Second Circuit ought to reach the same result as it did in this case?
Sheila Ginsberg Riesel: Absolutely, Your Honor.
William H. Rehnquist: Because the lawyer wouldn't sign his name to the brief prepared by your client?
Sheila Ginsberg Riesel: No, it is not just the refusal to sign his name to the brief, Your Honor, but to assist the client, Mr. Barnes, in the presentation of the issues. Obviously, the skills of a trained advocate will exceed those of a layman in the presentation of the issues; so that Mr. Barnes would still have been denied access if counsel had had, in fact, signed the pro se brief, that that is not enough.
William H. Rehnquist: Counsel would have had to retool the pro se brief to meet these standards?
Sheila Ginsberg Riesel: Exactly that.
John Paul Stevens: Am I correct that the constitutional provision on which you have relied is not the 6th Amendment, not the Due Process Clause and not the Equal Protection Clause, but just the right of access cases?
Sheila Ginsberg Riesel: Well, we rely on the right of access cases and those, in turn, Your Honor, I believe rely on the due process and equal protection.
John Paul Stevens: But, in those cases, the prisoner access to the courts, for example, usually pro se submissions have been adequate. And here you did, in fact, get... Your client's letter did go to the court.
Sheila Ginsberg Riesel: Well, Your Honor, the access cases are not limited only to the prisoner cases. Of course, we believe that Griffin and Douglas were also access cases. But, I think it is clear from this Court's holding and from logic that an indigent appellant's pro se presentation will not suffice and does not equate to the presentation of counsel and particularly in this regard--
John Paul Stevens: If it doesn't equate, then it is an equal protection matter, but there is access--
Sheila Ginsberg Riesel: --No, Your Honor, I think that when the Petitioner must proceed pro se, his ability to frame his issues and to present them effectively and fairly to the court is so imputed as to infringe on his access right, particularly when standing side by side with him is his lawyer, whose refusal to raise the issue communicates to the court--
John Paul Stevens: --But that goes to the persuasive character of the presentation. But it seems to me that the communication by the client is intelligible and his point is understandable by the court. And that, it seems to me, satisfies the access point.
Sheila Ginsberg Riesel: --No, Your Honor--
John Paul Stevens: I do not know of any access case that said there had been a denial of access when the message gets through, even though it may be poorly written and pro se and all the rest. I understand the equal protection, due process, effective assistance of counsel, but I do not think your access case is really right on the button here.
Sheila Ginsberg Riesel: --Well, Your Honor, I beg to disagree. I think that the access cases make clear that the client must have the means for... I think the words are... adequate and effective way of presenting his issues.
John Paul Stevens: Which case, do you think, is your strongest access case?
Sheila Ginsberg Riesel: I think Bounds is very helpful to us, Your Honor.
Warren E. Burger: Which case?
Sheila Ginsberg Riesel: Bounds against Smith, which is a prisoner's case, Your Honor.
Warren E. Burger: You use the term effective, although earlier you disclaimed any thoughts of lack of effective assistance of counsel here. You said the client was entitled to have his pro se points presented effectively, and that his counsel having declined to help him present what the counsel considered improper points, therefore, there was not an effective presentation. So, is there not an undercurrent here of effective representation?
Sheila Ginsberg Riesel: I do not think so, Your Honor. We are talking now about Barnes' ability to represent himself effectively as opposed to--
Warren E. Burger: Well, but your point of your argument that you were making was that the counsel had an obligation to take this pro se brief and cast the pro se's points in terms that a lawyer would use with the skill of the advocate, I think you have said. So, doesn't that really draw in, even if in the Freudian sense, the effective assistance of counsel in this case?
Sheila Ginsberg Riesel: --I do not think so, Your Honor, because here counsel refused to do anything.
Warren E. Burger: What if he thought one of them was a dishonorable, unethical point, do you think he had an obligation to raise it any way?
Sheila Ginsberg Riesel: But that is not this case, Your Honor. In fact--
Warren E. Burger: No, I said, what if, hypothetically?
Sheila Ginsberg Riesel: --If, for example, counsel were to determine if the issue were a frivolous one, the Second Circuit makes clear that counsel does not have an obligation in that instance to raise the issue. And, I do not have any quarrel with that conclusion. The significance of issue presentation cannot be lost on any appellate lawyer. The entire concept of appellate review is the consideration of issues properly raised in the briefs. It is beyond dispute that it is appellate counsel, and not the court, that must identify and advocate the issues presented by the case. Today, as has already been noted, a failure to raise an issue on direct appeal may well result in a waiver of that claim. Given the critical importance of appellate issue selection--
Thurgood Marshall: May I back up minute to the 6th Amendment? You still say you do not want the 6th Amendment? You have got it in your brief.
Sheila Ginsberg Riesel: --Your Honor--
Thurgood Marshall: You are abandoning it?
Sheila Ginsberg Riesel: --No, I am not abandoning it. I am not relying on it as the Second Circuit did not. I think that there are aspects to the 6th Amendment right to counsel that--
Thurgood Marshall: Well, you say in your brief, you quote from Justice Shaefer, "Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects. " --you are relying now on the 6th Amendment, aren't you? You are talking about counsel.
Sheila Ginsberg Riesel: --We are relying on the need for counsel to enable or protect the defendant's access to the court.
Thurgood Marshall: My only point is that you object to the counsel in this case abandoning a point, and you are abandoning a point here. Am I right?
Sheila Ginsberg Riesel: Well, Your Honor, I did not mean, nor do I intend to abandon the point--
John Paul Stevens: Of course, I suppose we must be curious to know whether your client wanted you to make that point. [Laughter]
Sheila Ginsberg Riesel: --Given the critical importance of appellate issue selection, the client must have the right, should he choose to exercise it, to participate in the appellate process. An appeal... nothing in the nature of an appellate proceeding militates against that participation. An appeal is a deliberative, contemplative, and collegial process. The appellate lawyer must review the transcript, analyze the applicable case law, consider the interplay of the issues presented, and draft his brief. An essential tool of the craft is the ability to consult with his colleagues. The exchange of ideas often gives rise to the primary issue on the appeal, and sometimes leads the way around a difficult legal problem. The pivotal ingredient in this appellate process is time to reflect and to cogitate. And, if there is one thing that an appellate lawyer has it is time. For example, in the Second Circuit there is on the average of two months between the filing of the notice of appeal and the appellate's brief. It is my understanding that in the state court system there is more time and more flexibility to get extensions of time. In this regard, the appellate process is markedly distinct from the trial. The exigencies of time that are alien to the appellate process... the exigencies of time that attend the trial decisions are alien to the appellate process. Therefore, the primary rationale for requiring a client to defer to the decisions of counsel simply do not pertain to the appeal.
Byron R. White: Would you still be here if your client had not requested the inclusion of these issues on appeal. They are positive to have been non frivolous or legitimate as you say. Would you say it is equally a denial of some federal constitutional right to omit any non frivolous ground from the appeal wholly aside from whether the client requested it?
Sheila Ginsberg Riesel: No, Your Honor, I would not.
Byron R. White: Why wouldn't you?
Sheila Ginsberg Riesel: Because I think that in the situation where... and this is the most frequent situation in my experience... where a client defers to his lawyer's judgment and--
Byron R. White: Well, he defers by silence. He says, let's take the appeal. The lawyer says, we are taking the appeal. If you want to read a copy of the brief, here it is. The client would not have the faintest idea there was another issue maybe.
Sheila Ginsberg Riesel: --That may be true, Your Honor, but by his conduct, he has communicated a confidence in his lawyer in his willingness to permit his lawyer to make these decisions. In the Barnes case, the situation is quite different because Barnes made it clear from the outset that he wanted to participate in the process and wanted to ultimately control the issues that were presented to the appellate division.
John Paul Stevens: Well, doesn't the lawyer, then, have a duty if he thinks of four or five non frivolous issues that he thinks are not quite strong enough to raise, should he not tell the client about the non frivolous issues he has decided not to raise so the client can make a meaningful decision as whether to let him go ahead that way?
Sheila Ginsberg Riesel: The court below did not find that counsel had that duty. This case presents an entirely... a different issue, namely the issue of whether a lawyer must accede to his client's direction. I think, in answer to your question, that it depends on the particular lawyer client relationship. If the client expresses an interest and a determination to participate in the process, then the lawyer may in that situation have the obligation to apprise his lawyer... his client, rather... of the issues not to be raised. Alternatively, when the client by affirmative statement or by silence indicates a willingness to allow his lawyer to control the process, the lawyer can do so.
Harry A. Blackmun: In fact, didn't counsel here raise six points that were not covered or raised by the Defendant? In his letter to the Defendant, didn't he have six points, three of which he did later argue--
Sheila Ginsberg Riesel: He raised a total, or the prospect of a total of seven, Justice Blackmun, and then ultimately raised three of the seven.
Warren E. Burger: --Now, referring back to my inquiries about whether you were or were not raising effective assistance of counsel, I note that while it is very flattering to Judge Bazelon and to Judge Kaufman and to me to have you cite our articles, you have devoted about four pages and they all deal with effective assistance of counsel.
Sheila Ginsberg Riesel: Well, Your Honor, that was in response to the premise of the Petitioner's argument, namely, that the lawyer should be and must be in control of the proceedings because he is the only competent representative of the appellant. The power of response... and I think it has to be the concern of this Court... is that not only is it the client who has the fundamental interest in the outcome of these proceedings, but these proceedings are frequently flawed or marred by what the most eminent jurists in this country have found to be ineffective assistance of counsel. So, that the bottom line is that we are precluding the defendant from controlling his destiny, and his future, and perhaps his life, and putting that future and that life in the hands of the hands of lawyers who may not be up to the task. After all, we have all seen that lawyers, like doctors, are fallible. It is with that in mind, Justice Burger, that we cited to those Opinions. As stated, the client's right to insist on the presentation of a non frivolous issue flows from the reality that it is he and not his lawyer who will suffer the consequences if the conviction is affirmed. More particularly, the client will suffer the loss, perhaps for all time, of the ability to present the requested claim to a reviewing court. This loss can be substantial. All practicing lawyers have seen that client input can be valuable. Indeed, the issue decided by this Court in Gideon v. Wainwright originated with the client. Similarly--
Warren E. Burger: In your view, Mrs. Riesel, should the clients rather than the lawyer make the decision on whether to cross examine or not to cross examine an adverse witness?
Sheila Ginsberg Riesel: --Your Honor, of course, that deals with a trial situation--
Warren E. Burger: Well, it is important.
Sheila Ginsberg Riesel: --And, that as I have indicated, we believe is quite distinct from the appellate situation. I think that ultimately the client's interest--
Warren E. Burger: You exchange it on appeal, at trial... the trial counsel having been replaced on appeal... the trial counsel declines to cross examine a government witness explaining to his client that it would be disastrous to cross examine in his professional judgment. Now, we have a new lawyer on appeal and the client wants counsel to raise that issue... obligation to raise it, even though to the appellate counsel it does not make any sense?
Sheila Ginsberg Riesel: --I think in answer to your question, it depends on the exigencies of the trial situation. Obviously, while the client has the primary interest and consequently, we would argue, the ultimate control over the issues to be raised there, we must recognize that there are situations where that is unworkable. And, perhaps the one that Your Honor poses is such a situation.
Byron R. White: Could I ask you if the Second Circuit had arrived at this point it arrived at and said that counsel should have raised this on request, but then went on and said that this requires us to look at the ground, we find the ground, although non frivolous, was a loser. Wouldn't have made a bit of difference. Would you have challenged that?
Sheila Ginsberg Riesel: Your Honor, it is our view that the failure or the refusal to raise a non frivolous issue is sufficient to grant relief, relief being a new appeal.
Byron R. White: I know it is sufficient, but what if the Court of Appeals had went on and said, well this is a federal habeas proceeding. We want to know if there is any constitutional infirmity in this state conviction. We look at this ground. It had been a clear loser. There is no constitutional problem in it at all. Any competent counsel would have left it out any way. Non-frivolous, but nevertheless it was a loser, so we deny federal habeas.
Sheila Ginsberg Riesel: Of course, the analysis at that juncture would not be whether the issues appellate counsel did not raise in the state court were of constitutional dimension. The federal court would be placing itself in the difficult situation of second guessing what the state court would have done had the issue been presented.
Byron R. White: Which they do all the time any way on the other side of the case. The Court of Appeals or the District Courts know something about state law.
Sheila Ginsberg Riesel: Surely, Your Honor, but in simple answer to your question, we would be here because we think that would be the wrong standard.
Byron R. White: So, the Chief Justice's question must still stand, then. Aren't you really... isn't your case at bottom, then, a competency of counsel case?
Sheila Ginsberg Riesel: No, Your Honor.
Byron R. White: I do not understand what it is. If you would still be here in my example, what is it then?
Sheila Ginsberg Riesel: It is an access case because the question is whether the appellate lawyer denied his client access on direct appeal.
Byron R. White: He did not deny anything. He said if you want to go argue it, argue it yourself. And Faretta guarantees him that right.
Sheila Ginsberg Riesel: But, he did not want to proceed pro se, Your Honor. He wanted to proceed with the assistance of counsel.
Byron R. White: I know, but counsel said no. The question is was counsel... was that a competent performance of counsel.
Sheila Ginsberg Riesel: The answer--
Byron R. White: Was it a constitutional performance?
Sheila Ginsberg Riesel: --No, it was an unconstitutional performance.
Byron R. White: But, not because of competence?
Sheila Ginsberg Riesel: No, because of a denial of access.
Warren E. Burger: Competent but unconstitutional?
Sheila Ginsberg Riesel: The question of competence does not pertain to this issue because counsel failed or refused to present the issue.
Warren E. Burger: Sort of a malpractice claim?
Sheila Ginsberg Riesel: Perhaps, but not providing sufficient relief to this defendant. Contrary to Petitioner's concern, the Second Circuit rule encourages lawyers to exercise the responsibility that Petitioners would thrust upon them, namely, to convince their client that it is not in their best interest to present an issue. Only when the lawyer fails in that mission that he must present the issue. The result of lawyers exercising that responsibility will surely be the dimunition of the number of issues. When the lawyer fails to raise or fails to convince his client, both the client and the court will benefit from the professional presentation of the issue. Thank you.
Warren E. Burger: Do you have anything further Miss Underwood?
Miss Barbara D. Underwood: A few brief points, if I may. First, there is no suggestion here that there was a failure of communication or a lack of participation by the client. The only question that this case is about has to do with ultimate control, not participation. Second, every point that the Second Circuit said should have been presented, was, in fact, before the state appellate court in the form of a pro se brief. So, there is no denial... no total denial of access here. Third, though an attempt has been made to distinguish between strategy at trial and strategy on appeal, it is perfectly plain that there are important strategic judgments to be made on appeal as well as at trial. There was one particularly salient one here. The client was concerned about the fact that a particular medical record, having to do with... by which he wanted to impeach the complaining witness, did not get into evidence.
Byron R. White: So, your position would be the same, though, wouldn't it, if the client himself had not filed a letter with the appellate court?
Miss Barbara D. Underwood: Yes it would.
Byron R. White: That makes no difference to your argument?
Miss Barbara D. Underwood: That is correct.
Warren E. Burger: Thank you, counsel. The case is submitted.
Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.