William H. Rehnquist: We'll hear argument next in Number 92-9093, Joseph Romano v. Oklahoma. Mrs. Peters.
Lee Ann Jones Peters: Mr. Chief Justice, and may it please the Court: In this capital case, the State succeeded in introducing evidence, over the defendant's objection, that the defendant had already been sentenced to die by another jury in an unrelated case. The issue before this Court is whether that evidence undermined the jury's sense of responsibility in violation of the Eighth and Fourteenth Amendments. Capital juries are asked to decide on behalf of the community whether a defendant should live or die at the hands of the State. This is a most agonizing decision, and one that this Court has recognized jurors may seek to avoid. How relieved the jurors must have been in this case to discover that the decision had already been made, that the community had already decided that John Romano should die.
William H. Rehnquist: Do you think, Mrs. Peters, that would make the jury in this case more likely or less likely to itself impose the death sentence?
Lee Ann Jones Peters: I think that it would make it more likely. I think that there is a possibility, as the State has argued, that one jury may give life because it felt that its decision did not matter, a man can only be killed one time. If a jury... if one jury gives life because of the factor that he's already been sentenced to death, and other juries give death because of that same factor, that shows how arbitrary factor this is. That's not a--
William H. Rehnquist: You're not saying that the jury was more likely to convict because of this second... you're saying it might have been more likely to convict, it might have been less likely... it was just kind of an aberrant factor?
Lee Ann Jones Peters: --To sentence to death, I think it was more likely that it would affect its judgment to sentence him to death. It would be more likely to do what the other jury had done.
William H. Rehnquist: Well, why wouldn't it be just as logical to say, if, as you say, juries shy away from this responsibility, to say well, he's already been sentenced to death? He's going to be executed anyway, we'll just give him life.
Lee Ann Jones Peters: Regardless of which the jury is likely to do, it is not a principled distinction... principled guiding factor to determine when death is appropriate in a case and when it is not, whether the jury returned life, or whether the jury returned death. Either way, it's an unreliable verdict, because it was based on an arbitrary factor rather than a determination that death was appropriate for this case. Although the jury was not explicitly told in this case that their decision did not matter, that message was clearly communicated by the piece of evidence that showed that he had already been sentenced to die. Leading the jury to believe that its decision does not matter falsely deflates the solemnity of the decision-making process and reduces the proceeding to a mere formality both as to the defendant's eligibility for death as well as the appropriateness of that decision.
Sandra Day O'Connor: Ms. Peters, may I ask you the state of the law in Oklahoma in this situation? As a matter of Oklahoma law, is the sentence in a previous case relevant for the jury in the subsequent proceeding to be aware of?
Lee Ann Jones Peters: It is not, and the Court of Criminal Appeals--
Sandra Day O'Connor: Is the fact of conviction in the earlier case relevant under Oklahoma law?
Lee Ann Jones Peters: --Certainly.
Sandra Day O'Connor: And the Oklahoma courts in this case acknowledge that it wasn't relevant as a matter of State law--
Lee Ann Jones Peters: That is correct.
Sandra Day O'Connor: --the sentence?
Lee Ann Jones Peters: That is correct.
Sandra Day O'Connor: But nevertheless felt it was not a constitutional violation that the error was not harmful in a constitutional sense?
Lee Ann Jones Peters: The Court of Criminal Appeals recognized that it might have undermined the jury's sense of responsibility, but then went on to say that it was highly unlikely that it did so. There were several problems with the Court of Criminal Appeals' analysis in this case. First of all, they relied on an instruction as curing this evidence that was not in fact given. They said that the jury was instructed that it was not to surrender its judgment to any item of evidence. That instruction simply is not in the record. They also presumed the jury's verdict to be correct, and they applied the wrong standard. They said that it was highly unlikely that it affected the jury's verdict, that it was highly unlikely--
David H. Souter: Ms. Peters, may I interrupt you on that point? As I understand, your position is... strike that. As I understand your reading of the Oklahoma, it is that they found there was error, but that there was not Federal constitutional error, is that correct? In other words, the information shouldn't have been conveyed, but it simply was not a due process violation.
Lee Ann Jones Peters: --I think that the court looked at it as an Eighth Amendment error initially--
David H. Souter: It did.
Lee Ann Jones Peters: --and said that it might undermine the jury's sense of responsibility, and then analyzed it in the Fourteenth Amendment instead. They said that they had to review it with a heightened sense of scrutiny, which is, of course, Eighth Amendment language, and then they said that it did not deny him due process, which is Fourth Amendment, so I'm not really clear what it was the court--
David H. Souter: Do you... but you also view their opinion as not engaging in harmless error analysis in the strict sense, at least with respect to the Eighth Amendment violation.
Lee Ann Jones Peters: --That's correct. They did not say that they were applying a harmless error analysis, and they certainly did not use language that would indicate that they did. They said that it was highly unlikely that it affected the verdict. Highly unlikely does not exclude the possibility that it did affect the jury's verdict.
William H. Rehnquist: What case or cases from our Court are you relying on for your submission, Ms. Peters?
Lee Ann Jones Peters: Several cases. Of course, all the cases on reliability of evidence in this Court, principally Caldwell, because--
William H. Rehnquist: Caldwell requires, though, doesn't it, if one takes the concurring opinion which made the Court... that the information be misleading or false?
Lee Ann Jones Peters: --In this case, I believe the information was misleading and inaccurate.
William H. Rehnquist: The person had not previously been sentenced to death?
Lee Ann Jones Peters: He had been previously sentenced to death, and as a historical fact it was correct.
William H. Rehnquist: Then what was false about it?
Lee Ann Jones Peters: What was false about it was that it was an invalid conviction. At the time that this sentence of death was presented to the jury, the State had only recently obtained the conviction and it had not yet been subjected to appellate review. When it was, the Court of Criminal Appeals held that the sentence and the conviction and sentence was a violation of a fair trial, result of an unfair trial, and that both had to vacated, and it was remanded for a new trial, so the sentence of death that they heard about, although it was true as a historical fact, it was not a valld conviction.
William H. Rehnquist: Well, what if it had been a valid... what if the sentence had been upheld on appeal, would you still be making the same arguments here?
Lee Ann Jones Peters: I would, because I also believe that the evidence was misleading. It led the jury to believe... to view its role in a way that is fundamentally at odds--
William H. Rehnquist: But that really converts Caldwell into something that a majority of the Court never subscribed to. You're saying it's not limited to being factually misleading, but if it tends to diminish the jury's sense of responsibility. I don't think a majority of the Court subscribed to that view. This evidence I believe is misleading for two reasons. One is that it led the jury to view its role in a way that was fundamentally at odds with the Eighth Amendment but also because of language in the offending document itself. Not only did it say that the defendant had been sentenced to die, but that the defendant was asked in open court if he could state good cause why the jury's verdict should not be imposed, that he could not, nor could the court find any. I think a juror could have read this language to be a concession on the part of the defendant or an independent determination by the trial judge that he was in fact deserving of death, and I think this document-- --You don't challenge the factual accuracy of that transcript, do you?
Lee Ann Jones Peters: --The factual accuracy of that document?
William H. Rehnquist: Yeah. Did it purport to be a recitation of something that had happened at the sentencing proceeding?
Lee Ann Jones Peters: I think it was mere formal language in the document.
William H. Rehnquist: It didn't purport to be a recitation, then?
Lee Ann Jones Peters: No. Even if the evidence was not misleading or inaccurate, which I believe it was both, it still was irrelevant to any State valid penalogical concern that the defendant had--
Anthony M. Kennedy: So you're saying that a State could not conclude that the sentencing process is enhanced by having this information, that as a matter of law it can never be enhanced by the jury having this information?
Lee Ann Jones Peters: --I think it would have the opposite effect. I think that it would--
Anthony M. Kennedy: So you're saying that as a matter of law a State may not conclude that under any circumstances?
Lee Ann Jones Peters: --Yes, unless the State can show a valid State penalogical interest. I cannot think of one.
Ruth Bader Ginsburg: Unless the State... I didn't hear that last remark.
Lee Ann Jones Peters: Unless the State can show that there's a valid State penalogical interest in showing the death penalty, that I cannot think of one at the moment.
Ruth Bader Ginsburg: So you are really arguing for a clear position that the jury may not be informed of an outstanding death sentence.
Lee Ann Jones Peters: That is correct.
William H. Rehnquist: Well, can't a jury be informed in the sentencing proceeding of a prior conviction?
Lee Ann Jones Peters: Certainly. Prior convictions are relevant to a concern of the jury, whether he is a threat to society, for example, but--
William H. Rehnquist: But you're saying that then the jury could have been informed if this sentence had not... had been upheld, it could have been informed that he had been convicted, but he couldn't have been informed of the sentence which was imposed on him?
Lee Ann Jones Peters: --That is correct.
David H. Souter: What if the crime had been convicted after the prior sentence had been imposed, and it was relevant under the law of, say, an aggravating factor, or what-not, that the individual had committed the later felony following receipt of a sentence of death? Could the fact of the sentence be introduced under those circumstances?
Lee Ann Jones Peters: I think that would certainly present a much closer question that we have here.
David H. Souter: What would the answer be?
Lee Ann Jones Peters: I'm not sure what the answer would be. There would be competing interests there, because that would... the State would have an arguably valid State penalogical interest. I think the important thing--
Ruth Bader Ginsburg: I thought your position in answer to my question was, your theory is it will give the jury a diminished sense of responsibility in every case to know that another jury has already returned a death sentence, and that there are no circumstances in which it would be proper?
Lee Ann Jones Peters: --I said that I could think of none, and maybe this would present a circumstance that would be proper, but there would be the competing interest of which... is it more probative, or is it more prejudicial, and that I think is a much closer question than we have presented in this case.
Ruth Bader Ginsburg: How would that affect your earlier argument that a jury is going to have a diminished sense of responsibility?
Lee Ann Jones Peters: That's the prejudicial impact of that evidence, is that it would diminish the jury's sense of responsibility. They would believe that their decision did not matter. A man can only be killed one time, so they would believe--
Ruth Bader Ginsburg: Why is your answer different in response to Justice Souter's hypothetical? What difference does it make what order the crimes... the order in which the crimes were committed?
Lee Ann Jones Peters: --What I was about to say in this case the crime that he got the death penalty for was committed 9 months or so after the crime that he was on trial for at this time. If a defendant kills in prison, that, I think, is the heart of that aggravating circumstance if the State elected to have one, that he killed while in prison or under a sentence of death. The important thing there is that society cannot be protected by the man. He has been incarcerated, and he is still committing crimes. I think there is certainly a way to get that concern before the jury without the prejudicial impact of undermining their sense of responsibility by telling them that he's already been sentenced to death.
Antonin Scalia: Ms. Peters, in Caldwell, as I recall, it wasn't only inaccurate, what was told to the jury, but it was intentionally inaccurate. I mean, it was misleading. It was a misleading statement by the prosecutor, isn't that right?
Lee Ann Jones Peters: That's correct.
Antonin Scalia: And there's no contention of any misleading in this trial, is there?
Lee Ann Jones Peters: I believe it was misleading, because it--
Antonin Scalia: Well, you say it turned out that the perfectly accurate statement later became inaccurate, because the conviction was set aside, but at the time it was said it was perfectly accurate.
Lee Ann Jones Peters: --Accurate, but misleading, because it led the jury to believe that its decision did not matter.
Antonin Scalia: Well, let's talk about that. Suppose evidence comes out during a trial that is misleading. Is that a basis for reversing even the conviction, never mind the sentence?
Lee Ann Jones Peters: If it--
Antonin Scalia: Where the prosecutor hasn't been responsible for it, but the defendant can come in and show, what this witness testified to was misleading, and indeed it was misleading, is that a basis for setting aside a conviction?
Lee Ann Jones Peters: --If it did not mislead the... I mean, if it did not undermine the sense of responsibility, possibly not, but if we have both of those factors, yes, I believe it is.
Antonin Scalia: Never mind the sense of responsibility for what the sentence is, it could have misled the jury as to the conviction, as to whether the person's guilty or not, but if the prosecutor has not been responsible for that, is that a basis for reversing the conviction?
Lee Ann Jones Peters: If it renders the verdict unreliable, yes, it would be, even--
Antonin Scalia: Do you have a case for that? That's extraordinary. We would have many more appeals up here than we do now, if any misleading evidence is a basis for overturning a conviction.
Lee Ann Jones Peters: --Not if any misleading, but if there's a reasonable likelihood that the verdict was so infected that it's unreliable, I think that it would be.
William H. Rehnquist: What case supports that proposition? Well--
Lee Ann Jones Peters: I do not have a case on that.
Antonin Scalia: --I don't think it's true. We would have endless appeals if that were the case, and if that's not the case with respect to guilt or innocence, I find it hard to understand why perfectly innocent misleading should provide an automatic appeal with respect to the sentence, either.
Lee Ann Jones Peters: In this case, I do not think it was perfectly innocent on the part of the prosecutor. The prosecutor did need to show the jury that John Romano had been previously convicted of a murder, that defense counsel stipulated to that fact. To get the document in was of no help. Once it was stipulated to, there was no question for the jury. The only reason that the State introduced the document as well would be to get this inflammatory information before the jury. The Court of Criminal Appeals held that the sentence of death was not relevant to the jury's consideration, and all lower courts that have considered this have agreed, with one exception, that being Pennsylvania, interpreting their own State law. Even the State has not seriously argued that this evidence is relevant to a State concern. The most that the State has argued in their brief is that it is arguably relevant to show the seriousness of the crime.
Antonin Scalia: Ms. Peters, the way misleading evidence is usually entered in these other contexts, in the context of a trial, is that counsel is supposed to be able to counteract it. If it's misleading, he tells the jury, this is misleading. I assume counsel here could have said that. Did counsel try to tell the jury, yes, there is a conviction... the jury was told it was on appeal, wasn't it?
Lee Ann Jones Peters: That's correct.
Antonin Scalia: The jury knew that. Counsel was free to say, as you've been told, it's on appeal. It may be reversed on appeal, so you should not assume that this individual will be put to death.
Lee Ann Jones Peters: If counsel had done that, I think he would have been precisely within the confines of Caldwell, because he would have told the jury that not only was that jury's verdict subject to appeal, but so was this jury's verdict, and that also might have lessened their responsibility. I think that there was not a way to undo what was done by the admission of this evidence. What evidence of a death sentence really does is to create an image in the minds of the jury that their decision is unimportant, and that is not a valid State penalogical goal. Adding to the prejudice in this case was the way that the evidence came in... the way that the information came before the jury. It came in the form of evidence rather than as an argument. Jurors are routinely told that arguments are not evidence, and that jurors are to base their decision on the evidence. The jury was told that in this case. They were invited to rely the... base their verdict on this evidence and to assign whatever weight they chose to it, therefore the instructions in this case actually compounded the prejudicial effect. The other thing that makes this evidence especially prejudicial is because it's not information--
Anthony M. Kennedy: Excuse me, how did they compound the prejudicial effect? I just didn't follow that.
Lee Ann Jones Peters: --By the instructions. In Caldwell, for example, it was an argument by the prosecutor that caused the jury's sense of responsibility--
Anthony M. Kennedy: Oh... oh, I see, the fact that the information came from the court compounded the error.
Lee Ann Jones Peters: --The fact that it was evidence, and juries are told not to base their decision on argument of counsel. They're routinely admonished in that regard, and they were in this case, they were in Caldwell, but the court did not feel that that admonition was sufficient to cure the prejudice. In this case, the instructions did not mitigate against the harmful information, but actually compounded it, because the jury was told to base their decision on evidence, and that this exhibit was an item of evidence. Also, the information this jury received is not evidence that is generally already known to the jury such as the ability... the availability of appellate review or powers of commutation, but information that was specific to this case and to this defendant. A jury that fully understands and appreciates the gravity of its task is vital to the American scheme of criminal procedure. It is indispensable to the Eighth Amendment's need for reliability in the determination that death is the appropriate punishment in a specific case. Were we not lawyers trained to question and dissect the obvious, we would see the obvious, and that is that evidence that a capital defendant has already been sentenced to die by another jury in an unrelated case injects an arbitrary factor that undermines the jury's sense of responsibility and renders the verdict unreliable. If there are no further questions, I'll reserve my time for rebuttal, Mr. Chief Justice.
William H. Rehnquist: Thank you, Ms. Peters. Ms. Blalock... Mrs. Peters.
Andre' Diane Blalock: Thank you, Mr. Chief Justice, may it please the Court: The Court of Criminal Appeals, in deciding this case, answered the questions that this Court has asked us to discuss, and that is whether or not there was any Eighth or Fourteenth Amendment violation in the introduction of this evidence. The Court of Criminal Appeals recognized this Court's holdings in Caldwell, recognized the standards that were to be applied in determining whether or not there is a Federal constitutional violation, and they determined that there was none. They first engaged in the--
Sandra Day O'Connor: Ms. Blalock, may I ask you a preliminary question? Was the prior sentence relevant as a matter of State law?
Andre' Diane Blalock: --The Court of Criminal Appeals held that it was not relevant, that it was irrelevant.
Sandra Day O'Connor: And you don't argue that it was?
Andre' Diane Blalock: No, Your Honor, I only... my only disagreement with the Court of Criminal Appeals decision is that perhaps it erred on the side of conservatism in analyzing this evidence. I think that other States--
Sandra Day O'Connor: But in any event, you are not telling us that it was relevant as a matter of State law--
Andre' Diane Blalock: --No, ma'am.
Sandra Day O'Connor: --and the defendant had stipulated to instruct the jury that there had been the prior conviction of murder?
Andre' Diane Blalock: Yes, he had.
Sandra Day O'Connor: And why is it, then, that the State insisted on entering this piece of evidence that showed the sentence?
Andre' Diane Blalock: The State is always entitled to prove its case, regardless of the defendant's stipulations. The State introduced, as is common practice, the judgment and sentence.
Sandra Day O'Connor: Well, I mean, it's just curious, since it was irrelevant as a matter of State law, and there had been a stipulation. I just wondered why it was that the State insisted on putting this before the jury.
Andre' Diane Blalock: The prosecutor did not know at that time that it was irrelevant. He didn't have the benefit of the Court of Criminal Appeals decision, and it's standard procedure when proving a prior conviction in Oklahoma in a capital case under an aggravating circumstance, or under... or noncapital felony cases that are enhanced by former convictions. Prosecutors prove the prior convictions by introducing the judgment and sentence.
Anthony M. Kennedy: Well, do you think that another State court could find that this is relevant?
Andre' Diane Blalock: Yes, Your Honor, I do.
Anthony M. Kennedy: Well, on what theory?
Andre' Diane Blalock: I believe that this... the fact of the prior sentence, as well as the prior conviction, could be considered relevant. I think that--
Anthony M. Kennedy: How does it help the jury's decision?
Andre' Diane Blalock: --It prevents the arbitrary factor, and the capriciousness that this Court has attempted to avoid in its capital cases. For example, in Oklahoma at this time there were only two possible punishments for first degree murder, and that was life imprisonment, or a death sentence. Giving the jury the additional piece of information about the prior sentence, what had been imposed in the prior first degree murder conviction, prevented them from speculating on what that prior sentence was.
Anthony M. Kennedy: So the Oklahoma court was wrong in saying that it's not relevant, then?
Andre' Diane Blalock: I don't think the... I think--
Anthony M. Kennedy: It's either relevant or it isn't, and you say the Oklahoma court is right, but some other court would be right in reaching a conclusion that's 180 degrees opposite from that--
Andre' Diane Blalock: --I think--
Anthony M. Kennedy: --and I'm having trouble deciding which is right.
Andre' Diane Blalock: --I think the Oklahoma Court of Criminal Appeals could have properly decided it was relevant evidence. I think that another court could properly decide that it was relevant evidence under State law, and satisfied some legitimate State interest. I think--
Anthony M. Kennedy: And that legitimate State interest is what, again?
Andre' Diane Blalock: --To prevent the jury's speculation about what the prior sentence was that prevents them from oversentencing on the second case, thinking perhaps this defendant received a life sentence on the prior first degree murder conviction, so we will make up for it.
David H. Souter: Well, you're assuming that they're not following your instructions, and your whole argument assumes that they're not going to play it straight when the judge instructs them on their choices and the basis for their choices in the case before them.
Andre' Diane Blalock: I think that's exactly what petitioner does, is assume that they're not following--
David H. Souter: Well, but that... isn't that exactly what you're doing? At this moment, that's what you're doing, because your brief says, we accept that the information was irrelevant and further that it could diminish the jury's sense of responsibility, but there were all these other instructions.
Andre' Diane Blalock: --I do accept that the Court of Criminal Appeals held that it was irrelevant, and I don't have any quarrel with that.
David H. Souter: No, but your--
Andre' Diane Blalock: I just--
David H. Souter: --Maybe we misunderstood. I thought your answer to Justice Kennedy was that a legitimate argument... i.e., a sound argument could be made that it was not irrelevant, and wasn't that your answer to him?
Andre' Diane Blalock: --I believe that another State court could very well find that it was relevant evidence, and I believe the Court of Criminal Appeals could have found that it was relevant evidence.
David H. Souter: So that it would have been a sound conclusion if they had so found.
Andre' Diane Blalock: Yes, exactly.
David H. Souter: And doesn't your argument for the soundness of that conclusion rest on the assumption that the jury in fact will not follow its instructions in the case before them?
Andre' Diane Blalock: I don't believe so. I believe that the additional piece--
David H. Souter: Well, how is it relevant if they follow the instructions in the case before them that another jury in another case for another crime sentenced to life or sentenced to death? What's that got to do with it?
Andre' Diane Blalock: --It gives them an additional piece of evidence about what... about that former crime. There's no question that--
David H. Souter: Why do they need to know anything about the former crime? He's... the defendant is on trial for this crime, not that crime.
Andre' Diane Blalock: --Absolutely, and were we talking about the guilt phase, that would certainly be true, but in the sentencing phase, the fact of the prior conviction is certainly relevant evidence. That's not at issue.
David H. Souter: Under what criterion of law?
Andre' Diane Blalock: In the sentencing phase of the capital case... here there were alleged two aggravating circumstances.
David H. Souter: Does Oklahoma define one criterion for... or, strike that. Does Oklahoma provide that one criterion for imposing the death penalty is that a prior death penalty has been imposed?
Andre' Diane Blalock: No--
David H. Souter: Is that the law?
Andre' Diane Blalock: --absolutely not.
David H. Souter: Then I just don't see the relevance of it at all. I assume your point is that the death penalty would not have been imposed unless it was a particularly serious, heinous kind of a murder, and that the jury who knows someone has not only committed a murder, but committed a murder that a prior jury thought was so horrible that it should be punished by death, that's likely to have been a worse murder, is that what you're saying? If you're not saying that, I don't know what you're saying.
Andre' Diane Blalock: I'm saying that--
Antonin Scalia: Because you have to acknowledge that the mere fact that the person was sentenced one way or another is irrelevant to the determination, isn't it?
Andre' Diane Blalock: --In the second case--
Antonin Scalia: Unless it indicates something about the nature of the person's character, and the only way it can do that is that one presumes that a prior jury doesn't give death unless it was a really horrible crime.
Andre' Diane Blalock: --It can give the jury additional evidence about the fact of the prior crime, that it was a particularly horrible crime. We all know that first degree murders are not all the same. It could say something about the defendant's character, the reason for the death sentence was imposed--
John Paul Stevens: May I ask this question about... in Oklahoma, the jury does the sentencing even in noncapital cases, isn't that correct?
Andre' Diane Blalock: --Yes, Your Honor.
John Paul Stevens: And in... when the prosecutor in the sentencing hearing calls the attention of the jury to, say a prior armed robbery conviction, is it the practice to give the details of the armed robbery conviction, or just the statutory crime and the fact that he was found guilty?
Andre' Diane Blalock: In a noncapital case, the only thing that's relevant is the fact of the prior conviction, so the prosecutor merely introduces the judgment and sentence showing there was a prior conviction, showing it was final--
John Paul Stevens: And he's not permitted to go into the gruesome details of the prior one to show this was really a serious armed robbery.
Andre' Diane Blalock: --Not in a noncapital case.
John Paul Stevens: Then is there any reason why there should be a different rule in capital cases?
Andre' Diane Blalock: Well, yes, because the aggravating circumstance is that this evidence was used to prove... there were two different ones, and one was that there was a probability the defendant would pose a continuing threat to society. In order to prove that, the State has to go behind the fact of the mere conviction and show the facts of the crime.
John Paul Stevens: Well, is the State permitted to... beyond putting in the death... the fact that he was sentenced to death, is it permitted to put in all the details of the prior conviction?
Andre' Diane Blalock: As to the continuing threat aggravating circumstance, the State has to put forth that evidence about the prior crime, and it may not even be an adjudicated crime under Oklahoma law.
Antonin Scalia: Was that done here? I mean, the nature of the prior murder for which the conviction was made?
Andre' Diane Blalock: Yes, Your Honor, it was. The fact of the Thompson murder, and that was the prior conviction and sentence that we're talking about--
Antonin Scalia: I mean, all the nature and the circumstances. Well, then I don't understand why the death penalty in the earlier case was relevant any more, because if in fact the jury knows first-hand that it was a horrible crime, it doesn't have to know that second-hand from finding out that the death penalty was imposed.
Andre' Diane Blalock: --There was also an aggravating circumstance of prior violent felony conviction. In order to prove that, the State had to introduce the judgment and sentence showing--
Ruth Bader Ginsburg: Well, one thing is the judgment and sentence--
Andre' Diane Blalock: --the prior conviction.
Ruth Bader Ginsburg: --but that doesn't tell the details of the crime. Would you tell us what's in this record about the prior conviction? There's the conviction, and the death sentence, and what else was this jury told about the prior murder?
Andre' Diane Blalock: In the second stage the State put on--
Ruth Bader Ginsburg: I thought it was all based on a stipulation, and the only question was whether the judgment that showed the death sentence would go as well.
Andre' Diane Blalock: --No, ma'am, that's not correct. The State also put on live witnesses who testified as to the facts of the Thompson murder, and that was to show the continuing threat aggravating circumstance. That's part of our argument, that in this case, this additional piece of accurate evidence could not have possibly influenced the jury's verdict. Not only had they already convicted this defendant of first degree murder--
Ruth Bader Ginsburg: You're arguing against the decision that you're defending again, because didn't the Oklahoma Court of Criminal Appeals say, this could diminish the jury's sense of responsibility. It said two things. It was not relevant... the imposition of a death penalty by another jury is not relevant, and it said, learning the defendant had previously received a death sentence could diminish the jury's sense of the importance of its role.
Andre' Diane Blalock: --The Court of Criminal Appeals recognized that there was a possibility, or at least the issue had been raised that this was a Caldwell-type violation. Then they went through that analysis and held that it was not in this case. They also held that the introduction of this evidence did not infect the sentencing procedure so as to constitute a due process violation, therefore engaging in the Fourteenth Amendment analysis. After that, they held that this piece of evidence was irrelevant and should not have been admitted under State law. They then considered the fact of the admission of this irrelevant evidence under State law in the entire context of the proceedings, and held that it could not have possibly affected the jury's verdict.
William H. Rehnquist: Ms. Blalock, what exactly was it that the Oklahoma Court of Criminal Appeals held was irrelevant, the admission of the sentence?
Andre' Diane Blalock: That's all, Your Honor, the fact that the judgment and sentence was not redacted, was not edited to delete that portion that reflected what the defendant had received on the prior first degree murder conviction. That's the only portion of the evidence that the Court of Criminal Appeals found was irrelevant.
Sandra Day O'Connor: Ms. Blalock, in view of the fact that the court of appeals found there was error here, did it have to conduct harmless error analysis, in your view?
Andre' Diane Blalock: It did not find that there was constitutional error, and what the petitioner presupposes is that the Court of Criminal Appeals engaged in the wrong standard set down by this Court when there's Federal constitutional error. The Court of Criminal Appeals did not ever find that. They didn't find that there was a Federal constitutional error, nor did they find that there was a State constitutional error, they just found that the admission of this evidence was irrelevant, and then, in the context of all the other evidence which was presented in the sentencing stage, decided whether or not it could have affected the jury's verdict, and they held that it did not.
Ruth Bader Ginsburg: What was the standard that the court applied to determine that though there was error, it wasn't fatal?
Andre' Diane Blalock: They found that, when viewed in the entirety of the evidence, and in the instructions that were given to the jury, that it was highly unlikely that this evidence could have influenced the jury's verdict. We quoted in our brief... there are two different analysis, or two different--
Ruth Bader Ginsburg: The court seemed to think there was some constitutional component to what it was doing, because it said, we must review this under a heightened standard because the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny, so I'm not... what do all those words add up to? Heightened standard, greater degree of scrutiny... what was the standard that the Oklahoma criminal--
Andre' Diane Blalock: --I believe in that context... and that quotation from the court is at page 58 of the Joint--
Ruth Bader Ginsburg: --Yes.
Andre' Diane Blalock: --Appendix. The court recognizes that capital sentencing procedures and capital trials require greater degree of scrutiny, and recognizes this Court's decision in California v. Ramos. They then go into their analysis, and make the due process determination whether or not the introduction of this evidence infected the sentencing procedure to the degree that it was unreliable and constituted a due process violation. It then held that it did not.
Ruth Bader Ginsburg: Was this heightened standard, was that a harmless error standard, and I believe Justice O'Connor asked you that question earlier.
Andre' Diane Blalock: They did not find constitutional error and then engage in a harmless error analysis under this Court's decisions of what standard applies in constitutional violations, so no, they didn't do that. They just recognized that the evidence was irrelevant, and determined that it couldn't have affected the jury's verdict.
John Paul Stevens: Well, their reasoning, as I understood it, was that there's no Caldwell error unless the alleged defect in the proceedings gave the jury the impression that someone other than the jury would be doing the sentencing.
Andre' Diane Blalock: That was--
John Paul Stevens: That's the way they reasoned.
Andre' Diane Blalock: --That was exactly their reasoning as to the Eighth Amendment, the Caldwell violation.
John Paul Stevens: It's a fairly narrow reading of Caldwell.
Andre' Diane Blalock: Well, in this case I believe that they were correct in holding that Caldwell didn't apply. The jury... no one ever indicated or hinted to the jury that they were not the final decisionmakers as to the defendant's death sentence in this case. The prosecutor never told them that, the trial court certainly never told them that, in fact they did the opposite. The jury instructions emphasized to the jury that the decision was up to them, there was certainly no prosecutorial misconduct or any bad faith action on behalf of the State or the trial court in seeking to undermine the jury's responsibility in rendering a sentence in this case. Although I believe that the Court of Criminal Appeals was certainly correct in their analysis under the Eighth and Fourteenth Amendment and held that this was not a Federal constitutional violation, going back to my earlier point, I don't think that they had to determine that the evidence was irrelevant, I think that they could have determined that the evidence was relevant. I think that another State could find under their evidentiary rules that this sort of evidence was relevant.
John Paul Stevens: Is there any... do you have any cases that have found this kind of evidence relevant?
Andre' Diane Blalock: The ones that we've cited in our brief, and I believe there is... the primary one is out of Pennsylvania. Most of the cases that have dealt with this type of evidence have been cases in which the jury not through the admission of evidence but through the newspapers, the media, or through their own common knowledge had some knowledge that the defendant had a prior death sentence. Some of them knew that the defendant had a prior death sentence that had been vacated or had a valid outstanding prior death sentence.
Anthony M. Kennedy: I was going to ask about that. I take it that under the petitioner's submission, if a juror had such knowledge that would be a ground to excuse for cause? I would take it that would have to be the petitioner's position.
Andre' Diane Blalock: Yes, I would think so. Accepting petitioner's argument at face value, I don't think I'm stretching petitioner's argument in saying that any time a juror has knowledge defendant has a prior death sentence, then a fair trial is not possible and a reversal will have to result.
Anthony M. Kennedy: Of course, here the instruction came from the court, which gives it added importance, I suppose, and added... courts don't usually instruct on irrelevant matters.
Andre' Diane Blalock: The evidence came in the... the knowledge of the prior death sentence came in the form of evidence in the judgment and sentence. The trial court didn't refer to it except to emphasize to the jury that it was not final and that it was on appeal. Pardon me. If there are no further questions, then in conclusion, I would like to reiterate to this Court our position that the Court of Criminal Appeals was correct in their determination of whether or not there is a Federal constitutional violation, and they were correct in their analysis of the effect of the prior death sentence in the context of this case. I would also like to remind you that in this particular case, I realize that what we're primarily concerned with is setting down guidelines or determining for future cases what the effect of this evidence is, or if this evidence should be admitted at all, but in this case, the Court of Criminal Appeals had to engage in a reweighing analysis because the prior violent felony conviction aggravating circumstance fell. They then considered, as this Court has held that they may, the remaining aggravating circumstances, and considered all the mitigating evidence that was presented on behalf of the defendant and held that the best sentence was still the appropriate sentence. Their decision is on page 66 of the Joint Appendix. So certainly in this case there's absolutely no question that that judgment and sentence that reflected that the defendant already had a death sentence could have affected his verdict, could have affected the sentence of death in this case at all, based on what the Court of Criminal Appeals had to do. Thank you.
William H. Rehnquist: Thank you, Ms. Blalock. Ms. Peters, do you have rebuttal? You have 10 minutes remaining.
Lee Ann Jones Peters: May it please the Court: Mrs. Blalock has argued that... said that the jury was never told that the verdict was not up to them. I would submit that this piece of evidence, like a picture, was worth a thousand words. They did not need to be explicitly told that their decision did not matter. There's reason in this record, as well as the other records in Romano's cases, to believe that this jury did in fact approach its duty with less care than it was required to. He has now been tried by three juries because the first trial was vacated and he was retried on that. In all three of those cases, the juries were given identical information going to whether he presents a continuing threat to society. The only difference in any of those cases was in this case, with the jury having the added knowledge that he had already been sentenced to die. The other two juries found that the State did not prove that he presents a continuing threat to society. Only the jury with the knowledge that he had already been sentenced to die made that finding. The problem with what the court of--
Anthony M. Kennedy: If prior verdicts are irrelevant, why are you telling us this?
Lee Ann Jones Peters: --If prior verdicts are irrelevant?
Anthony M. Kennedy: Your whole point is that it's irrelevant and we shouldn't know--
Lee Ann Jones Peters: Prior death sentences are irrelevant.
Anthony M. Kennedy: --what prior sentences are. Now you're telling us about those.
Lee Ann Jones Peters: Only what impact this might have had on the jury as an illustration.
Ruth Bader Ginsburg: You're saying-- --Well, that makes me-- --they're not relevant but they're highly prejudicial, that's what you're--
Lee Ann Jones Peters: I'm saying that the death sentence was highly prejudicial, and that that evidences what might have happened in this case. The Court of Criminal Appeals--
Antonin Scalia: --Of course, that third conviction might have been the only one that was on a Tuesday, too. That might have been the reason.
Lee Ann Jones Peters: --Also, on--
Antonin Scalia: You really don't know. You're just saying that post hoc, therefore, right, that was the reason. You don't know that that's the reason. Maybe. Maybe not.
Lee Ann Jones Peters: --Certainly, but we know that the only difference in what the jury heard was evidence of the death sentence. When the Court of Criminal Appeals reviewed this case and reweighed, as I said before, they relied on an instruction that was not given, and they presumed the jury's verdict to be correct, so they gave... they relied on findings made by this jury, but if this jury's sentencing responsibility was undermined, its findings of aggravating factors were also affected and could not be relied upon by the jury. It's difficult to imagine what evidence could be more prejudicial to a capital defendant than the fact that he's already been sentenced to die. Thank you.
William H. Rehnquist: Thank you, Ms. Peters. The case is submitted.


Warren E. Burger: We will hear arguments next in Number 72-5830, Patterson against Warner. Mr. Higinbotham.
George R. Higinbotham: May it please the Court. This case arises from State of West Virginia. It was a three-judge federal court below that held a state statute in the State of West Virginia as being constitutional. That statute provides that one who seeks to appeal from a hearing and a judgment or a justice of the peace in the State of West Virginia, it required to posts a double bond, a bond twice the amount of the judgment. We challenge that as unconstitutional denying Equal Protection and Due Process of law. Before I begin with the merits of the case, I would like to deal with the subject of mootness. We have made the unusual move perhaps for an appellant whose bringing the case before the Court, of suggesting that our case may be moot. I would like to point out to the Court that I am not arguing for mootness. I am fulfilling what I believe is my duty to the Court, and informing the Court of all the issues and all the circumstances of the case, that there was a case in the State of West Virginia that went to the State Supreme Court in West Virginia that was virtually identical, practically it’s not much different. That case raised same issues as are presented here. The West Virginia Supreme Court declared the judgment of the justice of the peace in that case void. Another case, an older case of the West Virginia Supreme Court said that when you have a pecuniary interest of a justice of the peace in his judgment, then the judgment is void ab initio, that was in a criminal context. The State Supreme Court in this Reece case, this is the name of the case, Reece v. Geis --
Speaker: That’s since the judgment below?
George R. Higinbotham: Since the three-judge court, yes sir. It’s just very recent, 1972.
Speaker: What’s the spelling?
George R. Higinbotham: Reece, R-E-E-C-E versus Geis, G-E-I-S. I’ve cited it in my motion or suggestion of mootness, the -- it’ 198 S.E. 2d.
Speaker: Has the statute been --
George R. Higinbotham: 198 S.E. 2d, I am not sure what page it is sir. It is in the record, I have cited it in the motion.
Speaker: Has the statute since been amended?
George R. Higinbotham: No, sir. There’s been no change in the statute at all.
Speaker: Well, does this suggest that perhaps if three-judge court committed to address the significance of this recent decision, perhaps it would not have reached the conclusion?
George R. Higinbotham: No, sir. I think the conclusion would be the same. We have a decision by the West Virginia Supreme Court and by the three-judge court that the double bond has a rational basis. Getting back to the mootness thing, let me refer to that again. The effect of that case was, it said that the judgment was but moot. The judgment was void. That restored the status quo of the parties. In other words, that judgment of the JP was void, but it wasn’t the underlying claim that was void. Therefore, the creditor could go right back in the same JP court, and again sue the same debtor, the same situation applies here and for those reasons I don’t think --
Speaker: But then, what would happen to the guys, would the JP have to disqualify himself or something?
George R. Higinbotham: Well, as a practical matter now, that’s what they’re supposed to do. As a practical now even though they haven’t done and the JP waives the collection of appease that may have been perceived otherwise. [Voice Overlap] Yes, sir.
Speaker: That’s the infirmity in his judgment, that he was receiving --
George R. Higinbotham: That’s the one that the Reece court found wasn't affirmed.
Speaker: That is -- that he received a financial benefit if he decided to pay for the plaintiff that was settlement?
George R. Higinbotham: Yes sir, exactly. $2.50 for execution $0.35 for mailing it.
Speaker: Which he didn’t get if he decided to pay for the defendant?
George R. Higinbotham: Yes, sir. They said that was why it was void, but practically speaking and I think this is the key to that thing. The Reece court declared the judgment void below. Now there’s been no rush by creditors or JP’s or like in the State of West Virginia to suddenly come around and say, “That statute was void, we’re going to return all of the moneys that we have collected through the years.” Therefore, it’s not a retroactive application.
Speaker: Well the most that could happen here, if I understand you correctly is, this JP collected the $2.50, I get?
George R. Higinbotham: He hasn’t executed yet, Your Honor. He did not execute it, at that -- we sought to appeal, sought to post the bond and so on, we could not post the bond and that’s what gave rise to this case, went in to federal court and joined it, and so --
William H. Rehnquist: Supposing you went into the West Virginia State Court, if the judgment here were affirmed, and sought to enjoin execution on the grounds -- on the JP judgment, on the grounds that that judgment was void, would you prevail under the Reece case, do you think?
George R. Higinbotham: There again it adds the question of retroactivity, and I don’t know what the three-judge court, I mean a West Virginia Court would do. They would have to decide whether Reece was retroactive, and if they decided Reece was retroactive, that means everybody, all through the years would have to return their moneys. I would hope to get attorney’s fees if I could get something like that, but I don’t think that’s very likely. But I think the more important thing is here, is its fact that the creditor couldn’t go back in to the JP court, and considering the cases on mootness, if this Court has decided, if there’s a likelihood of repetition of the conduct that complained them, then the case is not moot, and there’s a good reason to believe that the creditor would do that, because it is cheaper for him to go to a JP court. He’s gone to the same JP before, and won. There’s a good reason to believe that he would win again, and he doesn’t have to have an attorney --
William H. Rehnquist: Do you read that capable of repetition and needing review language of Moore against Ogilvy, and cases like that, is being the general doctrine of mootness, or perhaps an exception in election cases?
George R. Higinbotham: No, I don’t think it’s just election cases. The general rule that I understand mootness is that there must be a controversy at all stages of the litigation. In the W.T. Grant case, U.S. versus W.T. Grant that was a case where they had the interlocutory directorship and the director says, they sought an injunction against him and he says, “I’ve dropped my directorship, so there’s no longer an interlocking situation.” That is only one factor to be considered, that he said that he would drop --
William H. Rehnquist: That turned down the availability of an injunction not on mootness, didn’t it, W.T. Grant?
George R. Higinbotham: No, sir. I think that was a mootness case. That was a mootness case, yes sir, and he said that the fact that it may just like the judgment here. It’s void. He’s not doing what was complained of, but it’s very likely to come up again. The Act could repeat itself. Another case that I would rely upon is --
Thurgood Marshall: Does the court find the statute unconstitutional or not?
George R. Higinbotham: Sir, I’m sorry?
Thurgood Marshall: Did the Supreme Court of West Virginia find this statute unconstitutional?
George R. Higinbotham: No, sir. It didn’t consider --
Thurgood Marshall: Well, is that the one point that’s involved here?
George R. Higinbotham: They considered the second half of the statute. The second half of this statute is a double bond also in eviction cases plus one year rent.
Thurgood Marshall: But they did know of the statute that we had before as unconstitutional?
George R. Higinbotham: No, sir. They did not have this part of the statute beforehand.
Thurgood Marshall: How can that be moot then?
George R. Higinbotham: I don’t think it is. I’m not arguing for mootness sir. I’m just saying that there may be a question of mootness. It’s not my function to decide whether it’s moot or not, by avoiding the issue. I submit to you that the case is not moot.
Speaker: Does respondent, the appellee raise this?
George R. Higinbotham: No, sir. I raise it. I think that it was -- he did not do it, then I thought that it was my function to do it, so I did raise it.
Speaker: Is there any problem of the statute of limitations having run if the creditor has to bring them out?
George R. Higinbotham: No, sir. 10 years --
Speaker: 10 years?
George R. Higinbotham: -- in West Virginia so he can go right back there and sue them again.
Speaker: Has this note been paid off yet?
George R. Higinbotham: No, sir. It has not. What he’s doing is suing on the note, and --
Speaker: Is the action that's been instituted in some court of record under your practice?
George R. Higinbotham: Yes, sir. I think that’s one of the keys to this case. There is a concurrent jurisdiction in the JP’s court with a court of record, and I think that gives rise to our Equal Protection argument here, which I would like to turn to now if the Court has no more further questions on mootness. We have painted a picture of the JP system in West Virginia, words and all, we pointed out a lot of flaws in it. The Reece case bares us out on one of the flaws that the JP has an interest in the judgment. We’ve also pointed out that a JP is not an expert in law. He is not a learned judge. He’s not required to be an attorney --
Speaker: But do you rely on that as a matter of due process in this case?
George R. Higinbotham: Your Honor, what I am doing is -- what I am suggesting is when you focus upon the double bond, to whether it is constitutional or unconstitutional, to look at the entire system. We’re saying that the double bond is unconstitutional, because we have very compelling reasons to want to get into a court of record. When we have raised a question of law, and I think it’s pretty well indicated in the record here, we said that we had a substantive defense under the UCC, and the creditor’s attorney when he answered the complaint in this action said, “We admit it. This is not a case of obstruction. You really do have a good question of law.” I think that’s very significant.
William H. Rehnquist: What is the West Virginia bond requirement provision for an appeal from a court of record?
George R. Higinbotham: Single bond and that raises first two classes.
William H. Rehnquist: Single bond covering what items?
George R. Higinbotham: Judgment plus interest, so far that’s the way the statute reads. There’s no damages for the delay demanded on a single bond. The statute which covers that is West Virginia Code 58514, which would indicate that in a court of record, only a single bond would be required that would be on the judgment and perhaps on the interest of 6% that can be awarded to the appellant if he ultimately loses. So what the court of record appellant must post, that he must post a bond like a JP appellant post, he would post a bond in the amount of $318.00 or posing $300.00 judgments in two different systems. He would post a bond of $318.00, whereas, the JP appellant must post a bond of $600.00.
Speaker: No provision for costs?
George R. Higinbotham: Not in the court of record system. However, there is a provision for cost in the JP system. As a matter of fact, that’s one of the things brought out by Reece. They said it had a rational basis, because the double bond was for the judgment, plus cost, plus interest and as appellee points out and that as is provided in our state statutes you are entitled to damages for delay. When you add these up mathematically, and this is something I think is very important. Just the simple mathematics indicates that there is not a rational basis for a double bond.
William H. Rehnquist: What are damages for delay if other than interest, Mr. Higinbotham?
George R. Higinbotham: I don’t know, Your Honor that seems to me to be interesting. Let me point it out to you exactly. You are entitled to in the JP system the bond under the Reece decision would be to cover the judgment which would be $300.00, 6% interest that adds up to $318.00 total, or no 6% on $300 is 18 more dollars, so you have $318.00.
Speaker: (Inaudible)
George R. Higinbotham: Yes, sir. And you have court cost to appeal the cost to go from JP court to a court of record is $10.00. Then you’re entitled on that 10% on the cost, the judgment, the interest of 6%, and the court cost of $10, you are entitled to 10% damages for delay on that. That adds up to a maximum judgment would ever be rendered against a appellant from a JP system. If he loses, it’s $360.80. Now, if you are posting a bond of $600.00, there is $290.00 left that has not been articulated as I don’t know what it’s for. There is no articulated state standard for why $293.00 --
Speaker: From the court, from the record, do I understand you say that the bond would be what, only the $380.00?
George R. Higinbotham: $318.00
Speaker: $318,
George R. Higinbotham: That’s all --
Speaker: Judgment and the interest. Now, and are you challenging the JP bond [Voice Overlap]?
George R. Higinbotham: Yes, sir. We say it denies --
Speaker: Independently of any other ground, on the ground that that’s a denial of Equal Protection, to require you to do that JP, but not from a court of record.
George R. Higinbotham: Yes, sir.
Speaker: Which of your points of the seven points presents that question?
George R. Higinbotham: It’s in our Equal Protections argument Your Honor, it is part 3. Are you referring to the brief itself?
Speaker: I am looking at your brief.
George R. Higinbotham: Yes, sir. It’s in part 3 (a).
Speaker: I am looking at the question presented at five. 3 (a)?
George R. Higinbotham: Argument is 3 (a) --
Speaker: Thank you.
William H. Rehnquist: Mr. Higinbotham, what’s the delay between the judgment in the West Virginia court of record, and judgment in the West Virginia Court of Appeals, or Supreme Court?
George R. Higinbotham: Well, generally I am not an expert on that Your Honor. I don’t think it would be any longer than a year.
William H. Rehnquist: If it were two years, I take it that the court of record would be entitled to require two years interest --
George R. Higinbotham: Yes, sir.
William H. Rehnquist: -- rather than one.
George R. Higinbotham: But generally, practically speaking as we pointed out in our brief and the state cases have indicated that generally, your bond from a court of record to go to the highest court in the state, we only have one step appellate system, is only an amount of the judgment, plus the interest of one year. Yes, sir, that practically speaking is what is done. There’s not many cases on --
Speaker: Who fixes one year’s interest? Is that on the statute?
George R. Higinbotham: That’s the judge below. Whoever --
Speaker: So it’s up to the judge?
George R. Higinbotham: It’s up to the judge to decide what it’s going to be. But practically speaking, it’s the judgment plus one year’s interest, but here we have two years. We also suggest that the difference in treatment in the JP system, in the court of record system goes much farther. And we also argue that the compelling state interest test should be applied here, not just the rational basis test. We have tried to paint the picture of a non expert deciding questions --
Speaker: Well, I gather that you prevail on this distinction between bonds -- JP bonds and court of record bonds. We don’t have to reach anything else, do we?
George R. Higinbotham: Yes, sir. But if you decide, we made the same argument to the West Virginia Supreme Court, and they decided it had a rational basis. You could do the same thing. So I would prefer to argue my entire case to play it safe.
Speaker: Right.
George R. Higinbotham: What we try to present is that there is a difference in treatment all through the court of record system and the JP system. We have --
Speaker: What was the rational basis that the Supreme Court of your state found?
George R. Higinbotham: They didn’t Your Honor, they said that the bond protects the judgment cost and interest, and that’s as far as they went in the Reece case. That’s the most recent definition of why you required a double bond.
Speaker: Well, I misunderstood you. I thought you said that you’d presented this whole argument to the Supreme Court of West Virginia, and that Court found that this has a rational basis?
George R. Higinbotham: It did, but they just said that it has a rational basis, because a double bond protects a judgment, cost, and interest. Now, where they came mathematically, I don’t see that it does, but that’s what they said. So that’s the close latest definition of what the bonds function is. They have defined the function of that double bond.
Speaker: And in what case did they do that?
George R. Higinbotham: Reece versus Geis.
Speaker: In Reece?
George R. Higinbotham: That’s the recent one -- yes, sir and --
Speaker: Were you a counsel in that case?
George R. Higinbotham: Yes, sir. I was.
Speaker: It can amount too much. Can a commercial bond, what’s the difference in the premium between $318.00 and the $600.00?
George R. Higinbotham: I think twice, $18.00. I think that is probably very close to what Lindsey, very close to the Lindsey analogy in this case. In Lindsey, you had a double bond also, so if you had to put up assured, you would probably have not that greater difference, but if you go all the way down the line --
Speaker: Lindsey involved in double bond that is automatically [Voice Overlap].
George R. Higinbotham: Yes, sir. Winner take all, we don’t have a winner take all situation here, but if you follow the mathematics of it all the way down the line, you figure out that the state objectives of protecting the interests and 10% damages for delay, and so on, which you wind up with is ultimately, maybe not a winner take all situation, but if the appellant in the JP system loses, he loses $60.00 more than does an appellant in a court of record system. It’s going to cost him $60.00 more than it will cost a court of record appellant, if he loses, and I don’t see if that’s --
William H. Rehnquist: You’re not talking just about bond premiums then. You’re talking --
George R. Higinbotham: Not just premium, sir. We’re talking about the state’s objectives also deny equal protection law. As the way they have spelled it out as a result of the Reece case, you’re paying interest twice, you’re paying twice the premium, and that adds up to $60.00 more than the court of record appellant pays.
William H. Rehnquist: Well, but in the long run, an unsuccessful appellant to the Supreme Court of West Virginia can be held for costs that aren’t covered by a bond. I would think if West Virginia procedures like most States. You know, you can be assessed cost on appeal and be liable for them, even though you may not have put up a bond.
George R. Higinbotham: Yes, sir. But we’re posing here an indigent. We’re posing an indigent, that’s a frame of reference. We have an indigent who can not post the bond in JP system.
Speaker: On that basis, you make the same argument for a single bond, true?
George R. Higinbotham: No, sir. Not quite. This is where our argument comes to as Lindsey recognized, there is this gray area, and there’s going to be some people who are not going to be able to post that bond. We agree. We do not ask this Court to overturn Arnold versus Union National. We’re asking only for a single bond.
Speaker: Let me go back to these premium figures that you so glibly throw around. Where do you get that $60.00?
George R. Higinbotham: Alright, let me take it again.
Speaker: After all, we don’t know West Virginia premium rates.
George R. Higinbotham: Yes, sir. Well it was stipulated. It was found as a matter by the court below that it would be 6% surety. So, that’s what it would cost on the bond. Let me go through the mathematics again for you. In the JP system, we have a judgment of $300.00, interest to be charged on that, that’s under Code 4765 is 6%.
Harry A. Blackmun: As fixed by the judge?
George R. Higinbotham: Sir?
Harry A. Blackmun: As fixed by the judge?
George R. Higinbotham: No, sir. This is statutory.
Harry A. Blackmun: One year’s interest?
George R. Higinbotham: One year’s interest.
Harry A. Blackmun: A little while ago, you said it was fixed by the judge.
George R. Higinbotham: That’s in the court of record system. I’m just talking about the JP system now.
William H. Rehnquist: Well, then you can’t know if it’s one year’s interest when you’re talking about a simple double bond that Mr. Justice Blackmun is asking you about. You’re saying it's one year, but there should be more than a year’s delay, it could be more than a year’s interest.
George R. Higinbotham: Yes, sir. That’s possible, but that’s not the way the statute was set up. If you look at the second half of that statute, and I think you are going to have to construe them together. The second half of the statute is also an appeal statute, double bond to appeal an eviction plus one year’s rent. That means that when this statute was enacted, this was what was anticipated by the legislature that it would only take one year to appeal a decision of a JP. It would not take any longer than one year. In addition to which, we have a two-term rule in the State of West Virginia. That is, if you appeal from a JP to a court of record, you’ve got to bring that on for hearing within two terms of court. That’s within one year. So when you take it in that frame of reference, it’s not going to be any longer than one year. When you look at the statute itself, the second half of the statute, which refers to one year’s rent in an eviction situation, plus the two-term rule, then it’s very reasonable to assume that the interest will not be more than one year. I would like to return again to the compelling state interest argument that we have. We suggest that there’s not equal treatment in the two systems, in the court of record system or in the justice peace system. You have a bias, which is built into the law. The Reece case bares us out on that argument. You do have an admitted JP based with a question of law and he is not an expert in it. We have in the same situation, a person who has the money can afford to go into a court of record, he can post that bond. Whereas, an indigent cannot post a bond. I realize this raises the question of wealth classification, and this Court is not seem fit to go so far as to say compelling state interest standard applies to wealth classification. But what I’m suggesting is, it’s just not the wealth classification and there is something more here than the wealth classification. That is the unequal treatment in the two court systems. When you have concurrent jurisdiction, creditor could have gone into either one of those courts, it’s his choice. He could go into either court of record system where my client would’ve had a learned judge who is not biased. He had -- no fees were going to be accrued to him. Then the compelling state interest state standard applies here. And it’s -- the burden of course then of the state to show that there is a compelling state interest for the discrimination on the bond. We also suggest that this is like the Boddie case. I’m not saying that this is a Boddie case. We’re not saying that the contract creates a fundamental interest. What we’re saying is that equal treatment in the court is a fundamental interest, like the fundamental interest found in Boddie. Boddie stands alone that’s clear from Kras and Ortwein decision. We’re not saying that the contract equals marriage. What we’re saying is that the right to be heard and to be treated equally within a court system. Equal treatment within a court system is a matter of due process of law.
Warren E. Burger: Is there any limitation in West Virginia on whether a lawyer may appear in a justice court? Do they permit them?
George R. Higinbotham: Yes, sir.
Warren E. Burger: Do they permit a pro se appearance ordinarily for trial in the court of record?
George R. Higinbotham: You can appear on your own in the court of record. One of our arguments, of course is that if you have a lawyer who is trying to argue matters of law before a JP that more than likely he is not going to know what you are talking about?
Warren E. Burger: Well that’s the function of a lawyer in the whole system of justice, isn’t it? To instruct the judges on what the law is?
George R. Higinbotham: Well, if judges usually would have had some training sir. And that --
Warren E. Burger: England does pretty well with the lay justices of the peace.
George R. Higinbotham: Yes, sir. We think as questions of fact that they do just very well here also. But when you have a situation where you have a sophisticated question of law, then it’s very unlikely that the JP is going to understand, what you’re talking about.
William H. Rehnquist: Their question –it's not immediately apparent to me that an ignorant JP automatically benefits the plaintiff rather than the defendant. Suppose you have a sophisticated question of release or something of that that can be to the advantage of --
George R. Higinbotham: Yes, sir. It’s very possible. It would discriminate against either party. What we suggest is that, what I would like to see in replacing this is perhaps a single bond, but a method whereby questions of law could be presented to a system of certification. So that the question of law could be presented to the learned judge, then you wouldn’t have any discrimination at all. You wouldn’t have any complaints. You wouldn’t have any complaints about a JP about not being learned, because if you have a sophisticated question in law, then you can present it to the JP in a single bond would not discriminate against anybody.
Thurgood Marshall: Would you make the same point if the judges of the peace had been member of the bar for six months, and the judge on the trial court had been a judge for 40 years. Would you say that the JP had to have 40 years experience of judging?
George R. Higinbotham: We’re not asking for the maximum. We’re not asking for the most learned judge, Your Honor.
Thurgood Marshall: I’m trying to get, what kind of justice of peace do you want?
George R. Higinbotham: We’re not even asking for a Justice of the peace who is learned. That is one alternative. Like State of Pennsylvania has trained their justices of the peace. That’s an expensive proposition, but if you have a sophisticated question of law arises, there can be an alternative method.
Thurgood Marshall: Well, who would decide what is a “sophisticated point of law”?
George R. Higinbotham: That could be raised by --
Thurgood Marshall: Underscored sophisticated.
George R. Higinbotham: Yes, sir. That could be raised on motion of any in the parties -- or any of the justice --
Thurgood Marshall: Well can we -- What is the sophisticated?
George R. Higinbotham: I think here -- I think we have a situation right here where it’s a relative sophisticated question of law. Whether or not --
Thurgood Marshall: Now you’re relatively sophisticated.
George R. Higinbotham: Well, Your Honor, any question of law that there is a feeling on any party that the JP does not understand it, then if you certify that question, then you would do away.
Thurgood Marshall: Who does the certifying, you do?
George R. Higinbotham: Either party, either party the plaintiff, or the defendant, or the justice of peace.
Thurgood Marshall: Had you ever had a client who didn’t think his case was sophisticated?
George R. Higinbotham: Your Honor -- if it is just --
Thurgood Marshall: And absolutely important in life and death, have you got any clients who don’t think of that?
George R. Higinbotham: Again, Your Honor, there are sanctions. There could be sanctions for a thing like that.
Thurgood Marshall: Like what?
George R. Higinbotham: If you’re wasting the court’s time, if you’re wasting a court of reference.
Thurgood Marshall: You just want to change the whole system, don’t you?
George R. Higinbotham: Do I want to change? No, sir.
Thurgood Marshall: No, you enlist to?
George R. Higinbotham: No, sir. I am not asking for any type of legislation. What I’m saying is, if you have a single bond.
Thurgood Marshall: Well, how can you do this without legislation?
George R. Higinbotham: That of course is the legislature of West Virginia, but if the double bond does not stand, and if the single bond is replaced, it would be very simple. You’re still going to always have the complaint that JP doesn’t understand what we’re talking about. That’s the easy way out of that. It’s just to provide a system of certification so that when a party feels that his question of law is not been properly handled, he can go.
Thurgood Marshall: Can we make the State of West Virginia adopt such a law?
George R. Higinbotham: No, sir. I’m not asking for that. All we’re saying is --
Thurgood Marshall: You certainly are, because they do now have a law that says “No” to you.
George R. Higinbotham: I’m suggesting Your Honor, that there are less restrictive alternatives in posting a double bond. That’s all I’m suggesting.
Speaker: Your client is a pauper, is he not?
George R. Higinbotham: Yes, sir.
Speaker: Then how can he pay for even a single bond?
George R. Higinbotham: Again you’re going to have that gray area. This is what was recognized in the Lindsey decision. There are going to be some people who can not post that bond that can not post that single bond.
Speaker: Well, how would that even --
George R. Higinbotham: But there are going to --
Speaker: -- help your client at all? I mean --
George R. Higinbotham: Well, Your Honor, if quite frankly, I think if the double bond is struck down and the only bond left is a single bond, if he can’t post that, and it’s our hope that ultimately that we can persuade the legislature that when you have sophisticated questions of law, there should be a method of certifying questions of law to the court of record. That would be the simple way out. I’m not saying that every case that you’re going to have sophisticated questions of law that need -- a JP can find fact just as well as a judge can.
Speaker: One of your complaints is this double bond particularly when compared to an appeal from the court of record, which is a single bond plus one year’s interest generally set by the trial judge that you told us. But if we declare that violation of Equal Protection Clause, your client couldn’t appeal anyway, could he?
George R. Higinbotham: Not likely, I don’t know.
Speaker: Well, you hardly even have a stand to make that complaint if your client couldn’t appeal anyway?
George R. Higinbotham: Your Honor, what we’re posing here is the difference in treatment between a court of record appellant and you know, I can’t conjecture to make a hypothesis that he can make double bond and he can’t make a double bond and he can’t make a single bond. We’re not asking for you to say that bonds -- appeal bonds per se are unconstitutional. What we’re suggesting is that a double bond is discriminatory. That’s as far as --
Speaker: Well, I am just discriminating as your client, because he can’t make any bond, isn’t that right?
George R. Higinbotham: At the time this case rose, he could not make any bond.
Speaker: If he filed an affidavit, of --
George R. Higinbotham: Yes, sir.
Speaker: -- I think, didn’t he?
George R. Higinbotham: Yes, sir. We’re not asking you to throw out all bonds.
Speaker: Well, if that’s the only thing it would help your client, the only thing that would enable your client to appeal, wouldn’t it?
George R. Higinbotham: Well, again my suggestion is for state legislature in West Virginia to look for the least restrictive alternative. Otherwise, we’re still going to have a justice of the peace system with flaws in it. We’re still going to have a judge who is looking at matters of law. He is not an expert in them and as long as that continues, there’s still going to be unequal treatment in the West Virginia JP system, yes sir. But that can be eliminated. There’s a less restrictive alternative and that’s the method of certification that I’m suggesting.
Speaker: But that I think you’ve told us is for the West Virginia legislature.
George R. Higinbotham: That’s for the legislature. I’m not asking this Court to do it. All I’m asking this Court is to strike down a double bond.
Speaker: Why shouldn’t you have presented this issue to the West Virginia court rather than coming to the federal court? Once you had a case going in the West Virginia court?
George R. Higinbotham: Well, you can’t appeal it, Your Honor. The only thing at that point in time --
Speaker: Well, you could if it were found to be unconstitutional. I suppose you could appeal it. If the West Virginia courts have agreed with you that denying an appeal because if there’s a file of bond was unconstitutional, that would’ve ended up being an appeal.
George R. Higinbotham: It’s possible. We did that in the Reece case. That was what we did in the Reece case.
Speaker: That’s what I thought --
George R. Higinbotham: But this case was brought before the Reece case.
Speaker: Probably the federal district court, instead of taking your issue up to the state system.
George R. Higinbotham: Well, Your Honor, I quite frankly, can’t answer that. I didn’t bring -- I didn’t argue the case before the three-judges below. I didn’t file the action. I think it was just a matter of tactics. You do have a right --
Speaker: If Younger against Harris applies to civil actions, why shouldn’t you have presented your constitution issue inside the state system?
George R. Higinbotham: It’s possible to do it, but again it’s a question of discretion. When we went in on Reece, we went in to that court on a --
Speaker: In addition of question of discretion if the principles of Younger against Harris apply to pending civil cases --
George R. Higinbotham: Let me put it this way Your Honor, maybe I can explain it better. Reece was in the original jurisdiction of that court. We couldn’t get up to the appellate system in West Virginia, because the only way we can get up there is on original jurisdiction. We went out on a prohibition, and asked them to prohibit the enforcement of the state statute. They don’t have to give us a hearing on that. In the Reece case, it just so happens that they did, because --
Speaker: Did they object to the jurisdiction of the three-judge court?
George R. Higinbotham: No, sir. I don’t believe there was any objection whatsoever. Thank you.
Warren E. Burger: Mr. Gaujot.
Philip D. Gaujot: Mr. Chief Justice, may it please the Court. As occurred with counsel for the appellant I must assume that it was quite unusual for the appellee to submit some information to this Court in opposition to his suggestion for mootness. At the time, it was my opinion that this case before this Honorable Court was not moot, because of Reece versus Geis. However, upon further research it is my conclusion now that this case is moot based upon Reece versus Geis, and therefore, this Court need not concern itself with the issues now presented before this Court. If the Court pleases, I would like to --
Thurgood Marshall: Well you haven’t filed a suggestion of mootness, have you?
Philip D. Gaujot: No, Your Honor, I haven’t. I --
Thurgood Marshall: But this is the usual procedure before you argue?
Philip D. Gaujot: Yes, Your Honor, my original -- I was requested to respond to suggestion of mootness on behalf of a counsel for the appellant, so I would assume now that the motion is before the Court that I could change my position and argue that yes, it is moot.
Thurgood Marshall: Well, a normal procedure is that you file a suggestion of mootness.
Philip D. Gaujot: Yes, Your Honor, I think normal procedure is that the appellee --
Thurgood Marshall: When did you change your mind, just now?
Philip D. Gaujot: No, Your Honor, within the last quite frankly though, within the last several weeks. First, I would like to begin with the threshold issue of whether this case is moot, and I would like to refer back to Reece versus Geis, and that the case before this Court now originated in 1969 and Reece versus Geis started I believe in 1972, or possibly 1973, and was decided in June 1973. In that case, we had basically the same issues. We had a justice of the peace who had a statutory fee due him, which was $2.50 on each case or each judgment that he executed on. The court in justice -- in Reece versus Geis ruled that because of this $2.50 fee, it was a pecuniary interest that the JP possessed, and therefore the JP was disqualified from giving a judgment on the case and as a result that judgment that he did give because of this pecuniary interest was void. Now, we contend now that Reece versus Geis does apply to the instant case, and therefore, Warner -- Justice Warner in this case, his judgment as to Patterson is likewise void. Now, we get in to the question of retroactivity. Does Reece in that Patterson started before Reece, does Reece versus Geis apply now to Patterson versus Warner?
William J. Brennan, Jr.: Well, if you’re right, can we decide the question of mootness here, or would we have to vacate? In remand of this three-judge district was a three-judge court wasn’t it?
Philip D. Gaujot: Yes.
William J. Brennan, Jr.: District Court will let them decide whether there’s question of mootness, because under this being a federal case -- by where it’s moot, but we do is wipe the slate clean all the way down. That’s the way it’s done.
Philip D. Gaujot: Yes, Your Honor, I’m not -- quite frankly, I’m not sure what this Court can do -- as to decide whether it is moot or rather remand it to the District Court.
William J. Brennan, Jr.: Well, I must say, I have difficulty in light of your retroactivity question that both of you raised. Knowing how we can determine here if the case is moot.
Philip D. Gaujot: Well, if you let me continue Justice Brennan, Justice Cardozo in answer to whether state decisions are retroactive or not, said and that a state may make a choice for itself between the principle of forward operation and the relation backwards. And I would like to submit that that the West Virginia law is that, and I cite the case of Falconer versus Simmons, it’s not in the brief. 51 West Virginia 172 41 S.E. 193, it’s a 1902 case which says that “It makes every decision of the West Virginia Supreme Court of Appeals retroactive, except for one particular exception.” And of course this case does not fall within that exception.
Warren E. Burger: Well in the first instance, isn’t it primarily the business of West Virginia courts to decide the retroactivity matter anyway?
Philip D. Gaujot: Yes, Your Honor.
Warren E. Burger: And you said they have decided it back in 1902 -- the general preposition.
Philip D. Gaujot: Yes, Your Honor, so therefore -- so what I’m saying is that Reece versus Geis does apply to Patterson. Therefore, the judgment of Patterson or Warner against Patterson is likewise void, and therefore, this Court should not concern itself with the question of whether -- in fact there was a proper hearing below in the justice of the peace courts, or whether the appeal bond is constitutional or not.
Thurgood Marshall: Do you mean that everybody that’s had a judgment against them with the JP court from 1900 to date is entitled to get his money back?
Philip D. Gaujot: As well as I can interpret that case, Your Honor, yes. That’s the way I interpret it. If not that, at least this Court, we could assume that there’s limited retroactivity and that the West Virginia court surely follows the common law or the rules as were reflected and set out in United States versus Schooner Peggy and Link Letter versus Walker. We contend that this case is now moot, and this Court should not have to consider the question of the constitutionality of whether due process was afforded to Mr. Patterson in the justice of the peace court and whether the appeal bond is constitutional.
William O. Douglas: There’s nothing to choose, except so far relates to mootness. All you’re saying is that there is a defense on the merits to this by reason of the Reece case. Controversy still goes on.
Philip D. Gaujot: I don’t understand Justice Douglas, what --
William O. Douglas: Very well, if you don’t understand, it’s too late.[Laughter]
William H. Rehnquist: Well, what if it is retroactive so that you can’t let the execution on this judgment. The controversy still exists that is the --
Philip D. Gaujot: Well, now that’s my next argument in support of mootness. I suggest to this Court that you use the reasoning behind the abstention doctrine. This isn’t an abstention doctrine as such, because we’re not asking this Court to abstain and let the state court rule because in fact the state court has already ruled and under the abstention doctrine, this Court even though it has jurisdiction of cases under federal constitution and federal statute, you will not -- you will avoid making a federal constitutional decision on a federal question when you can leave it to the state to determine. And in this case, the State of West Virginia has determined. So for the reasoning, under the abstention doctrine, even though this isn’t an abstention doctrine and that we are not asking you to abstain, until the Court has ruled. What I’m saying is, our court has already ruled. There’s no reason for this Court to rule.
Speaker: Well, really I suppose what you’re saying is that Geis been decided when the three-judge court got this case. The three-judge court would have determined then and there that the judgment was void. There was no case in that –
Philip D. Gaujot: Yes, Your Honor, that’s exactly what I’m saying.
Speaker: And now you say if we give it to the three-judge court now, they’ll apply Geis.
Philip D. Gaujot: Yes, Your Honor.
Speaker: All the underlying judgment, void and dismiss the suit.
Philip D. Gaujot: That’s right Your Honor. That’s correct.
Warren E. Burger: At least that’s what you would propose to them?
Philip D. Gaujot: Yes, Your Honor. I would suggest also that this would be similarly what happened in the Texas Railroad Commission versus Pullman. And that here, we have Mr. Patterson who has enjoined the enforcement of the judgment of Justice Warner, saying that the judgment denies him rights under the federal law and state law, and that therefore, the justice lacks jurisdiction to make any judgment in the case. And I would assume that this case is very similar to that, and again reiterate that leaves nothing for this Court to decide as regards to what I’m speaking of only to the questions of due process, whether due process was afforded Mr. Patterson in the justice court or whether the appeal bond is constitutional or not. Now to his argument as to whether -- I think the Court may be a little confused now as to what appellant is trying to argue. He is saying this I think basically, I’ll try to simplify some. He’s saying that Patterson was denied a fair hearing in the justice court because Warner had a pecuniary interest, and therefore, he didn’t have a fair hearing, so it’s no hearing at all. So as a result, he has an absolute right to an appeal, and we contend and say that -- we contend that there is no absolute right to appeal and we cite Ortwein versus Schwab and that Ortwein versus Schwab, this Court determined that one did not have an absolute right to appeal from administrative hearing for judicial review. And we say likewise, one does not have an absolute right to appeal from justice court for judicial review. And we could assume that the appeal bond that one pays to appeal from a justice court is very comparable to the fee of $25.00 that one had to pay to appeal from the administrative hearing in Ortwein to a court there.
Thurgood Marshall: Now, I’m seeing again 25 and 300?
Philip D. Gaujot: Pardon?
Thurgood Marshall: You don’t see any difference between $25.00 and $300.00?
Philip D. Gaujot: As far as being a fee. What I’m saying is there’s not an absolute right to an appeal. That’s what I’m saying. As in Ortwein, you don’t have an absolute right to appeal from a JP court --
Thurgood Marshall: I understood his complaint was that it cost him $318.00 or $600.00.
Philip D. Gaujot: Yes, Your Honor, I’m directing my argument to this due process argument now, not to as Equal Protection argument. Now if this Court should determine that the JP did in fact have a pecuniary interest, and therefore, he should’ve disqualified himself and that he didn’t -- his judgment is void. And should you further question whether the appeal bond acts as a bar to access to a court of record then I cite the Kras case for the proposition and rule that one does not have an absolute rule to initial judicial determination of one’s claim. And again, I would compare the appeal bond to that of the $50.00 filing fee that one had to pay in Kras. Another argument that the appellant uses is that well, here we have Mr. Patterson who is forced into a JP court and supposedly had a hearing, but yet it wasn’t a fair hearing, so it's no hearing, but to appeal, you’re making the man pay a double bond. Well, if the Court is to believe that argument, then as has been mentioned earlier, any amount, any fee of any amount would stand in the way not only appeal bond, but you’d have to give an absolute right for everyone to appeal, and therefore, it would necessitate the overruling yourselves and Ortwein v. Schwab, and United States v. Kras, and really what you would be doing is extending the rule (Inaudible).
William H. Rehnquist: Do Mr. Justice Stewart’s questions to Mr. Higinbotham, Mr. Gaujot, suggest any additional ground of mootness to you that perhaps the remedy which he sought if it isn’t going to avail his client anything, perhaps there isn’t any real case or controversy here, because of the pauper status of the petitioner? In other words, if it doesn’t facilitate this man’s appeal in order to get the double bond provision stricken down and have a single bond substituted for it, is that a real life case and controversy between the JP and Mr. Patterson?
Philip D. Gaujot: Well, what we have here, Your Honor, is a situation where one has to post a double bond, but that is to protect the judgment that the plaintiff had received in the justice court. But if the defendant appeals and wants to stay the execution then that’s where the double bond comes in, as to protect. For instance, if one wants to appeal from the justice court in West Virginia, you can appeal by only posting a bond equal the amount of the judgment. It’s only the execution that one is denied --
William H. Rehnquist: I’d read it differently. You say that it’s just we want to supersede that you have the double bond, or stay the execution?
Philip D. Gaujot: Yes, Your Honor, that’s correct. In other words, if the JP rules against the defendant and the JP court, and if the defendant wants to appeal to a court of record, all he has to post is $300.00 to cover the judgment plus cost, but if he wants to stay, then he has to post double the bond.
Thurgood Marshall: What’s the rule of appeal from the court of general jurisdiction?
Philip D. Gaujot: Well, there was also a statement made that his Court is concurrent --
Thurgood Marshall: The court of general jurisdiction to the Supreme Court of West Virginia, how much is the bond at the previous bond?
Philip D. Gaujot: That’s left to the discretion of the court.
Warren E. Burger: Mr. Gaujot.
Philip D. Gaujot: Yes, Your Honor.
Speaker: And how much is it usually?
Philip D. Gaujot: I think there is important -- it’s generally the amount of the judgment.
Thurgood Marshall: So then, there is still a difference between the two?
Philip D. Gaujot: Well, there’s been some specific question concerning concurrent jurisdiction, and in fact, it’s not concurrent jurisdiction. For instance, you can not get in the Circuit Court, the first court of record in West Virginia, if you’re seeking anything less than $50.00. You don’t’ have a right. You have to go to the justice of the peace court. Also consider this, here you have -- you can’t consider only $300.00, a justice of the peace can award $15.00. Now, if he awards $15.00, the double bond isn’t going to be sufficient, because automatically you have got interest, cost, and you’ve got this $10.00 fee that goes to the Circuit Court which has to come out of the $15.00 over the original judgment.
Thurgood Marshall: But here we have $300.00. This case is $300.00, it’s not $15.00, its $300.00 involved to protect $28.00, am I right?
Philip D. Gaujot: That is Your Honor, if the higher court does not say that -- if the higher court does have the opportunity -- if damages occurred that higher court can assess for damages that would come out of the additional $300.00. As well as other cost --
Thurgood Marshall: The higher court can assess damages?
Warren E. Burger: Or do you mean cost?
Philip D. Gaujot: Cost, excuse me, Your Honor.
Thurgood Marshall: I thought that the cost was $10.00?
Philip D. Gaujot: Well, there’s a whole list of costs Your Honor. For instance, there’s a $5.00 fee for bringing the action. There’s $2.00 fee for service. Of course there’s $1.00 fee for the bond. You have a $1.50 for summoning and return of the jury.
Thurgood Marshall: Which adds up to how much? Less than $300.00?
Philip D. Gaujot: Yes, Your Honor, it does.
Thurgood Marshall: So, you’re not really arguing that the double bond is to protect anybody other than whom?
Philip D. Gaujot: The judgment -- the plaintiff who received the judgment --
Thurgood Marshall: Well, the plaintiff can’t get that $300.00.
Philip D. Gaujot: That’s right, Your Honor.
Thurgood Marshall: It’s not going to change all.
Philip D. Gaujot: That’s right Your Honor. The --
Thurgood Marshall: So the only purpose of the $300.00 is to prevent people from appealing or discourage them?
Philip D. Gaujot: No, Your Honor, again --
Thurgood Marshall: Well, what is the other reason?
Philip D. Gaujot: Well, we must consider also --
Thurgood Marshall: That State of West Virginia isn’t making a living on this, I hope.
Philip D. Gaujot: If the defendant who posts a $300.00 bond -- I mean a $600.00 bond in this instance. Should he lose on appeal, if he only loses the $300.00 plus cost, interest, etcetera.
Thurgood Marshall: And the use of the $300.00 will consider at the time the case is spent.
Speaker: Yes, but so would I.[Laughter Attempt]
Philip D. Gaujot: Well, Your Honor, as I stated before, you can’t I don’t think, concern yourselves strictly with cases that involve $300.00. As I stated earlier, many times this is a court of limited jurisdiction and many times people come in to this court with $50.00 for instance. They ask for judgment for $50.00. In that case, it would be double the amount, and it’s not too hard to believe that cost will amount to $50.00 that’s what I’m trying to say. Consider also that the justice of the peace is a layman, and possibly the legislature felt that they should try and setting the double bond, would setup a rule of thumb and that the JP, he is a layman, should not have to exercise discretion and decide, well what -- how much will I assess to “A” for his appeal to a court of record, and how much should I assess “B?” It’s just a rule of thumb.
Thurgood Marshall: Assess that $2.50 though, doesn’t it?
Philip D. Gaujot: Yes, Your Honor.[Laughter]
Warren E. Burger: Could the -- under the West Virginia Constitution, could the legislature bar any appeal in any case if it’s less than $300.00, or $200.00, or $100.00?
Philip D. Gaujot: Could they bar appeal?
Warren E. Burger: Yes.
Philip D. Gaujot: No, Your Honor.
Warren E. Burger: They could not?
Philip D. Gaujot: No.
Warren E. Burger: What’s the provision of the constitution that requires that an appeal be allowed in every case?
Philip D. Gaujot: Oh! Excuse me, what’s in the constitution is that one has the right to appeal, but as set out by law, and of course our legislature decided that the double bond is what is needed. Now again, I like to -- I wish to reiterate that to appeal the defendant in the justice of the peace court doesn’t have to post a double bond. All he has to do is post, Justice Marshall. All he has to do is post a bond that equals the judgment that just covers the judgment. So what we’re concerned ourselves here now, does he have a right, an absolute right to an execution? And of course it’s our contention that he does not.
Warren E. Burger: Thank you gentlemen. The case is submitted.