Earl Warren: Number 581, William W. Burns, Petitioner, versus State of Ohio. Mrs. Washington.
Helen G. Washington: May it please the Court, my argument will be very brief. As in Griffin against Illinois and Eskridge against Washington State Prison Board recently decided by this Court, this case concerns an indigent convicted defendant who was deprived of the appeal rights given him by state law, solely because he was too poor to pay one of the costs of appeal, here the docket fee demanded in advance for docketing his appeal papers. As in the Griffin and Eskridge case the only question is whether the Due Process and Equal Protection clauses of the Fourteenth Amendment prohibited the state from denying appeal rights given to others, to one who does not have the money to pay the cost. The details giving rise to this question maybe quickly stated. The petitioner was convicted by a jury of a felony in a trial court in Ohio. He was sentenced to life imprisonment in the state penitentiary. Upon an appeal to the Intermediate Court of Appeals, his conviction was affirmed. Ohio Law gave him further appeal rights in the Supreme Court of Ohio. Under the law there is an appeal as of right if a constitutional question is involved. In other cases one whose conviction of a felony has been affirmed by the Court of Appeals, may move the Supreme Court of Ohio for leave to appeal and will have leave granted if good cause for the appeal is shown. The state statute and the rules of the Supreme Court provide, however, for the payment of the docket fee of $20 before the appeal papers will be docketed. This petitioner who was in the penitentiary without the assistant of counsel prepared a motion for leave to appeal, a motion for leave to proceed in forma pauperis and then affidavit of poverty. He transmitted these papers to the Supreme Court of Ohio together with a copy of the notice of appeal filed in the Court of Appeal. The Supreme Court, acting through its clerk, immediately returned his papers to him, with the explanation that the docket fee required by statute and the Court's rule had not have been paid and that an appeal in forma pauperis was not an acceptable substitute. Thus the Supreme Court of Ohio construed the statute and its rules as denying access through the Court to those who were unable to pay the fee, although everyone else could have his appeal docketed. Under the Griffin and Eskridge decision such a discriminatory interpretation of the statute cannot stand. Since Ohio has a general policy of allowing appeals, or appeal rights in the Supreme Court, it under those decisions cannot consistently with the Fourteenth Amendment deny them to one who does not have the money to pay the cost. I don't think I need to elaborate anymore on that point. We rest our case on the decisions in the Griffin and Eskridge cases. On brief the state advances only one reason why those cases should not apply here. The state says that the petitioner has had one appeal here, his conviction was affirmed and that he is not entitled to anything more, that when Ohio does give a second appeal it can establish any conditions for it that it sees fit. I think that this is a misreading of Griffin. The teaching of that case certainly is that if a state does grant appeal, it should grant it to rich and poor alike, that would be regardless of the level at which appeal was, regardless of whether it was the first, second or tenth appeal. And we submit that this case could return to the Supreme Court of Ohio with appropriate instructions to give petitioner his rights.
Earl Warren: Mr. Vance.
William M. Vance: Mr. Chief Justice and justices, please the Court. I think the whole question before this Court here is whether or not the effect of Griffin should be extended because in Griffin under the statues of the State of Illinois, felony cases are appealed only and directly to the Supreme Court of Illinois. Misdemeanor cases are appealed to the appellate court. Before our case can be appealed or considered on appeal by the Supreme Court of the State of Illinois, they had to have a transcript. Griffin had no transcript and he said he had no money to buy one, therefore, his case was heard in lower court one appeal. In Ohio it is different. Our primary appellate court is the Court of Appeals, a three-judge court of which we have ten in the state. In this case Burns was convicted in the trial court. He had self retained counsel. He was not a poor man. He appealed to the Court of Appeals. He had his transcript. He got a full appellate review before the Court of Appeals and his case was affirmed. Now at that stage, he filed a notice of appeal to the Supreme Court of Ohio. He did the necessary administrative step two of notifying the prosecuting attorney before he filed his application for an appeal. At that time as I say he apparently was not indigent, he had his own self retained counsel. He went out and he had his review. He dropped and abandoned, at that time that contemplated appeal to the Supreme Court of Ohio. It was not until years later after Griffin, the Griffin decision had been announced and after he had spent those intervening years in the penitentiary where whatever resources that he might have had when he first went in were undoubtedly dissipated and he was in truth and in fact a pauper, that he then goes and without taking that necessary step of notifying the prosecuting the attorney, he files his notice of appeal in the Court of Appeals and one in the Supreme Court of Ohio and tries to do it on a pauperis affidavit and they send back and say it takes $20 to get here in this Court on that kind of a motion.
Felix Frankfurter: What was the date of conviction?
William M. Vance: The date of the conviction, if it please the Court, was in 1953. It was four years later that he attempted this second attempt to appeal, the first one having been abandoned.
Earl Warren: If he had the $20 and had paid it to the Court, would he have been properly before the Supreme Court?
William M. Vance: He would not because he had not, before doing that, notified the prosecuting attorney. I have set forth in our brief --
Earl Warren: Is that problem construed that way by your Supreme Court?
William M. Vance: I don't know, if it please the Court, whether that question has ever been raised, because I think that just routinely the prosecuting attorney is notified, before they file the motion.
Earl Warren: Do they have to file notice before they appeal to your Court of Appeal?
William M. Vance: No.
Earl Warren: And then another one to -- before he appeals to the Supreme Court.
William M. Vance: That is correct.
Earl Warren: They have to file both times?
William M. Vance: Yes, with the prosecution.
Earl Warren: Alright. That is your procedure.
William M. Vance: That is correct.
Felix Frankfurter: You have to get permission don't you?
William M. Vance: Get permission of the prosecuting attorney?
Felix Frankfurter: No, no, no, the Supreme Court or --
William M. Vance: Oh yes, what he attempted to do, file is nothing but a motion for leave –
Felix Frankfurter: Yes.
William M. Vance: -- a motion for leave, and there is no matter of right involved in this case at all.
Earl Warren: But what I'm -- my point is does he have to -- suppose he had the money, he has already filed one with notice to the prosecuting attorney under his original appeal, now when he seeks to go to the Supreme Court, if he had $20 and paid it, would he have to file another notice with the prosecuting attorney?
William M. Vance: Right, I take it from the statute if Your Honor please he would, because that reason is as follows.
Earl Warren: Is that the practice in your state?
William M. Vance: Yes it is a practice. It says that before the filing of a notice of appeal or a motion for leave, for leave must first be obtained a copy thereof must be served upon the prosecuting attorney.
Earl Warren: But did he serve it on the prosecuting attorney?
William M. Vance: Not in this latest attempt, he did on the first attempt when he abandoned, which he abandoned.
William J. Brennan, Jr.: (Inaudible)
William M. Vance: That is correct. He filed with the --
William J. Brennan, Jr.: And the court did not consider his application.
William M. Vance: No.
William J. Brennan, Jr.: Never got beyond the clerk?
William M. Vance: Never got beyond the clerk's office.
Charles E. Whittaker: (Inaudible)
William M. Vance: Not in the 1957 attempt, no, although required by statute, he had not done that and hasn't done so yet. But back in 1950 or 1951 when he filed his motion for leave to appeal in the Supreme Court of Ohio, he had complied with the statute and given a copy of it to the prosecuting attorney, and then he went no further with it, he just dropped it.
William J. Brennan, Jr.: But Mr. Vance this case is not before us (Inaudible) in Ohio that indicates that his failure to serve this notice had anything whatever to do.
William M. Vance: No that's the peculiar thing. It's merely here on a letter from the clerk of the court.
William J. Brennan, Jr.: As far as we know, all that we have is that it was not accepted in the Supreme Court because it was not accompanied by payment of $20.
William M. Vance: By $20, that's it.
William J. Brennan, Jr.: Well then what significance can we attach to if it's the fact, I assume it must be, that he didn't serve the required statutory notice on the prosecutor?
William M. Vance: Well I think that's significance in this, that even if he had sent his $20 he wouldn't have been properly before the Court.
William J. Brennan, Jr.: Well, what significance can we attach to it? There is nothing before us in this case that anything whatever to do with his failure to be heard in the Supreme Court.
William M. Vance: I think You Honor is correct.
Charles E. Whittaker: (Inaudible)
William M. Vance: I think he probably must because there is nothing except for my statement in the record, to indicate there was that debate, it's in my brief.
Charles E. Whittaker: The man had no lawyers.
William M. Vance: He had no lawyers, at his time, in 1957.
Charles E. Whittaker: (Inaudible)
William M. Vance: That is correct.
Felix Frankfurter: Now is there -- will an appeal lie at any time after the Court of Appeals make an adjunct decision?
William M. Vance: Yes we have no time limitation for appeal to the Supreme Court.
Felix Frankfurter: From the Court of Appeals?
William M. Vance: That's correct. Now --
Earl Warren: Well then why wouldn't the first notice be sufficient?
William M. Vance: I raised that question in my own mind frankly, whether or not the effect of that first notice would carry over, but the statute says that when a motion for leave to file is -- a motion for leave to appeal is filed, a copy of it shall served first upon the prosecuting attorney and that this was not a proceeding on the notice filed back in 1950, but it was an entirely new notice and an entirely new proceeding.
Charles E. Whittaker: (Inaudible)
William M. Vance: That is correct and I can say in all candor to this Court that, that was not why the clerk returned the paper. He returned the paper because the rule of the court says that he will accept no filing except when the $20 docketing fee is paid, now that's squarely before the court.
Felix Frankfurter: He says that, he says that, the clerk says that what you just (Inaudible)
William M. Vance: Yes.
Felix Frankfurter: But was there, clear me up, was there after the Court of Appeals for the first appellate division turned it down (Inaudible), did he then file a notice to the Supreme Court?
William M. Vance: He did and also served to prosecuting attorney.
Felix Frankfurter: (Inaudible)
William M. Vance: Yeah.
Felix Frankfurter: And anything after that?
Tom C. Clark: What happened to that?
William M. Vance: He abandoned.
Felix Frankfurter: When you say he abandoned, formally or how do you express that?
William M. Vance: There was nothing ever -- never filed, there was no transcript brought up for any thing. Actually he brought about that time a mandamus action to compel the Court to proceed on other indictments that were pending against him and in the litigation of that he was defeated by the appellate court of Hamilton County, and then he simply went to jail and proceeded no further with any appeal.
Felix Frankfurter: Well he is now worse off than having file something (Inaudible) than if he hadn't done anything and began to file (Inaudible)
William M. Vance: That is quite true, that's quite true.
Felix Frankfurter: So that in view of your actual statute of limitation anybody has been convicted, no matter how far back, the conviction was reviewed in your Courts of Appeals and your appellate courts, it can now file a notice of appeal.
William M. Vance: Yes, and that that is of course what makes it such tremendous importance in the State of Ohio. We have some 16,000 felons in our penal institutions and literally thousands of them would come within that category, where if griffin is extended, to say it that covers not only the furnishing of a transcript, but the payment of this minimum fee of $20, we are faced with simply thousands and thousands of belated appeals, based upon --
Felix Frankfurter: Is this an estimate of yours or have any statistical basis.
William M. Vance: I have no statistical basis.
Felix Frankfurter: Therefore the question is how many convictions affirmed in Appellate, your intermediate Appellate court for which review was sought, no reason given and no reason was sought, proceedings cannot be brought saying he didn't -- we couldn't because he didn't have $20. But you just say that's your guess there --
William M. Vance: That is just my guess, yes, I'm rather --
Earl Warren: Well the same thing was said about Griffin when it was here, but I haven't seen that happen in Illinois or the other states --
Felix Frankfurter: Not in Illinois but –
William M. Vance: Of course we think there is a tremendous difference a transcript of testimony which run in to the hundreds of dollars and a $20 filing fee. Now Griffin draws this --
Tom C. Clark: (Inaudible)
William M. Vance: Well it's a lot easy to get $20, than it is to get $2,000 to get a transcript, that's the whole point.
Tom C. Clark: Did he have a right to -- could he appeal as a matter right?
William M. Vance: There is no constitution question. He could appeal as a matter of right to the Court of Appeals and did.
Tom C. Clark: Well what about from there on?
William M. Vance: No he -- unless is there a constitutional question involved, then he can only appeal by leave of court, in a felony case.
Tom C. Clark: Did he have any constitutional question?
William M. Vance: There were none involved in his case.
Felix Frankfurter: But what's that phrase that you use in Ohio in denying these leaves of appeals, a regular phrase about no constitutional --
William M. Vance: No debatable constitutional rights involved.
Speaker: (Inaudible)
William M. Vance: I don't think they did Your Honor.
Speaker: There is no record.
William M. Vance: No. I simply --
Speaker: (Inaudible)
William M. Vance: I wasn't involved in that case at that time, I wasn't even in the country at that time, but Mr. Schoettmer who will share my time is the Assistant Prosecuting Attorney and he is thoroughly familiar with the factual background of the case.
Felix Frankfurter: Is the record here?
William M. Vance: The record is not here accept that --
Felix Frankfurter: (Inaudible) you said pleas to appeal will only be granted if there is a constitutional question, is that right?
William M. Vance: Oh no, no appeal is a matter of right, if there is a constitutional question involved.
Felix Frankfurter: Oh, in the Supreme Court?
William M. Vance: Yes same thing.
Felix Frankfurter: And the other --
William M. Vance: But in the Court of Appeal you can appeal without leave.
Felix Frankfurter: No, I'm not asking, I want to know whether on what grounds, if may I ask this, on what grounds can you ask the Supreme Court to review the affirmance of a conviction in the appellate court, on which ground?
William M. Vance: On any ground, even the weight of the evidence. If the -- on the hearing of their motion for leave, they are convinced that there was some injustice done here in the --
Felix Frankfurter: Well so that insofar as anybody knows, if he had his $20, he said he could have been heard in the Supreme Court in that case?
William M. Vance: It's my opinion --
Felix Frankfurter: So far as anybody knows?
William M. Vance: By the leave of the Court.
Felix Frankfurter: By the leave of the Court.
William M. Vance: That is correct.
Tom C. Clark: Did he file (Inaudible) though?
William M. Vance: In the Court of Appeals, yes.
Tom C. Clark: You mean in the Supreme Court.
William M. Vance: No they do accept, it lose --
Felix Frankfurter: Was that in -- is there any decision of the Supreme Court or this merely a what shall I say, careful clerk or clerk (Inaudible) $20 is there any decision of the Supreme Court of Ohio that if in fact an application is made for the Supreme Court to take the case, with an affidavit that he is a pauper, he is indigent, is there a decision of the Supreme Court of Ohio, that they (Inaudible) but they can't take it.
William M. Vance: No --
Felix Frankfurter: The statute forbid it, does the statute forbid it?
William M. Vance: The statute says that the clerk shall not accept a filing until the following fee is paid.
Felix Frankfurter: But does it say anything about -- is the statute -- the statute hasn't been construed?
William M. Vance: Construed not in a case, but by the rules of the Court. The Court has adopted a rule, yes sir.
Felix Frankfurter: By the rule of the Court.
William M. Vance: Yes.
Felix Frankfurter: And does that rule exclude application to the Court to be relieved from the operation of the rule because of poverty?
William M. Vance: Not specifically. It simply says that the no case shall be docketed unless it is the -- that --
Felix Frankfurter: Well that, we have such a rule too you're your application (Inaudible)
William M. Vance: Yes.
Earl Warren: Well, Mr. Vance the clerk in his letter said this will served to acknowledge receipt of your motion for leave to proceed in forma pauperis motion for leave to appeal and notice of appeal, we must advice that the Supreme Court has determined on numerous occasions that the docket fee required by Section 1512 of the General Code of Ohio and the rules of practice take precedence over any other statute which may allow a pauperis affidavit to be filed in lieu of a docket fee. So either the clerk is wrong or your court has construed it to mean that there is no access to that court at all unless the $20 fee is paid.
William M. Vance: What Mr. Wallace, the clerk means there, there has been no decided cases determining it, but the justices of the court under whom the clerk operates has told him on many occasions not to take anything unless he gets the $20.
Earl Warren: He doesn't say that.
William M. Vance: No, he says the court has determined, but it --
Earl Warren: The Supreme Court has determined on numerous occasions --
Felix Frankfurter: Why don't you --
William M. Vance: Enjoin administrative determinations.
Felix Frankfurter: May I ask you (Inaudible) a good reason, why didn't you say there is no judgment of the Supreme Court of Ohio before us, the clerk isn't the court?
William M. Vance: That's what we are contending, there is no judgment of the Supreme Court of Ohio for this Court to review.
Felix Frankfurter: It says on writ of certiorari that the Supreme Court of Ohio --
William M. Vance: Yeah.
Felix Frankfurter: That implies the Supreme Court of Ohio did something, either affirmatively or negatively which is the record of the Court, there is no record of the Court.
William M. Vance: You have nothing here but a letter from a clerk.
Felix Frankfurter: (Inaudible) from the clerk?
Tom C. Clark: How can he get one unless the clerk (Inaudible)
William M. Vance: Yeah that's quite true.
Hugo L. Black: Now may I ask you this question --
Felix Frankfurter: Well he can go to the Supreme Court and ask mandamus or something?
Hugo L. Black: (Inaudible) but let me ask you this, in his motion for leave to appeal, you say that if you raise a constitutional question in this appeal, he had a right to appeal as a matter of right --
William M. Vance: If the face of the record shows that there is a constitutional record.
Hugo L. Black: His motion has not been denied, has there? I mean the facts (Inaudible) have not been denied and he alleges that in his motion for leave to appeal, the judgment against him was rendered upon error, prejudicial conflicting with his constitutional guarantees with the Fourteenth Amendment of the Constitution of the United States, he alleges that.
William M. Vance: Yes, he alleges it.
Hugo L. Black: That's the ground on which he sought the appeal.
William M. Vance: That is correct.
Hugo L. Black: And if there is a genuine constitutional question as well, he can appeal as a matter of right and not merely by leave?
William M. Vance: Right.
Felix Frankfurter: Is there -- have you (Inaudible) -- has your Supreme Court (Inaudible) jurisdiction of mandamus?
William M. Vance: Yes, the Supreme Court has. As a matter of fact all of our courts --
Felix Frankfurter: We haven't yet got a letter from the clerk saying I would accept your petition for mandamus, have we?
William M. Vance: No, no, and there has been no effort to --
Felix Frankfurter: Not constant, I mean (Inaudible), not so long ago was a case that this Court, but not this Court, but a case where the question was what the power of the Supreme Court (Inaudible) was and it was argued them that statute is clear and every thing else and Chief Judge McGruder wrote for that court that I believe that when I told so, but not before. How do we know what the Supreme Court of California may do (Inaudible), does anybody know? Are you prepared to tell us?
William M. Vance: I am not.
Felix Frankfurter: Is Washington prepared to tell us?
Hugo L. Black: Are you prepared to tell us whether this prisoner can go up and see the Supreme Court personally?
William M. Vance: If he has a case pending, I handle habeas corpus cases and I have had many prisoners who come over and go before a Supreme Court and act as their own counsel, they are always brought over and make a personal appearance.
Hugo L. Black: But this man leaves the jail and goes to see the Supreme Court --
William M. Vance: They have a guard with them, but they do an admirable job of arguing their own case sometimes.
Felix Frankfurter: Inaudible) he was able to file the document with the Supreme Court of the United States. I know (Inaudible) and other courts are, but perhaps you can do the same even in Ohio.
Earl Warren: Well Mr. Vance --
William M. Vance: (Inaudible)
Felix Frankfurter: No he didn't, he just (Inaudible)
William M. Vance: Wyoming (Inaudible)
Earl Warren: Mr. Vance I understood you to say that its been your contention all along that this was not -- he was not appealing from the judge on the Court, but this was only a letter from the clerk, do you raise that in your brief?
William M. Vance: We do not.
Earl Warren: Did you raise at any place along the line?
William M. Vance: No.
Earl Warren: Well then --
Felix Frankfurter: We instead have a judgment.
Earl Warren: It's a little late now.
William M. Vance: Yes it is, I didn't raise it. The Court raised it and asked me that I (Inaudible) thought about it.
Earl Warren: Yes.
Felix Frankfurter: You can't foreclose people saying there is no judgment because you didn't raise it. Is there a judgment?
William M. Vance: No there is only a letter from clerk.
Felix Frankfurter: Fine.
William M. Vance: We feel here that the due process, equal protection is not involved, the same rule applies in this man as to all other people who file in the Supreme Court of Ohio. He had his appeal, he had his transcript, and the Griffin decision is rather a black and white affair, it says the rich here and the poor here, actually we as all know life is great mass of grays, with all degrees of fluence in it. That here is a man who has $100 saved up, a hard working man who has $100 to pay the matriculation fee of his son, who wants to go to college and he gets into some trouble and he wants to appeal his case and he has to reach down and take this $100 to get in. But here is the other fellow on the other hand who stole a $1,000 and blew it up in one wild night of entertainment, so he is broke and he gets into that fix and the taxpayers have to let him in for free and furnish him with a lawyer and give him a transcript and let him file a (Inaudible), where the man with a, just a modicum of money has to expend that until he too is a pauper.
Earl Warren: Well Mr. Vance let me ask you this please, suppose this was a constitutional case and nothing else in it, and the defendant had no money, made his affidavit such as he did here, could he file it, could he document it?
William M. Vance: He could not ender the existing rules of the Court, with this exception and we -- I was afraid that question might be asked.
Earl Warren: Why is that (Inaudible)[Laughter]
William M. Vance: And I thought over the lunch period what I would say to you and I do believe that this is it, that the rule making power is the Court itself and if they can make rules they can modify rules and I think in a hard situation where they were caught on the horns of a dilemma, the Court has the plenary power to say that although this is not customary with this Court, in this case we want to hear in this case and you can come in without paying this $20.
Earl Warren: Alright now could they do that just as well if it wasn't a constitutional case, but --
William M. Vance: I think they could, I think it's within the plenary powers of the Court.
Earl Warren: To get back to Justice Black's question, how could a man avail himself of that, how could he get into court to have that determined by the Supreme Court if their clerk wouldn't file because he didn't have $20, that's --
William M. Vance: And the answer is that he couldn't, unless the Court through the communications between the clerk and the Court became aware that there was a crucial matter that they wanted to hear.
Earl Warren: I see.
Felix Frankfurter: This court --
Speaker: (Inaudible)
William M. Vance: Not to my knowledge.
Felix Frankfurter: Mr. Wallace gets many number of letters addressed to the court --
William M. Vance: Yes.
Felix Frankfurter: So then treat it as though they were form of certiorari.
William M. Vance: Yes.
Felix Frankfurter: Clerks are not (Inaudible) court.
Earl Warren: Well Mr. Vance you have answered Justice Harlan that as far as you knew no one had ever tried to do that, what was the clerk referring to when he said on numerous occasions the court has held that they cannot do that?
William M. Vance: Well --
Earl Warren: Now there must have been somebody --
William M. Vance: Yes it's a series of letters, but what I thought the justice meant was has anyone got himself into a position where the Court has overridden its own rule.
Earl Warren: Oh I see.
William M. Vance: As I suggest it might have; Mr. Schoettmer of the prosecuting attorney's office.
Harry C. Schoettmer: May I please the Court.
Earl Warren: Mr. Schoettmer.
Harry C. Schoettmer: Counsel suggested that I knew this case personally as of the trial level and however that's just not so, I did not try the case, it's an assistant tried it who is long gone, however it fell upon my shoulders to take it after he left, I have to bury his dead, even though this man is obviously still alive. Justice Frankfurter I would like to say that your position here, that this is a letter from a clerk and not a judgment is the correct position that this man should go back and do something else and get a judgment first and when I first came into Burns' case in this appeal I had a very similar thought, however, I think we have to concede this fact that this letter from the clerk is in reality and in effect the judgment of the Court. In other words it would be impossible in Ohio for a citizen to file a mandamus action in the Supreme Court without paying $20. It is also impossible and there is a court decision on this in the Wanamaker case, Wanamaker versus Miller that counsel for the petitioner has cited, that a petitioner or a plaintiff could not file a mandamus action against the clerk of the Supreme Court in a Court of Appeals. Even though be could file it in forma pauperis in the Court of Appeals it would not lie against the clerk of the Supreme Court. The Wannamaker case spells out fairly firmly. So, admittedly this is --
William O. Douglas: What is the citation for the Wannamaker?
Harry C. Schoettmer: Your Honor --
William O. Douglas: It seems to be in the briefs.
Harry C. Schoettmer: 160, it's on page ten of petitioner's brief in the note, 164 Ohio State 174. Here is the case in question, and I think we have to face up to it. As Your Honor pointed out this is a unique case, we have no record to go back to, we have no law as such except the Griffin, there is no long line of thought on this issue, but I think we can say this, that in the first instance we should concede therefore that the letter of the clerk of the Supreme Court is in effect the judgment of the Ohio Supreme Court, and I say that because in my interpretation of Wannamaker case, there were certain -- there was this mandamus action brought against the clerk of the Supreme Court and the Supreme Court members all stepped down and Court of Appeals members stepped up and made the decision in the Wannamaker case.
William J. Brennan, Jr.: May I ask the fact, the fact you are telling us that Ohio concedes for the purpose of this case, this Court may treat the letter as the judgment of the Supreme Court of Ohio.
Harry C. Schoettmer: I think in effect in the law of the Supreme Court of Ohio that that has to be accepted Your Honor, even though we would love --
Felix Frankfurter: That is not binding -- I want to ask -- that is binding on us. We have held again and again what the state court thinks of a judgment is not in our view necessarily of a judgment.
Harry C. Schoettmer: Well, it is a unique position for that reason. Our second point that I think we should concede here in this Burns case is it without the payment of $20 by Burns that no papers could be filed in the Supreme Court and therefore he could not file under the law his motion for leave to appeal. Now Your Honor you mentioned before, so how he could possibly get into court? Suppose the Supreme Court wanted to hear a case that was in the Court of Appeals, and how could it get to the court? Has there ever been a circumstance where the Supreme Court has ordered a case that had been heard in the Court of Appeals into its court? That if Ohio does have that procedure, the Supreme Court can order a decision of the Court of Appeals certified to it. At this stage of our history in Ohio we have not had the position in such a circumstance that the party could not pay the $20. Without question in my opinion, if that did happen, if that were true in Burns, without question if the Supreme Court said we want to hear that case from a first district appellate court bring it up here, if Burns comes in and says well Your Honor I don't have $20, I am confident that the Supreme Court of Ohio would say we'll waive the $20 without any question in my mind that the Supreme Court would not (Inaudible) its own order because of its rule of $20.
Earl Warren: That wasn't exactly the question I ask. I assumed of course that the Court could waive its own rule if it wanted to do it, but my question was, were there any cases where the defendant was the one who wanted to have a hearing in the Supreme Court and where the Supreme Court gave him that relief even though he could not pay the $20.
Harry C. Schoettmer: Not that I know of.
Earl Warren: Yes well that's my only question. I can see the other very, very plainly, but this a little different, you must --
Harry C. Schoettmer: On that question, but this just establishes our point that much harder and that is this. In the light of the concessions that we have made here, these two points, we feel that and we request that it be conceded that a court, the Supreme Court of Ohio, this Court, any court has a right to determine the conditions precedent to the procedure to be followed in perfecting an appeal to that court, as long as they are reasonable. Now when they are unreasonable, when they are completely out of hand without question, the Court maybe infringing on somebody's rights, but as long as these conditions precedent are reasonable, we feel that without question any court can say what a man has to do in order to perfect an appeal to that court, why?
Earl Warren: Even though it denies to an indigent person a right that a person with money could have?
Harry C. Schoettmer: You Honor I don't know why it's so necessary to say that money is such a separate and distinct type of condition precedent to any other type of condition that might be put forth. Any number of things a court can say that it has to be done by the defendant or by the appellant in order to get in. Now why we should select money as some significant or extra important sensitive condition I just don't understand that.
Felix Frankfurter: What discrimination have you in mind in which you can classify the granting and the not granting, has the element of time within which you must file it?
Harry C. Schoettmer: That's one Your Honor, no this is another.
Felix Frankfurter: (Inaudible)
Harry C. Schoettmer: Counsel mentioned notice, now let's assume that --
Felix Frankfurter: What kind of a distinction is there between -- is there discrimination in any sense of that meaning, that one fellow you must give notice as against the fellow who didn't have to give notice, is that it?
Harry C. Schoettmer: That's right and if one does not, then he doesn't get --
Felix Frankfurter: Is that discrimination in any invidious or hurtful sense?
Harry C. Schoettmer: Well, I don't think it's invidious or hurtful and I suggest that to Your Honor in the light of my discussion with the Chief Justice in that, in the history of Ohio we've never had that circumstance develop in an appeal, up to this time, up to this man.
Felix Frankfurter: But you didn't have that because you didn't have the Griffin case until recently.
Harry C. Schoettmer: Well --
Felix Frankfurter: The Griffin case didn't make a distinction. For my point of view it's least fiction to say that was the law all long, it wasn't, it was made so in Griffin.
Harry C. Schoettmer: Well, a pauper, what is a pauper as such Your Honor, I know you have -- this Court has declared to what is it, but even here, even in this Court, when you allowed a man to file in a pauper (Inaudible), is he a true pauper? A true pauper I suggest to this Court without aid without assistance of some kind cannot get into this Court, because you demand of course that he file some written, typewritten pleading. He must have something here must he not?
Speaker: (Inaudible)
Harry C. Schoettmer: No. But every convict in Ohio, I suggest has money.
Earl Warren: Every what?
Harry C. Schoettmer: Every convict in Ohio has money.
Earl Warren: Do you pay him for work in Ohio?
Harry C. Schoettmer: We do.
Earl Warren: What, how much per day? How many days would he have to work to earn $20?
Harry C. Schoettmer: I would say about three months.
Earl Warren: Three months?
Harry C. Schoettmer: He gets about -- a single man in Ohio, this is Revised Code 514516, a single person who is a convict in Ohio gets $0.04 an hour.
Earl Warren: You mean --
Harry C. Schoettmer: Nine hour day.
Felix Frankfurter: Automatically?
Harry C. Schoettmer: Automatically, that's by statute.
Felix Frankfurter: But not -- he doesn't get anything for extra -- you haven't got occupational labors for --
Harry C. Schoettmer: No we do not Your Honor, we do not. But if he has --
Earl Warren: But I supposedly if he had money the warden would know it, wouldn't he?
Harry C. Schoettmer: Without question, the warden has to account to it.
Earl Warren: You make no question, you raise no question as to whether he is a pauper or not in your papers, as I read them, as a fact I thought Mr. Vance conceded it, said he is wholly without funds now.
Harry C. Schoettmer: The problem -- all right sorry Your Honor, the problem comes out is who has to determine he is a pauper. He signs an affidavit, and I'm sure the law is fairly general concerning men with these criminal records, should we believe them right off, should the state go out and examine what his accounts are --
Felix Frankfurter: (Inaudible) very different question, that question comes up all the time in the federal court, and even in this Court. We have applications here asking for relief (Inaudible) and it has (Inaudible) but that isn't the problem in this case is it? Your problem is what Mr. Justice Harlan suggested, that the instances in which make men really want to appeal to your Supreme Court for another review, haven't got the necessary $20, it's so insignificant, so unreal a limitation upon the power of getting hearing from that Court, that the legislature or the judiciary has the right to make that decision. That's what this case turns on?
Harry C. Schoettmer: That's right. Now the question is if a man has an honest appeal, can he somewhere sometime in his course of conduct after his appeal by the appellant court, get $20? We maintain that this $20, if you please as set forth by the Court, is one of those reasons, one of those manners, one of those means that the Court uses to stop frivolous appeals, to stop men who were just -- fought the Court to come in and talk to it.
Earl Warren: Well, I didn't know, I didn't know that you had raised that in your briefs or below. As I understood, the state does not assert the petitioner's allegation of poverty is in bad faith. If you've briefed that question in your brief please call my attention to it.
Harry C. Schoettmer: You Honor it has not been, and for this reason --
Earl Warren: And on the contrary haven't you conceded that it's not done that in bad faith.
Harry C. Schoettmer: In effect on the application for writ of certiorari, we --
Earl Warren: Well that's why you raise it here.
Harry C. Schoettmer: We should have raised it at that point and I had in a note here, to have raised it at that time and it was not raised when the application for writ was granted by the Court.
Earl Warren: Can you concede at one time and then rely on it later?
Harry C. Schoettmer: I assume not Your Honor, but I'm only trying to put forth the type of case as this, that this is an important --
Earl Warren: We're not interested in the type of case, we're interested in this particular case right here.
Harry C. Schoettmer: This particular defendant then.
Earl Warren: Yes.
Harry C. Schoettmer: This is what we're interested in and we think that our decision by this Court, that would go along the line and extend the Griffin case for this defendant is unfortunate, for this reason, already this Court has had the merits, the factual matter of the case before it, in the form of the codefendant who had paid his $20 and who did file application of writ of certiorari to this Court on the merits of the case itself.
Speaker: What case is that?
Harry C. Schoettmer: That's was the Lotts case Your Honor. It was -- I have a note on it. Lotts versus State of Ohio, certiorari denied December 15, 1958, Supreme Court report, 115 volume 79 number 5 miscellaneous docket 482 are the numbers that I have.
William J. Brennan, Jr.: Were they tried together?
Harry C. Schoettmer: Yes Your Honor, all the way they were jointly tired together.
William J. Brennan, Jr.: What was this robbery or what?
Harry C. Schoettmer: It was burglary of an inhabitant dwelling and which carries of course a life sentence when no mercy is extended by the jury. Second county indictment was grant larceny in the matter of stealing.
Speaker: (Inaudible) that Lotts case where your court --
Harry C. Schoettmer: There was Your Honor.
Speaker: There was?
Harry C. Schoettmer: Yes.
Speaker: (Inaudible)
Hugo L. Black: If $20 is so small, that to be ignored what about 50 (Inaudible)
Harry C. Schoettmer: Well –
Hugo L. Black: Where would you go with that?
Harry C. Schoettmer: Whatever is reasonable Your Honor and each case must stand on its merits as to what is the reasonable. Now in this case we have $20. We maintain that $20 is reasonable. The $20 --
Hugo L. Black: Under any circumstances (Inaudible), you maintain --
Harry C. Schoettmer: Yes Your Honor.
Hugo L. Black: -- $20 just be ignored?
Harry C. Schoettmer: In the year 1959 we cannot conceive of a position where a defendant is in such circumstances that if he is -- wants to make a good honest appeal, it is not privilege, it is not flaunting the Court that he somewhere cannot pay his $20 fee.
Hugo L. Black: Through (Inaudible) in the United States.
Harry C. Schoettmer: I suppose the truth Your Honor. I think we have to look as to whether it's reasonable or not and Justice Frankfurter made this statement in the Griffin case, he said something to this effect. In order for -- to avoid or immunize abuse and waste a state may appropriately hedge, not only gives leave for -- about the opportunity to prove a conviction wrong. When a state not only gives leave for appellate correction of trial errors, but must pay for the cost of its exercise by the indigent, it may protect itself so that frivolous appeals are not subsidized and pubic money is not needlessly spent.
Earl Warren: Well is that such a small amount that it doesn't -- that it shouldn't preclude any indigent from paying it, why would it be such a burden on the state to waive it?
Harry C. Schoettmer: Well, because it fellows like Burns Your Honor, remember this is a deputy sheriff. I know it's not the record, but we are talking about Burns and who he is and what he has done since he has been in the penitentiary.
Earl Warren: That isn't hardly in the case as I see it. I thought you were talking about people here and not --
Harry C. Schoettmer: We are.
Earl Warren: -- and not about a person, I don't find anything in the record on that, but what is the answer to that question? Now I can see where it's quiet a burden on the state or at least on some state, where you have a trial that involves 2,000 or 3,000 or 4,000 pages of testimony that require them, require the state to pay for that transcript, that's quite an amount of money, but if as you say, any indigent in prison or in America, could if he wanted to pay $20 for access to your Supreme Court, why it would be such a burden on the state to waive that fee when in order to give indigents exactly the same standing before the courts to people with money.
Harry C. Schoettmer: Your Honor as a matter of fact it undoubtedly would not be a burden upon the State of Ohio to waive this $20 filing fee.
Earl Warren: Well then why it is such an important issue here?
Harry C. Schoettmer: Well, only because we feel that first of all this man has had his appeal, that the Griffin rule should not be extended, that the Supreme Court of Ohio should have the right to say what are the reasonable necessary procedures and we feel that it is the prerogative of that court to determine its procedural development and we're confident that this Court would say that any reasonable procedure that Supreme Court says it must have is perfectly all right. We're trying to suggest this Court --
Earl Warren: I think no one would disagree with you, if you said that everybody could have but one appeal in the Ohio and that, that stopped right there at the Court of Appeals, but when you prescribe another procedure, above that whereby people who have means can have access to the Supreme Court, but through which indigents can have no access, then it seems to me you've got an entirely different problem.
Harry C. Schoettmer: Well, of course we have to take a position that there -- as to the $20 filing fee and honest appellants, ones who want to be heard, because they have an honest conviction in their rights and in the errors that were committed against them, we feel that there is no such thing as an indigent with less than $20.
Earl Warren: So you think it is just a per se case?
Harry C. Schoettmer: That has to be our position.
Felix Frankfurter: I have now read the two Wanamaker cases and it doesn't help me in the slightest with my problem (Inaudible). The first Wanamaker case says that a lower court can't mandamus the clerk of the Supreme Court, and tell that clerk what did you do with reference to matters before that court, (Inaudible). And the second Wanamaker case simply would be the general rule that involved this problem at all, that the clerk has always the duty of seeing that the formal requirements are satisfying and he can't pass on the merits of a mandamus, any connection with that and we should think that it's properly prepared or accompanied by regular filing fee, that doesn't deal with my problem at all whether action could be added to the Court, so that the court when it held to waive its requirement of fee, will respond, and not the clerk in giving the general rule, he is just (Inaudible) in that regard.
Harry C. Schoettmer: That's correct Your Honor.
Felix Frankfurter: The appellant in those two cases, with all due respect to Mrs. Washington, you shed no light on my problem at all.
Tom C. Clark: May I ask you on the second one, how did first -- how did Wanamaker there get notice of the Supreme Court has been held for mandamus against the clerk.
Harry C. Schoettmer: I don't know that Your Honor.
Tom C. Clark: Exhibit B I think shows you did it by (Inaudible). Did they decline, did the Supreme Court decline the issues of mandamus for clerk?
Harry C. Schoettmer: I think the Court said –
Felix Frankfurter: (Inaudible)
Harry C. Schoettmer: Yes and then the Supreme Court stepped aside and reversed it, I believe that was right, isn't that right judge? As I recall the case.
Tom C. Clark: It came up here to us, that he asked us to reverse their refusal, to give him a mandamus.
Harry C. Schoettmer: Yes he did, I believe he denied it Your Honor. The only point in that case, that I said what I did was this, that I believe the Court goes on to say that the clerk must do whatever the Supreme Court says it must do as a robot, as an (Inaudible). If he accepts the paper incorrectly against the orders of the Court then he should -- the Court will fire him. If he refuses to accept papers, and the Court will have to handle him in its own course as it sees fit because it is -- he is its robot. Now because the clerk turns down the applicant, therefore it is apparently the order of the Court that he do so. That's what I meant Your Honor.
Earl Warren: Mrs. Washington.
Helen G. Washington: I don't know whether I ought to get into this view of counsel's concession that the letter of the clerk should be treated as the judgment of the Court. But the Wanamaker case, if they -- that when the clerk carries out the instructions of the Court he is acting for the Court, and in this case the clerk was carrying out the instructions of the Court, the letter say so --
Felix Frankfurter: How you know, how do I know?
Helen G. Washington: His letter says so.
Felix Frankfurter: He simply says this is the regular thing, that you require a filing fee, but the specific problem whether a specific appeal, it then raises the general question whereby a court could say, is it a new problem for us hereafter to indigently establish, he weighs this, was not before the Wanamaker Court and is not to be inferred from the clerk's letter, it is just telling a routine order of (Inaudible)
Helen G. Washington: Well, the clerk's letter does indicate that the Court has ruled on this question and that he is following that ruling, at least that is my interpretation of it, and I think for practical purposes it has to be treated as the order or the judgment of the Court.
Earl Warren: Mrs. Washington before you sit down I would like to express the appreciation of the Court to you for assuming this responsibility of defending this indigent prisoner. We are always comforted by the fact that members of our bar are willing to do that as a public service and we feel very much indebted to you. And gentlemen may I say that we appreciate the prudent manner in which you have represented the State of Ohio and also for your very extreme frankness that you have displayed in this case and that of course without regard to decision in this case, very well.


John G. Roberts, Jr.: We'll hear argument next in Ayotte versus Planned Parenthood of Northern New England. General Ayotte.
Kelly A. Ayotte: Mr. Chief Justice and may it please the Court-- The Court of Appeals struck down New Hampshire's parental notification act on its face based upon a potential application of the act that even respondents concede may only arise in the smallest fraction of cases. In doing so, the act was rendered ineffective in the overwhelming number of applications where it is unquestionably constitutional, and State officials were denied the opportunity to imply... apply and enforce New Hampshire's act within constitutional limits. New Hampshire's act can be applied in a manner to protect a minor's health if the rare case arises where a medical emergency occurs that requires an immediate abortion. In that rare case, if it does arise, where an abortion has to be performed immediately and the child does not want to notify a parent, there is a judicial bypass mechanism available which requires New Hampshire courts to act promptly and without delay and in the best interests of the minor.
David H. Souter: May I interrupt you at this point? Because there is one thing that I'm not sure that I understand about your position, and one way of reading your brief takes you a step beyond what you have just said. So I would like to get clear on this. And I understood your argument to be that given the safeguards such as judicial override, there simply was no... there was no need to read the health exception in, that in fact it was taken care of... any of the issues that might be raised in arguing for the need for health exception in fact were addressed by the statute. The point at which I'm not clear on your position is... occurs in what you've said on page 11 of your yellow brief, if you could get that out. Do you have the carry over paragraph on 11? You go through the kind of a worst case analysis. And you say, well, you know, assuming that all of the safeguards somehow do not work, finally, in the unlikely event that a parent refuses to waive the 48-hour waiting period and so on, a doctor who performs an emergency abortion under such circumstances would not be subject to either criminal prosecution or civil liability because his or her conduct would not only be constitutionally protected but would be independently justifiable, and then you cite the competing harms. What do you mean when you say it would be constitutionally protected? I read that as suggesting that there was indeed a constitutional requirement for some kind of a health exception, but that may not be what you meant. What do you mean by constitutionally protected? What are you getting at?
Kelly A. Ayotte: Justice Souter, in that instance, we did not say that it was an independent constitutional requirement that there be a health exception, but certainly reading this Court's cases, we should apply our act in a manner to protect if that rare case arises where an emergency abortion would come forward. And, if a physician were prosecuted under those circumstances, we believe not only would he have a statutory ability to say this prosecution is inappropriate given our law, but also given those rare circumstances, we do not think that he, under the Constitution, may be prosecuted.
David H. Souter: And if he said, "I may not be prosecuted under the Constitution because. " what follows "because", in your view?
Kelly A. Ayotte: I may not because New Hampshire's act may not be applied in a manner to ensure that if a minor in that rare circumstance needs an immediate abortion, that she receives that immediate medical care in those circumstances.
David H. Souter: Doesn't that mean because there is a required health exception? I mean, isn't that what you're saying?
Kelly A. Ayotte: Justice Souter, not that there is an express requirement of a health exception but that the law cannot be implied in a manner to infringe on the minor's health if that rare emergency case arises.
Anthony M. Kennedy: Your first answer to Justice Souter was that the physician would say you can't be prosecuted under our law. Do you mean this act that we're looking at here? Or do you mean the law generally including constitutional protections that this Court has proclaimed?
Kelly A. Ayotte: Justice Kennedy, in that limited circumstance, we do not believe that the physician would be prosecuted under our parental notification act, given that there is a mechanism--
Anthony M. Kennedy: Because of the text of the act or because of some policy that the attorney general would follow in order just to decline to prosecute? We want to know what this act says in the instance posed by Justice Souter.
Kelly A. Ayotte: --Justice Kennedy, with respect to the act itself, assuming it were a life... excuse me, a health emergency short of a life threatening emergency, where a minor did not want to notify her parents and assuming those situations came forward and someone was unable to reach a judge, the act itself provides a mechanism in it that anticipates providing a judge where necessary, and so that would be the ability of a minor in those circumstances to seek a judge. But if for some reason all of those situations came together and the minor could not seek a judicial bypass in those instances, there is an existing provision of New Hampshire law, our competing harms defense, that we believe protects the physician in those circumstances.
Stephen G. Breyer: Let's just imagine a real circumstance. A 15 year old walks in 2:00 in the morning on Saturday into the emergency room and the doctor looks at her, she's pregnant, she has this very high blood pressure, whatever. And the doctor thinks to himself, he thinks, well, immediate abortion, no question, immediately deliver the child. If I don't, I don't think she's going to die but she'll never have children. And he's thinking that. What's supposed to happen? He calls up Pam Pevagoglio or Pam Livingston and there is no answer. It's 2:00 in the morning and there is one of those things, leave a message, okay? Should I call your parents? No. They don't know I'm pregnant. Now, what's supposed to happen?
Kelly A. Ayotte: Justice Breyer, the physician in those instances could perform the immediate abortion.
Stephen G. Breyer: It doesn't say that in the statute. It suggests the contrary. So what is the particular provision of New Hampshire law that tells that... I mean, the doctor... all these things are, you know, questions of probability. And he doesn't want to risk being prosecuted and he doesn't want to risk losing his license. And so what particular provision... he happens to have his lawyer with him. [Laughter] What does the lawyer say? Okay? What's the provision that saves him? There is no health exemption in this statute.
Kelly A. Ayotte: Your Honor, his lawyer would advise him, in those circumstances, that the competing harms defense would protect his actions because he needs to act urgently necessary... in an urgently necessary circumstance.
Sandra Day O'Connor: Would it protect him from a civil damages action as well as prosecution in a criminal case?
Kelly A. Ayotte: Justice O'Connor, by the plain language of the competing harms defense, it also precludes civil liability. I would also say that that lawyer would also advise him, if given the opportunity, the attorney general is prepared also to issue an opinion describing the applicability of the competing harms defense in this very rare circumstance, should it arise.
Stephen G. Breyer: How do we know? I mean, what you're saying is fine, but how do we know that that's actually the law? I mean, there are a lot of people who absolutely in very good faith would say that it isn't competing harm. They would say that the competing right that the life of the fetus is more important than the possibility of the mother having children in the future herself. See, there are people in good faith on both sides of this argument. And so how do we know that the New Hampshire statute is going to do... not the statute, but your competing harms defense is going to do for this particular woman what a health exception would do?
Kelly A. Ayotte: Justice Breyer, because the harm that is being weighed here is the harm of urgently providing care to this minor who needs it, as opposed to the harm that the act is trying to get at, which is notification of parents. It's not whether or not the minor can have an abortion. The minor can always go forward and have an abortion under these circumstances. So people aren't weighing the right of the fetus, in this instance, to the right of the mother's health. So the weighing is quite easy. And if given the opportunity, my office would be prepared to issue an opinion as to the applicability of this defense.
Ruth Bader Ginsburg: But, your opinion... that's the real problem here for the doctor who is on the line. And you said the lawyer would say, oh, you've got this defense of... what do you call it harm--
David H. Souter: Competing harm.
Ruth Bader Ginsburg: --Competing harms, a defense... I think that a lawyer who cares about his client would say, defense is not what we want. What we want is there is no claim, not that you have to put up a defense and maybe the attorney general will give us a letter saying that we come under that defense. Wouldn't a careful lawyer say, what you need to be protected is that there is no claim for doing what you're doing?
Kelly A. Ayotte: Justice Ginsburg, in the Simopoulos case considered by this Court, one of the issues that was raised was a medical... the physician was prosecuted for performing an abortion outside the parameters of the Virginia act. And the physician failed to raise a medical necessity defense. This Court held that that was sufficient prosecution, that that was okay. And this would work the same way. Once the physician raises a competing harms defense--
John Paul Stevens: General, may I just point this... suppose the lawyer or the doctor are aware of the legislative history and say, well, generally that's true. But when you have a legislative history that suggests that the legislature considered this very defense and rejected it in the statute, would then that then give them some concern?
Kelly A. Ayotte: --Justice Stevens, the legislative history... there certainly was some indication that the legislature did not want a general health exception. There is no indication in the legislative history that the legislature intended to preclude this narrow category of cases which constitute emergency cases short of that.
John Paul Stevens: But if they discussed the issue on the floor of the legislature, why wouldn't they have drafted the precise protection they thought appropriate?
Kelly A. Ayotte: Your Honor, when they discussed the history on the floor of the House and Senate, they felt that it protected for emergencies and there was no discussion of this narrow category of cases short of death.
Antonin Scalia: And you have another point here, don't you, about how general this statute is. We don't normally interpret statutes this way, that they are totally invalid if any application of them would be unconstitutional. That's not what we do with statutes normally, is it?
Kelly A. Ayotte: Justice Scalia, no. In fact, the analysis, if you look at this one potential application, this... the standard applied by the Court of Appeals in this case goes well beyond even a substantial overbreadth test that is applied by this Court in the first amendment context.
Antonin Scalia: In the first amendment.
John G. Roberts, Jr.: Am I right in reading your briefs that you don't object to a preenforcement challenge to the bypass procedure itself brought by physicians, for example?
Kelly A. Ayotte: Mr. Chief Justice, no, we do not object in that sense. We think that is a very good mechanism to bring forth a case given that this Court has granted third party standing to physicians to resolve these types of claims. And the benefit--
John G. Roberts, Jr.: And I gather that the debate on the evidence and the circumstances that might arise in that case would be quite similar to the debate in the present context. In other words, there would be the same discussion between the different physicians about what emergencies arise and in what circumstances and whether that creates a problem and whether you can get to the courts in time and so on. It would be the same underlying sort of evidence that we have here, right?
Kelly A. Ayotte: --Mr. Chief Justice, it would, but it would be much more narrowly focused in terms of bringing it as an as applied challenge, this was brought--
Ruth Bader Ginsburg: How would it be as applied? Look at your reply brief at page 3. And you've made it very clear, and I think that it is helpful that you did, that there could be this preenforcement action by doctors who would not have to wait until faced with an actual medical emergency to bring the suit. You've talking about this small category of cases, but I take it from what you have read... what the lines I've just read, that you envision a doctor who says, sooner or later, I'm going to have such a case. Right now, I don't know and I can't know until it's too late to come to any court, so I'm going to bring this preenforcement which you characterized as applied. But I don't see how its as applied, if if the physician just says, as you put it, I don't have to wait until faced with an actual medical emergency to bring this suit. So what is the relief, what is the lawsuit that you envision would be proper?
Kelly A. Ayotte: --Justice Ginsburg, the lawsuit would be a preenforcement as applied challenge and the physician would bring the claim and would say, as applied to me, I perform abortions, I also perform abortions on minors. I need to perform an abortion in these emergency settings. The court can issue an order, presuming it's not satisfied with the protections that are set forth in New Hampshire law that I've described.
Ruth Bader Ginsburg: Could you do that as a class action?
Kelly A. Ayotte: Depending on the circumstance, he may be able to.
Ruth Bader Ginsburg: What is the circumstance? All you said here is there coule be a preenforcement challenge by doctors who would not have to wait until faced with an actual medical emergency.
Kelly A. Ayotte: Justice... I'm sorry.
John Paul Stevens: Why isn't that this case? I don't understand.
Ruth Bader Ginsburg: Yes, exactly.
Kelly A. Ayotte: Justice Stevens, this is not this case because this case was brought as a facial challenge. Our entire act was struck down based upon that one potential--
John Paul Stevens: You mean he has to bring the as applied challenge when he has the patient in his office? He has to wait until he has the patient in the office, is that what you mean?
Kelly A. Ayotte: --No, he doesn't. He can bring it before the patient is in his office and then the court could issue relief which would be much more consistent with the principles of certainly separation of powers and allowing the overwhelming number of our applications of our statutes that are valid to go forward.
Antonin Scalia: We're talking about a lawsuit which asks for declaration, not that the entire statute is invalid. But that, when faced with an emergency of the sort that this discussion has addressed, the physician can go ahead and perform the abortion?
Kelly A. Ayotte: That's correct, Justice Scalia.
Antonin Scalia: Quite a different lawsuit from this one.
Kelly A. Ayotte: That's quite a different lawsuit and a lawsuit that would be certainly, from the State's perspective, would allow the overwhelming number of applications of this statute where there is no dispute that it works well, to go forward.
John Paul Stevens: But in Justice Scalia's case, would not the reason for that relief have to be a finding that the statute is unconstitutional? You can't just grant the relief because you think it's a good idea.
Kelly A. Ayotte: Justice Stevens, it would be only in the context of that one particular application as applied to that physician, which would have stare decisis--
John G. Roberts, Jr.: It would be a finding that the bypass procedure is inadequate which doesn't necessarily implicate the general notification provisions.
Kelly A. Ayotte: --Mr. Chief Justice, that would be the case. And certainly if that one application, in that one potential rare case was found not to be valid, then the remainder of the applications can go forward. And that is how most cases work with respect to as applied relief.
Ruth Bader Ginsburg: Then I think what you're saying essentially is that the First Circuit was concerned with this category, wanted to give preenforcement relief to the physician, so what they did was write except that they should have said this statute is not enforceable where there is a risk to the woman's health and it cannot be applied in any such cases. Where there is a risk to the health, then the statute is okay.
Kelly A. Ayotte: Justice Ginsburg, the First Circuit went well beyond because it focused on a general health exception, they've now focusing it on an emergency exception. But certainly the relief should have been as applied. If I may reserve the rest of my time for rebuttal?
Sandra Day O'Connor: Did you ask that the relief ordered below be more restrictive? Was that challenged after the judgment was entered?
Kelly A. Ayotte: Justice--
Sandra Day O'Connor: Did the Court below have a chance to consider tailoring it more narrowly, as you suggest today?
Kelly A. Ayotte: --Justice O'Connor, we did raise the application of the severance clause below, although the court, both at the district court level and the First Circuit appeared to look at the... the lack of a general health exception as a per se constitutional problem that rendered the statute as a whole invalid.
Sandra Day O'Connor: I just am not clear to what extent you really raised the possibility with the court below of carrying its judgment more narrowly as you're suggesting today should be done.
Kelly A. Ayotte: Your Honor, we certainly raised the severance issue in the district court.
Ruth Bader Ginsburg: You've used this word severance now twice. Severance is I excised a clause from the statute, but you're not asking for that. It's not severance. There is no provision to be severed here. It's putting a caret mark and adding something to it. Not taking out any provision, but putting in an additional provision.
Kelly A. Ayotte: Your Honor, you're correct. What our position is is that they did not meet the standard that they should have been able to meet for a facial challenge, which would grant as applied relief which would only be invalid in that one potential application. If I may reserve the rest of my time, with all due respect.
John G. Roberts, Jr.: Thank you, General. General Clement, we'll hear now from you.
Paul D. Clement: Mr. Chief Justice and may it please the Court--