Warren E. Burger: Today is number 81, Simmons against West Haven Housing Authority.
Francis X. Dineen: Mr. Chief Justice --
Warren E. Burger: Mr. Dineen.
Francis X. Dineen: Mr. Chief Justice, may it please the Court. My name is Francis X. Dineen. I represent the appellants in this matter. Jurisdiction of this Court has invoked under 28 United States Code, Section 1257, Subsection 2 because of the fact that the constitutionality of a state statute as an issue. And by the decision of the appellate division of the State of Connecticut, the constitutionality of that state statute has been upheld. The Supreme Court of Connecticut denied our petition for certification and so the appeal to this Court is from the appellant's division of the Circuit Court. The facts of this case involve a relatively ordinary eviction action which was commenced in July of 1967. Thereafter, pleadings were filed and defenses were raised and in fact seven special defenses were raised to the eviction action that was brought. In January of 1968, a trial took place. On January 16, judgment was entered for the landlord, the Housing Authority of West Haven. Thereafter on January 18, our appeal from that judgment was filed with the Appellate Division. At that time, pursuant to Section 52-542 of the Connecticut General Statutes, it was required that we file with the court a bond with a surety to cover the rents that might accrue during the pendency of the appeal. And in order to file that bond, on behalf of our clients, we went to several surety companies asking them what they would require to go on the bond as a surety. The bond in this case because the rent was $72.00 per month would have been approximately something in the nature of $400.00 to $500.00 or even more dollars for this bond. In fact, that case that we have cited in our brief, in which the rent was approximately the same as our rent, the trial court had ordered that a bond in the amount of $700.00 be filed in that particular case. So that in any event, our bond would've been something in the nature of $500.00 to $700.00. And this again, is to covered the rents that would accrue during the pendency of the appeal. The surety companies that we approached asking that they own this bond with us, demanded full cash collateral before they would sign a bond as well as demanding their fee. This was impossible for our clients to pay. They were poor and they didn't have that kind of money. So, we went to the trial court and by motion on our client's behalf to waive the surety bond. We stated these facts to the trial court and asked that as an alternative in order to protect the landlord during the pendency of the appeal that we be allowed to pay the rent into the Court every month to be held by the Court in escrow. And we also agreed that in the event that we should loss the appeal and ultimately if the Supreme Court of Connecticut heard it and lose there, but this body then will be turn over to the landlord. We also agreed that if any one month we fail to pay that rent into the Court that the appeal could automatically be dismissed. Now, we thought this was a fair alternative because the increase of the state has in protecting the landlord would be met entirely by this provision by this alternative that we offered if we pay the rent to the Court every month as it came due. And if we fail any one month and our appeal would then be dismissed, the landlord would have all the protection that he would be entitled to.
Warren E. Burger: Is it clear Mr. Dineen that the Court have the power by way of equity, discretion or some other source to waive the bond requirement and accept your alternative proposal?
Francis X. Dineen: Your Honor, it appears to us that it's clear that they did not have that discretion. The reason I say that, we cited in our appendix the appellate court decision and on page 57 in the appendix where we recited the decision, the court says, the right to an appeal is a not a constitutional one. Though one based upon privileges of natural justice. It is but statutory privilege which an aggrieved party has the right to avail himself of only when he is strictly complied with the provisions of the statutes. And later, on page 60 of the appendix, the Appellate Division says, "Want a bond with surety, where a bond with surety is by statute a prerequisite of review furnishes a sufficient ground for dismissal of the appeal." We made the motion in the trial court because there had not been a decision such as this with regard to waiving a surety bond prior to this time. We made it because we felt when we're offering a fair alternative. It turned out from our understanding now of the Appellate Division's decision that the Appellate Division decides that it does not have the power to waive this --
Hugo L. Black: What did you say the suit was filed for?
Francis X. Dineen: This is an eviction action Your Honor.
Hugo L. Black: It -- nonpayment of rent?
Francis X. Dineen: Well, there were two actions. The action that we're concerned with was based on nonpayment of rent. Prior to that, --
Hugo L. Black: And you offered to pay the money in the court?
Francis X. Dineen: We offered to pay the money in the Court at the time of the appeal. During the pendency of the action from July 1967 until the time of judgment in January of 68', rent was not being paid. Now, --
Hugo L. Black: Was there any defense?
Francis X. Dineen: Yes, there was Your Honor. There were defenses on the merits that no rent was due. Our defense all along was for two reasons no rent was due. One was that the -- we claim that the landlord, the Housing Authority, had not complied with Connecticut statutes and this is set forth as well on page 29 of the appendix.
Hugo L. Black: What Connecticut statutes?
Francis X. Dineen: There're Connecticut statutes Your Honor that require that any building that is considered a tenement house or a garden type apartment. And these are -- they find in Connecticut statutes, must have what is called a tenement house certificate stating that that building complies precisely with these tenement house laws. And if it does not have a tenement house certificate, then no rent is due. And under a case cited I believe in our jurisdictional statement, Creamy Hollow Apartments against Louis, no special proceeding or some reprocess action can be brought when such a house does not have this tenement house certificate. That was one of our defenses as to the claim for rent. There was a second defense and that relates to the first action that was brought. There was an action brought some two months or three months before the second action which is an issue here. That was brought in early May and it was effort file the landlord to put these people out for another reason. That was our contention that under Connecticut law that once a first action is brought, there is no more obligation on the part of the tenant to pay rent to the landlord. It's an obligation to pay what we --
Hugo L. Black: But you offered to pay the rent first, plus the cost?
Francis X. Dineen: I beg your pardon Your Honor?
Hugo L. Black: Did I understand that you say awhile ago, you had offered to pay rent plus the cost?
Francis X. Dineen: We had offered to pay rent every month from the time of the appeal. The point I'm trying to make is this.
Hugo L. Black: That would pay at all?
Francis X. Dineen: I beg your pardon Your Honor?
Hugo L. Black: That would pay all the man was claiming, that company --
Francis X. Dineen: No, Your Honor. That would pay from the time the appeal started -- from the time the appeal started during the entire pendency of the appeal.
Hugo L. Black: But would it pay the back rent?
Francis X. Dineen: It would not pay the back rent, Your Honor. Now as to that question, there's no required in Connecticut law that in order to defend or to litigate in a summary process action, if you have to pay any rent. In fact generally, when a summary process action is commenced, the landlord will refuse to take any rent because this would be a waiver probably of his action. Litigating and defending an eviction action is not conditioned in Connecticut upon paying current rent. Connecticut law does not require that. And this particular factor, we don't feel as relevant to this case. In other words the fact that for several months, from July until January rent was not paid is not relevant to the issue that we presented to this Court. If we had paid the rent in full, every month as we went along during the litigation. We still would have come to the same problem that we came to here. We would've come to the time of a appeal where we would have had put up this bond with a surety. In other words, to get the surety, we would have to put up lump amount covering perhaps some six or seven or eight months rent. And so the precise same issue that's raised by this case would have been raised even if every month we had been paying the rent to the landlord or into the court during the litigation. But we had defenses up until the time --
Hugo L. Black: What did you say your second defense was?
Francis X. Dineen: The first was that there wasn't any tenement house certificate. The second was, that there had been a prior action brought which terminates any obligation on the part of a tenant to pay rent to the landlord. Once the landlord commences an eviction action, he waives his right to collect rent and his effort to terminate the lease --
Hugo L. Black: He waives his right to collect rent?
Francis X. Dineen: Collect rent as such Your Honor. He's still is entitled to collect whatever the reasonable value of the premises are, but this would be a separate matter. These were our two defenses during the cause of the trial that rent was not due to the landlord.
Potter Stewart: What was the basis of the prior action? Was that also an eviction action?
Francis X. Dineen: That was an eviction Your Honor. The basis of that was they claimed the nuisance with regard toward tenants. We defended that. That never came to trial, that action in fact is still pending, theoretically. It's never been withdrawn, it still exist. Our defense is relating to that action are set forth from the special defenses that we had which are part of the record in the second action.
Potter Stewart: So, that was the first action in the eviction action because your clients have allegedly were committing a nuisance?
Francis X. Dineen: That was the allegation Your Honor.
Potter Stewart: And then -- and that's never been resolved. And then there was a second eviction action based upon to nonpayment of rent. And you had two defenses. First, that since they didn't have a certificate, they couldn't ask you for rent?
Francis X. Dineen: That's correct.
Potter Stewart: And secondly, since they brought this earlier action, they didn't have any right to ask you for rent as such (Voice Overlap) --
Francis X. Dineen: That's correct Your Honor. They have waived it or they were stopped to claim --
Potter Stewart: But I don't understand, how you can say that if you had kept paying rent this question would still have arisen because if you had I suppose in this action which is only based on a nonpayment of rent, it couldn't have arisen. There would've not been an appeal, there wouldn't have not been a --
Francis X. Dineen: Yes Your Honor. If we had been paying -- let us assume we have been paying during the course of the litigation each month. Now, if we paid as rent, there is some technical use of words in Connecticut as to rent or use in occupancy. If we paid as to rent and it was accepted as rent, this would operate as a waiver of the action. In other words, once the landlord had renewed the tenancy, then they couldn't continue on with the action. Well, let us assume we didn't pay it as a rent, we paid it as use in occupancy with the reasonable value with the premises as we went along. Now, that would have not affected to the court's judgment because the judgment was based upon facts that took place prior to this time, prior to the continuation of litigation.
Potter Stewart: Nonpayment of rent --
Francis X. Dineen: Nonpayment of rent for a specific month which was back in the month of May which was what they were claiming. At the time of judgment, I -- if we are paying the during the course of litigation is, what I'm saying is that would not affected the court's judgment. At the time of judgment, eventhough we were paid up and were current, we still would've face this appeal bond which says, if you want to appeal, you have to put up a bond with surety to cover the rents that will accrue. Even if we had no arrears at that time, we would have to get a surety and pay him say, five months in advance or whatever it would be that we would put down in the bond, say $500.00 in advance. And even if we're current and had no arrears, we would still in order to meet this appeal bond have to have more tenants put up $500.00 in there which they couldn't afford.
Thurgood Marshall: But how would you lose if you paid the rent? So I understand you said this would pay you to pay rent?
Francis X. Dineen: The eviction --
Thurgood Marshall: And you did pay rent, you'd win.
Francis X. Dineen: Well, not necessarily because this is a very -- it's a very technical action. The action that was brought related to a failure to pay in May. The first action was brought on May 5th. We claimed we had a leeway to pay. In other words, they have been there for months before sometimes they paid on the 10th, sometimes on the 15th. It's a working family. When they didn't have it, they got a few days extra to pay. The landlord wanted them out and brought the action on the 5th on the technicality that they hadn't pay on the first. Now, what I understood Mr. Justice Stewart's comment today was if we're paying in good faith a long as we went rather not necessarily on the first which is the technical basis of the action. But say on the 15th and whatever we had it each month, wouldn't that affect the outcome. I'm saying no, that would not affect the outcome at all, because he would still get to the point of judgment where the trial judge say, why didn't you pay on the first. Therefore, judgment for the landlord, I don't care whether you've been paying your arrears or --
Thurgood Marshall: You mean the Connecticut Court would say that for the past six months you paid $72.00 everyday, every month on the second, therefore, you are out?
Francis X. Dineen: Yes Your Honor. If you didn't meet the terms --
Thurgood Marshall: That's what the Court would say?
Francis X. Dineen: If you didn't meet the terms of the lease and the eviction action were brought on the basis of -- then termination of the lease for failure to comply with it. Even though during the course of litigation, we were paying use in occupancy. That court would still say, that they were the judgment of the landlord. So that there could've been a time, and what I'm saying is that makes this nonpayment or this failure to pay during the litigation irrelevant. There could've been a time when we came to judgment for the landlord and we had no arrears. We've been paying this use of occupancy all along and we're still faced with the precise question that were faced with here.
Warren E. Burger: Mr. Dineen, let me see if I can get one opinion clear there were some findings here and then there are some colloquy in the record which would seem to explain the findings. And I'm not sure to -- in which action this took place. The finding I'm referring to, the finding of the trial judge, if the court at the first instance that this appeal was taken for purposes of delay and not in good faith. Now, do you challenge those findings?
Francis X. Dineen: Yes, we did challenge those Your Honor.
Warren E. Burger: But now if those findings, let's assume first that you are right from -- and that the findings are in error, do we review a finding of the Court at the first instance of the state on a factual issue in which undoubtedly credibility and other similar factors are --
Francis X. Dineen: No, no Your Honor. My contention as to that as well is that that finding is irrelevant to this appeal. That finding that the appeal was taken for the purpose of delay relates only to stay of execution. Other words, we're still --
Warren E. Burger: Was it not also relate to whether a bond would be accepted --
Francis X. Dineen: No Your Honor.
Warren E. Burger: -- Under any circumstances?
Francis X. Dineen: -- because as I understand the Appellate Division decision there is no discretion in the court to waive the bond. In other words, even if they thought we were appealing in for delay. They or not for delay or in appealing in good faith whatever the trial court may have found. He still doesn't have the discretion to waive that bond. He requires the bond and failure to put up the bond makes a subject then to a motion to dismiss the appeal. Our feeling is that the finding that the appeal was taken for the purpose of delay is not relevant to the questions before this Court because that only relates to the stay of execution. The Appellate Division's decision in this matter, when they dismissed the appeal and denied our motion to review says nothing about any delay. It simply says, that we failed to put up a bond and that the bond is required. The appeal was dismissed because we didn't put up the bond and the bond was not waived because there was no authority in the court to waive a bond. Any question of delay which we did dispute all along even assuming that there were delay involved and that the finding of the trial court were correct is not relevant to this appeal. The only thing that's relevant as we see it, is the surety bond which requires in a fact that in advance be made on the rent in lump sum for some five or six months.
Potter Stewart: Well, that would defend if you -- while you approach this issues about the statute on this face and the statute in the trial. If you're arguing as a matter of federal constitutional law, state could not insist about security and in appeal in a situation where it made the determination, that the appeal was frivolous unless you can take it for the purpose in July, are arguing that?
Francis X. Dineen: I'm not arguing that Your Honor. Under Connecticut law, the question of delay or formality doesn't relate to your being entitle to appeal. What we are questioning is when there is the right to appeal, that's available to everyone but it's condition on the posting of this bond and which requires that you in a fact put up several months rent in advance. Now, that that is unconstitutional because it deprives some constitutional, we claim for several reasons both it denies Equal Protection of the law and it denies Due Process.
Hugo L. Black: Where is that finding?
Francis X. Dineen: I beg your pardon Your Honor?
Hugo L. Black: Where is that finding you made was indicated?
Francis X. Dineen: Which finding, Your Honor?
Hugo L. Black: Finding of facts about whether they were of indulgence?
Francis X. Dineen: There was a motion made to the trial court that we be entitle to waive the bond and at that time we filed an affidavit.
Hugo L. Black: Where is that? In the record?
Francis X. Dineen: I believe that's in the appendix, Your Honor.
Warren E. Burger: I believe that's finding one and two, I'm sure what page it's on.
Francis X. Dineen: And in the appendix on page 10, we have the motion to where the surety bond. Then, we have a financial affidavit of the tenants on page 12.
Hugo L. Black: Now, where's the finding of the Court whether there was indulgence shown?
Francis X. Dineen: I don't believe the Court ever made a finding Your Honor. The Court then --
Hugo L. Black: Now what did he show what the man does?
Francis X. Dineen: Yes Your Honor that's is in --
Hugo L. Black: What's his occupation?
Francis X. Dineen: He was working at Series Rolebook at the time.
Hugo L. Black: Regularly?
Francis X. Dineen: Not regularly Your Honor. The problem was this. During the cause of the trial, this man had a nervous breakdown and was unemployed for a substantial period of time.
Hugo L. Black: During the course of the trial of before it?
Francis X. Dineen: During the course of the trial. At the time of the appeal, when we file this financial affidavit, he then was working with Series Rolebook. But during the course of the trial, he had a nervous breakdown and was unemployed. We tried to obtain welfare assistance for the family. But because of the fact that an eviction proceeding was pending, we are unable to get assistance from the welfare upon. This one of the background fact --
Hugo L. Black: So you agreed to get some kind of fund in the Court? Shall be reward indigent or you bring the case all of at the end?
Byron R. White: Well didn't the corporation think it was a relevant whether he was indigent or not?
Francis X. Dineen: Well, that's -- this our understanding of the court's opinion that whether he is indigent or not there isn't the power to waive the surety bond. And I think that's implicit.
Hugo L. Black: Suppose there's not if it's in theoretical thing, why should we have it up beyond the constitutional question?
Francis X. Dineen: Well, the Appellate Division as I understand it makes a clear that there is any power to waive the surety bond that the surety bond must be complied with.
Hugo L. Black: Suppose does not and suppose he doesn't need this waive. Would you still claim you could get a decision on the constitutional question decided?
Francis X. Dineen: I don't understand Your Honor.
Hugo L. Black: Suppose it is not an essential, would you still claim that eventhough you're not indigent you could get it it's not constitutional question decided.
Francis X. Dineen: If you're not indigent?
Hugo L. Black: Yes, there's no finding of them.
Francis X. Dineen: Well, I --
Hugo L. Black: Or you say you can get to that issue without having something or some kind of find or of something to show that really you use any of it.
Francis X. Dineen: Well, we have an affidavit --
Hugo L. Black: That's right but is there any finding?
Byron R. White: Well, could you make the court make a finding on -- even to that you, if they thought would be relevant?
Hugo L. Black: Since, we were denied and as I understand on the basis because indigency is irrelevant because the surety bond is required. I think that raises the constitutional question. We're claiming that person was indigent. The Court has denied us, our request to waive the surety bond regardless of whether he is indigent. I think that's enough to raise the constitutional question to this Court.
Hugo L. Black: Suppose he has waived $50,000.00. Would still say that the Court had to consider that he was indigent?
Francis X. Dineen: But we have an affidavit Your Honor, that that indicates that he is indigent.
Hugo L. Black: But I understand you just say that's irrelevant whether he was or not?
Francis X. Dineen: That's what the lower court said and that's what the appellate court had said that they would not waive the surety bond because they didn't feel that the statute given the power to waive it.
Warren E. Burger: Well, if Equal Protection on your argument to -- is an absolute requirement that there must be a right to appeal and still having some difficulties seeing whether it makes any difference. But there is another way to protect the appellee in this case the Housing Authority?
Francis X. Dineen: Well, we make two arguments on the basis of Equal Protection. One is that this classification that as I say those -- we can put up the surety bond as suppose to those who cannot is without a reasonable basis the standard Equal Protection test.
Warren E. Burger: But does it make a difference to your case whether you could or could not put up the rent during the pendency of the appeal? Suppose he could not pay the rent at all during the pendency of the appeal would your position be different here today?
Francis X. Dineen: Yes, I'm not going that far Your Honor. Our position is that we offered to pay that and we would pay that and also, we offered that if we fail to pay, the appeal could be dismissed forth with at any one month that we did that. We're not saying -- we're not asking that he need not pay anything at all. We say that the state has a legitimate interest in protecting the landlord during the pendency appeal. We might even had said that if were a matter of state law that the state might have a legitimate interest during the previous time. But that wasn't -- that's not part of any state laws.
Warren E. Burger: But if you're right and if your position is some on the Equal Protection ground, would you posture not be the same, if you didn't have a dime to pay into the treasury of the court or refuse to pay it?
Francis X. Dineen: Not precisely, I don't think because we do recognize that there is a reasonable and legitimate interest that the State may have in protecting land owners. After a judgment has rendered in their favor during the pendency of an appeal. What we're saying is that it's arbitrary that they manifest this kind of interest or this protection by in effect requiring that five or six months be pay all at once at one time which is impossible for somebody who can't afford it. We're saying that the reasonable way and the almost obvious way, that they could've protect the interest of the landlord was to require that if be paid month by month. That way, access to the courts will be available to everybody.
Hugo L. Black: How many months did you offer to pay?
Francis X. Dineen: The requirement was that we put up a surety bond --
Hugo L. Black: I know about this, but how much money, you should you attempt to offer to payment.
Francis X. Dineen: We offered to pay month by month from the time of the appeal.
Hugo L. Black: How many months did you offer to pay?
Francis X. Dineen: We did in fact pay Your Honor five months during the course of the entire appeal. There's three hundred and --
Hugo L. Black: And yet handed an affidavit of indigency not be in able to make the bond?
Francis X. Dineen: The affidavit was that we couldn't make the bond, yes Your Honor. But the rent was $72.00 a month and each month from the time of the appeal for five months, thereafter. Each month we deposited $72.00 with one or another clerk either the District Court or up our own Circuit Court. So that there is now an effect. In fact, $360.00, which is on deposit which has been deposited $72.00 per month since the time of the appeal. We have been doing actually what we offered to do when we offered to deposit money and ask it for the Court --
Speaker: I thought your claim on indigency was not that couldn't raise the money to pay the rent. It came due month by month that you had no liquid collateral which was a condition preceding to you're being able to get a surety bond, wasn't it?
Francis X. Dineen: That's correct.
Speaker: Wasn't that the indigency issue?
Francis X. Dineen: That's correct Your Honor. We're so indigent --
Hugo L. Black: Well if that's the issue why didn't you have the money which was liquid to put it to court? How could you claim if one debt that you don't have it and pay it into Court?
Francis X. Dineen: We paid only $72.00 a month, we didn't pay the full $360.00 at one time. We were in possession for five months after the time of the appeal. We had offered in our motion to pay $72.00 a month to the clerk. This what was denied at us. We were indigent to the extent that we not that we couldn't pay the rent. We offered to pay the rent. We are indigent to the extent that we couldn't pay the $500.00 for the surety which would have been required in order to put up the surety bond. We could pay our rent monthly --
Hugo L. Black: And needn't to pay $500.00 indigent to put up the money for the rent?
Francis X. Dineen: No, no, Your Honor. That would cover that, if we put up the surety bond that would cover the landlord for that period of time during the pendency of the appeal.
Hugo L. Black: And you had the money to pay that bond just the same as you had the money to put in the Court, did you?
Francis X. Dineen: No, we didn't Your Honor. We didn't have the full amount of the rent. We had the monthly rent. We didn't have the five months rent to put down all at one time. See the surety bond required that we put down in lump. Five times or six times each month's rent. It would be something like $400.00 to $500.00 in lump sum at that time. We didn't have that money. We did have enough money to pay the rent each month on the first of the month or whenever as it came due in the amount of $72.00. Which is what we did and there is now $360.00 available to the landlord. But, that was only -- we are only able to pay $72.00 a month. We weren't unable --
Hugo L. Black: -- able to pay that before he sued you, you wouldn't have to be sued, would you.
Francis X. Dineen: We have defenses Your Honor, regardless whether we pay. We had defenses on the rent. The technicality of Connecticut Law is that you pay on the first according to the lease. We had defenses that there had been and established practice that rent was accepted late. This was a Housing Authority --
Hugo L. Black: How many?
Francis X. Dineen: I beg your pardon Your Honor?
Hugo L. Black: How many?
Francis X. Dineen: Many times the jury depending on the tenant it might be the 10th or the 15th or something like that. Depending on when the tenant had it. This is a Housing Authority. These are low income tax --
Hugo L. Black: Is this the test case?
Francis X. Dineen: I beg your pardon.
Hugo L. Black: Is this no more than a test case?
Francis X. Dineen: No, Your Honor.
Hugo L. Black: Are you really -- do you really have a genuine litigation here?
Francis X. Dineen: Yes, Your Honor because --
Hugo L. Black: Why couldn't they pay the rent?
Francis X. Dineen: He could've pay the rent. The fact was that the action was brought at an early time, as I said on the 5th of May without giving him opportunity to pay the rent for May. In fact, prior to May in April --
Hugo L. Black: Four days?
Francis X. Dineen: I beg your pardon?
Hugo L. Black: Three or four days?
Francis X. Dineen: Three or four days, Your Honor.
Hugo L. Black: You said they decline to take in?
Francis X. Dineen: No, Your Honor, they started the action. They would not take it at that time once they started the action and as I said, to Mr. Justice Stewart. They started the action on the basis of a nuisance because this really was not essentially a nonpayment case. They wanted to evict this tenant originally on the basis of nuisance. But, as we pointed out in our jurisdictional statement, there is a right to a writ of restitution in Connecticut, so that this tenant can get back into the Housing Authority should we win on appeal.
Potter Stewart: Where are the family now? Are they in the housing?
Francis X. Dineen: No, they are not Your Honor. But as we pointed out in our jurisdictional statement Connecticut does allow of writ the restitution, so that we can get back into the Housing Authority, should we win on appeal.
Speaker: I'd like to ask you a question did the proceeding subsequent proceeding, you call it provision or what? If you get any review that any kind of merits of your client?
Francis X. Dineen: No, Your Honor. Not at all.
Speaker: Not at all?
Francis X. Dineen: Not at all.
Speaker: But that was concurring with what?
Francis X. Dineen: The Appellate Division was concerned with the motion to dismiss the appeal and our motion to review the decision of the trial court in denying our motion to waive the surety bond and they dismissed the appeal first day in put up the surety bond.
Warren E. Burger: Thank you Mr. Dineen. Mr. Ahern.
F. Michael Ahern: Mr. Chief Justice and may it please the Court. The State of Connecticut is not a party, a named party to this appeal. However, because of the decision of the West Haven Housing Authority which is the appellee in this case not to further relief or orally argued the issue raised by the appellants in this case. The State of Connecticut filed the motion with this Court for permission to orally argue the issue and the Court graciously granted it. That's why I'm here this morning.
Warren E. Burger: Now, what's the states connection of the Housing Authority?
F. Michael Ahern: The State --
Warren E. Burger: This is a federal?
F. Michael Ahern: The Public Housing Authority is established by both state and federal statute.
Warren E. Burger: This is a joint -- the state's interest is through that --
F. Michael Ahern: And also the state's interest in protecting property owners who have been, shall I say denigrated by the tenants by nonpayment of rent, so that they have their rights to their own property and to the retention of their property. Because of the adverse and disruptive effect on civil process if this appeal is sustained. The State of Connecticut and 14 of her sister States have together entered into a amici curiae brief in this case in support of the appellee's position. This is pursuant to Rule 42, Subsection 4 of the rules to this Court. If I may, in reviewing the file in this case one cannot help but the amaze that the zealous and ambiguous advocacy of the appellant's rights by counsel in the lower courts. In the period between the initial notice to quick possession on July 12, 1967 until the trial on the merits was held on January 9, 1968. Six judges of the Connecticut Circuit Court were called upon to rule on the same number of motions, six motions. The legal maneuvering of counsel for appellants has followed a torturous and very exhausted path through both the state and federal judicial systems. Appellants have their day in Court and the Connecticut Circuit Court and the Appellate Division of the Circuit Court and then the State Supreme Court. Simultaneously, a inaugurated hearings in the United States District Court for the district of Connecticut, the Court of Appeals for the Second Circuit, and finally to this honorable Court this morning. I count 36 separate entries in the file concerning legal action on the part of the appellants. And if I may, I would like to analyze them for you and highlight certain operations and approaches by the appellants. They became tenants of the Housing Authority on November 1, 1966 under a written a lease. A monthly written lease which was renewable each month at the rate of $72.00 per month. The monthly rent was determined by an objective schedule according to their ability to pay. Having withheld payment of the rent for the months of May, June, and July of 1967. The appellants were given a statutory notice to quit the premises on July 12, 1967.
Thurgood Marshall: Well, is -- was the other case pending then?
F. Michael Ahern: The other case has never been dismissed or --
Thurgood Marshall: But was it pending during that three-month period that you say they didn't pay their rent?
F. Michael Ahern: I believe it was Your Honor. In view of the fact --
Thurgood Marshall: Well, is he correct that when a case dispossess the case that pending you don't use the pay rent?
F. Michael Ahern: Your Honor, I don't understand that to be the situation of the initial summary process or the previous summary process action was brought for reasons other than the statutory reasons for summary process.
Thurgood Marshall: Well, why wasn't it carried through?
F. Michael Ahern: I believe it wasn't carry through because the attorneys for the Housing Authority recognized the fact that it wasn't a proper motion and they then had other reasons for bring the summary process action which is the nonpayment of rent.
Thurgood Marshall: Which was brought about by the first action?
F. Michael Ahern: No it would -- they claim it was brought about by the first action.
Thurgood Marshall: Well, that first action. So, then you filed the second one.
F. Michael Ahern: May it please --
Thurgood Marshall: Because now you got a clearly not paying their rent.
F. Michael Ahern: If you please Justice Marshall, this is the claim of the appellant that the second summary process action was brought because of the first one.
Thurgood Marshall: Well, if it's not their claim that you've never withdrawn the first case, still then?
F. Michael Ahern: They have claimed that, yes.
Thurgood Marshall: Was that true?
F. Michael Ahern: Yes, it is.
Thurgood Marshall: Why?
F. Michael Ahern: Since, I am not the Attorney for the West Haven Housing Authority, I can't answer that question, Mr. Marshall.
Thurgood Marshall: Are you defending the real issue?
F. Michael Ahern: I'm defending them as an amicus of filing a brief from behalf of the state of Connecticut.
Thurgood Marshall: Well, you're not responsible for what they did of course, I agree with you.
F. Michael Ahern: But you are right that the action was never withdrawn, the first action.
Thurgood Marshall: And you just don't know?
F. Michael Ahern: The appellant is not having complied with the notice to quit. We're given a statutory -- were asked again to quit and when they refuse a summary process action was instituted in the Circuit Court for the State of Connecticut. That was on July 19, 1967, which was actually five -- three months after the first withholding of the rent. After the preliminary motions were disposed of trial on the merits was had on January 9, 1968, which resulted in judgment for possession for the Housing Authority. Pursuant to Section 52-542 of the Connecticut General Statutes, the appellants instituted an appeal which was promptly filed with the Appellate Division of the Circuit Court of Connecticut. In lieu of the surety bond required by the statute, they attached to their appeal a motion to waive surety bond on the grounds of alleged indigency. After a full hearing in the Court, the same trial judge who had heard the case on the merits earlier denied the motion because he found that the appeal was not taken in good faith but for purposes of delay and obstruction.
Potter Stewart: Now, that's the Judge Dehenzel --
F. Michael Ahern: Dehenzel, yes.
Potter Stewart: Dehenzel and that's justice who is denial on page 23 of this appendix together and the full hearing to which you referred that appears on page 13 to 22 of the appendix. Is that we're talking about?
F. Michael Ahern: Yes, it is Justice Stewart.
Potter Stewart: And the same Judge Dehenzel had decided in favor of the plaintiff landlord?
F. Michael Ahern: A hearing on the merits on January 9, 1968, that's correct.
Potter Stewart: And that I guess it's not in the -- that hearing is not in this appendix, is it not?
F. Michael Ahern: The hearing is not made a part of the transcript to his decision I believe is.
Potter Stewart: The judgment is I get on page seven.
F. Michael Ahern: That's correct, Justice Stewart.
Potter Stewart: Seven or eight, thank you.
William O. Douglas: I can't find that the Court of Appeals of the Appellate Division whatever you call in Connecticut adopted that at on us relied upon that, did they?
F. Michael Ahern: They did -- it is mentioned in the decision of the Court of Appeals or the Appellate Division of the Circuit Court that the lower court found that the action is taken for reasons of delay.
William O. Douglas: Is that one of the reasons that they affirmed?
F. Michael Ahern: That's our position Your Honor that that's the reason they did affirm. The appellants filed a motion for review with the Appellate Division of the Circuit Court from the judge dissenters denial of the motion. And that motion was denied by the Appellate Division and the appeal was dismissed. Thereafter, the appellants filed the petition for certification in the Supreme Court of the State of Connecticut and petition was dismissed or denied. The Housing Authority then moved the Appellate Division of the Circuit Court to terminate the stay of execution which motion was granted. Now concurrently with the state legal activities, the appellants in order to delay their eviction filed an injunction action in the United States District Court for the district of Connecticut. That court in a very lengthy decision dismissed the federal complaint and the decision was promptly appeal to the Court of Appeals for the Second Circuit. The Court of Appeals dismissed the federal complaint as moot on January 10, 1968 and an appeal was taken to this Court, which noted probable jurisdiction on September 7 -- on April 7, 1969. I think it would -- it should emphasize to this point that the Housing Authority finally obtain possession of the premises on July 26, 1968, which was full year after the filing of the summary process action in the Circuit Court in Connecticut and more than 15 months after the tenants decided to withhold the payment of rent to the authority.
Potter Stewart: What's happened to the $360.00?
F. Michael Ahern: I believe it's still in the custody of the clerk of the Court. The Housing Authority has never filed a motion to reach it and the clerk is holding it pending the ultimate determination of this case. In addition to the Zoas Legal Representation provided the appellants by counsel in the lower courts. They have the benefit of extensive briefs by their attorneys and also by several organizations who have filed amici curiae briefs in this Court. The question presented by the appellant's appeal is whether the surety bond requirement of 52-542 of the Connecticut general statutes on an appeal on summary process action is violative of the Fourteenth Amendment to the United States Constitution, the Equal Protection Clause. The Connecticut summary process statute was initially adopted in 1806, prior to that time if a land owner desire to oust the tenant of possession. He was required to file an action in ejectment in the courts which was a slow and expensive procedure. The purpose of the summary process statute was to give the property owner and all to that means of recovering possession of his property from a tenant who was either unable or unwilling to pay his rent. I want to emphasize the Connecticut summary process statute is not a statute of general application. Its applicability is limited to those cases where there is a lease which has terminated either by time or nonpayment of rent or where there is occupation without greater privilege. I also want to emphasize that the property owner utilizing the summary process procedure does not recover rent. He only recovers possession of his property. In order the reach the unpaid rent, he must bring a separate subsequent legal action for money his own.
William O. Douglas: I've read this opinion three times now and I -- maybe I'm just stupid but I don't see any indication that the Court rule that if this appeal have been taken without any suggestion of dilatory tactics, it would been decided differently.
F. Michael Ahern: All I can suggest Justice Douglas is that we read it differently. I think we agree with Justice Harlan in his decision on their motion to suspend execution that --
William O. Douglas: I'm just talking about the opinion of the Appellate Division --
F. Michael Ahern: I realize you are and I -- we read it differently that's all I can --
William O. Douglas: So, sometime could you supply a supplemental memorandum and I don't want to take your time.
F. Michael Ahern: I will be glad to do that.
William O. Douglas: Just underline of the -- marking the lines in the paragraphs in this opinion that possibly indicate that.
F. Michael Ahern: I will do that Justice Douglas.
Hugo L. Black: May I ask you a question about the statement of page 20? In fact it end 25.
F. Michael Ahern: Page 20?
Hugo L. Black: Yes.
F. Michael Ahern: Justice Black?
Hugo L. Black: The court said you told me that to the counsel. I am satisfied that you're, I'm satisfied in all these monkey business as it go in have been successful so far as keeping them in here and not paying any rent. The legislature must have that something in mind when it brought here unless it appears to the judge to find the case that the appeal was taken for the previous of delay. What was he quoting from? Can't find it?
F. Michael Ahern: I can find it Justice Black but I can't find where the quote is taken from.
Hugo L. Black: Here on page 20.
F. Michael Ahern: I find that --
Hugo L. Black: The last paragraph.
F. Michael Ahern: But this appears -- this is the colloquy between attorneys for the plaintiff and the court.
William O. Douglas: It doesn't appear to any of the statutes have decided but there maybe other statutes.
F. Michael Ahern: No, it does not.
Hugo L. Black: But he purported to the reading from the statute.
William O. Douglas: Yes, maybe you could add that --
F. Michael Ahern: Actually, this quotation is taken from the Section 52-542 of the Connecticut Statutes.
Hugo L. Black: That is what you said?
F. Michael Ahern: Yes, if --
Hugo L. Black: Well, unless what?
F. Michael Ahern: Unless, it appears to the judge who tried the case that the --
Hugo L. Black: Well, but what's the premise on which that unless is based?
F. Michael Ahern: That no appeal shall be taken, if I may read the whole sentence, maybe in the context here --
Hugo L. Black: I understand.
F. Michael Ahern: No appeal and this is from the statute.
Hugo L. Black: Alright.
F. Michael Ahern: And I quote it. “No appeal shall be taken except within said period and if an appeal is taken within set period, execution shall be stayed until the final determination of the cause. Unless, it appears to the judge who tried the case that the appeal was taken for the purpose of delay.”
Hugo L. Black: Alright. Now, we have findings here that this was taken for the purpose of delay? Are you arguing that settles the case under that statute?
F. Michael Ahern: Yes, I am.
Hugo L. Black: But why doesn't if that's the statute?
F. Michael Ahern: Why doesn't or why doesn't it?
Hugo L. Black: Why does it not? And you have argue that they made any argument.
William O. Douglas: But I thought this was an Equal Protection Court not whether the things you can state or not?
F. Michael Ahern: Well, this is the --
William O. Douglas: But does the bond should have to be furnished?
Francis X. Dineen: If I may Justice Douglas, this is the position of the appellants.
William O. Douglas: Yes, but I mean --
F. Michael Ahern: We do not feel that there's a substantial federal question involved.
William O. Douglas: I understand that and their some members of the court appeal the same way perhaps. But I'm just trying in the setting the statute, it doesn't say anything about the bond will be required if it's dilatory or not be required if it's not?
F. Michael Ahern: No, it just makes provision for a surety bond in all cases.
William O. Douglas: No, no, it just says it shall be stayed unless it appears? Which is a hardly relevant to the Constitution of process have presented here, is it?
Potter Stewart: That statute Mr. Ahern as Mr. Justice Douglas suggest that if it's the one appearing on page 4 of the appellate brief.
F. Michael Ahern: It is Your Honor.
Potter Stewart: It has nothing at all to do with the requirement of a surety bond, does it? It's nothing.
F. Michael Ahern: It just states that a surety bond shall be required.
Hugo L. Black: Unless?
F. Michael Ahern: Unless it appears who tried the case that the appeal was taken for purpose of delay. In other words, I --
William O. Douglas: No, the unless is modifies the state law.
Potter Stewart: Yes.
William O. Douglas: Not the surety bond? Unless I have a different set of the statutes than you have.
F. Michael Ahern: If you've raised the point that haven't occured to me that's the trouble Mr. Justice Douglas and I'm trying to --
Warren E. Burger: If the stay was entered Mr. Dineen. Would a bond if the court decided this was not for delay, but it was on good faith, could you then stay the execution of the judgment without a bond?
F. Michael Ahern: Yes, he could in our opinion.
Warren E. Burger: Well, that would seem to me to be the crux of the case.
F. Michael Ahern: I think this is where the appellants in the Housing Authority disagreed whether or not the surety bond in all cases must accompany in appeal. Certainly, since this for sole protection of the landlord, the landlord could waive the surety bond requirement we feel and similar --
Byron R. White: The landlord could the Court waive -- did the Court say no bond because the person is indigent and the appeal is in good faith?
F. Michael Ahern: We haven't been able to find the Connecticut case that provides that Justice White. However, we have cited cases and we feel once the matter is before the Court. That the Court could waive the surety bond as long as it provide adequate protection for the landlord.
Byron R. White: The appellant -- do you think the Appellant Division assumed that the waiver of surety bond was permissible that the appeal was in good faith?
F. Michael Ahern: There seems to be language in that decision as I recall it, that would lead me to believe so, yes.
Thurgood Marshall: Mr. Ahern, do you know in Connecticut that the Court waive a close bond should be bond, couldn't it?
F. Michael Ahern: Yes.
Thurgood Marshall: And when those come over here too that seem to say that?
F. Michael Ahern: Justice Marshall, I couldn't say whether they would be appeal to this Court. The way things are going today, I think everything is appealed up here.
Thurgood Marshall: But the problem I really have is why the argument is made by the Appellate Court could not legally waive the surety bond.
F. Michael Ahern: I think that's probably because of the word “shown in the statute” and they're referring to the same that this is the statute under which they have appeal to this Court in which they claim is violative of the Fourteenth Amendment. The bond on appeal and stay of execution.
Thurgood Marshall: Well, do you agree that show means that?
F. Michael Ahern: I think it means to show unless the Court appeals that there are equitable considerations that should be taken into consideration by the Court. Either the Court could use its good offices to have the landlord waive the surety bond requirement which I think can be done -- could be done because the sole purpose of the surety bond is to protect the landlord's interest. Then I think also, that if the Court felt that the circumstances in the particular case warranted. It could probably, it could waive the surety bond requirement as long as some means were provided for the protection of the land owners.
Thurgood Marshall: Well, if you do see of Equal Protection problem it shall mean what it says, don't you?
F. Michael Ahern: That's the crux of this case this morning, I believe Justice Marshall.
Potter Stewart: You don't have and I understand it, you don't have any records on, is that correct? Is that federal --
F. Michael Ahern: We have cases in other jurisdiction which was cited which give the seem to give courts that authority and we feel they apply to this situation also but we do not of any Connecticut authority.
Potter Stewart: The only kind of authority, I guess, is that Appellate Division's opinion in this case, is it?
F. Michael Ahern: It's breaking new ground Justice Stewart, I believe. The West Haven Housing Authority as I stated earlier is a federal and state instrumentality. It set up by state and federal statutes, it's finance by public bond issues and by grants from the United States Department of Housing and Urban Development which controls its operations. The income derived from the tenant rentals is used to meet its obligations to bond holders and to pay the normal continuing operating expenses of the authority. In the defending the summary process action in the trial court, the appellants advanced seven special defenses all of which were procedural and all of which were considered by the trial court and evidently considered meritless. It is obvious from a reading of the first special defense and the trial brief that the reason, the appellants, the tenants determined to withhold payment of rent from the authority was that they were lift because of the previous summary process action instituted by the authority which was not prosecuted to effect. The trial court in entering judgment for possession of the premises expressly found that the appellants had not paid rent for a period of eight months from April 1967 to December of 1967, which was immediately prior to the trial on the merits. And the trial court made the following significant statement in its memorandum of decision, dated January 16, 1968, and I would like to quote it. ”The record in this quick case clearly shows what can happen to a summary proceeding where the process is abused by dilatory tactics, defense is interposed to delay or obstruct the proceeding and every effort made to delay a trial of the case on the merits." That can be found in the record appendix at page 5. Just three days after the above decision was rendered by the trial court, that is on January 19, 1968, the same trial judge heard arguments addressed to the appellant's motion to waive surety bond. After argument, the trial judge found “this appeal is being taken for the purpose of delay and the motion was denied.” But, posting requirements upon the privilege of obtaining judicial relief are found in both the State and federal statutes. And this Courts has consistently held that the Fourteenth Amendment to the Constitution does not prevent a State from proscribing reasonable and appropriate conditions precedent to the seeking of judicial relief in its courts so long as the basis of the distinction is real and the conditions imposed have a reasonable relationship to a legitimate object. Applying this standard to the surety bond provision of Section 52-542 we submit. It is clear that the statute proscribes the reasonable and appropriate conditions with a legitimate object in view. That is the protection of the landowner. We therefore submit that the statute is constitutional on its face.
Byron R. White: Do you think that its on question under the federal -- under the Connecticut statutes that you take any appeal whether frivolous or non frivolous the bond is required?
F. Michael Ahern: In this case, yes. In this context of this case --
Byron R. White: In this case. It is the justice in the question of getting a stay of execution.
F. Michael Ahern: No, we take the position on appeal bond is required.
Byron R. White: And that if the appeal bond is not filed, there is no appeal to this not just to be but that the order of eviction is executed?
F. Michael Ahern: The surety bond is essential to the appeal.
Byron R. White: In any event?
F. Michael Ahern: That's correct.
Byron R. White: But do you think that you -- but you said awhile ago that you thought the --
F. Michael Ahern: Well, I'm talking about the language of the statute at this point. Then the question comes in whether since both law and equity refuse in our court system whether the Court can utilizing equitable considerations itself waive --
Byron R. White: Are you sure that's correct?
F. Michael Ahern: We feel that it could. Yes, Justice White.
Byron R. White: And that it would I think it is unless they --
F. Michael Ahern: In the context of the proper case where the situation is such that the tenant for valid reason has not paid the rent and cannot pay the rent, we think that it would. This case we submit is not a case where --
Byron R. White: He may not pay the rent or put up the bond?
F. Michael Ahern: Pardon me?
Byron R. White: I would suppose the Court will decide if there are some valid reason not or not paying rent for putting up the bond? There are some -- he couldn't afford to put up the bond?
F. Michael Ahern: But he could continue to pay the rent as they claim in this case.
Byron R. White: Yes. Do you think that in such a circumstance the Court could waive the requirement for bond?
F. Michael Ahern: Yes, we do Your Honor. Although, we haven't found any Connecticut citations. We have cited case in other jurisdiction which were seem to hold --
Byron R. White: But certainly cited in the people's statute.
F. Michael Ahern: It's in the tip of the statute as far as its language is concerned, yes Justice White.
Warren E. Burger: The trial judge seems to have at least given some consideration to the idea that he first found that the appeal was taken in good faith and not the purposes of delay, then he would considerably questioned because page question of the paying the alternative of rent into the Court that the top page 22 in your appendix. He says, if they can referring to the execution on the state. Then I won't give any further thought to the alternative plan of substituting the clerk for the legal assistance association to hold the rent in the interim.
F. Michael Ahern: That is correct Your Honor. That evidently is the position of judge Dehenzel of the trial court and we agree with it.
Warren E. Burger: Now, the Appellate Court didn't approach that question?
F. Michael Ahern: I don't think it had to Chief Justice because of the fact that it went along with the finding of the trial court that the action was instituted for purposes of delay.
Warren E. Burger: Well, at least six times by my count here. The trial judge referred affirmatively and not ambiguously at times to the reasons why he thought this appeal was taken for purposes of delay. But as Justice Douglas pointed out that the Appellate Division never mentioned that. I would like -- I would hope when you file the supplemental memorandum that Mr. Justice Douglas suggested that you give us your view of why something which the trial court emphasize somewhat and so often was not referred to by the Appellate Court.
F. Michael Ahern: We will attempt to analyze it to that effect Mr. Chief Justice.
William J. Brennan, Jr.: As I understand Mr. Ahern, you're going to try to demonstrate Justice Jacob's opinion or Judge Jacobs?
F. Michael Ahern: Judge Jacobs.
William J. Brennan, Jr.: And rest itself or address to itself for the state, did you say that?
F. Michael Ahern: Well, if I may say --
William J. Brennan, Jr.: Well, is that what's going to do of --
F. Michael Ahern: Yes, Justice Brennan. Certainly, --
William J. Brennan, Jr.: In other words, you're telling us that we are to read this opinion is not addressed only to whether the appeal have to be dismissed for one rebuttal of law. But also, that the opinion addressed to itself to whether or not a stay were probably denied because the appeal was taken in bad faith?
F. Michael Ahern: That's correct Justice Brennan. Certainly, the plight of the indigent tenants who are unable to pay their bills, elicit the sympathy and compassion of all peoples. However, we submit that some sympathy and compassion should be reserved for the real property owner who must meet his mortgage obligations and other financial obligations or risk, the loss of his property. All landlords are not wealthy and all tenants are not indigent. And most property owners cannot afford the luxury of tenant who was either unwilling or unable to pay his rent.M
Warren E. Burger: I suppose this Housing Authority like most public housing authorities has a waiving list of other poor people who are or claim to be eligible for occupancy here. Is the record show in any --
F. Michael Ahern: Mr. Chief Justice, I don't know if the record shows it but certainly, I think the Court can take judicial notice of the fact that there aren't sufficient housing accommodations for the poor and that there would be a list of people waiting. And further, take notice of the fact that the Housing Authority depends on a tenant's payment of monthly rents in order to meet its obligation to bond holders and its obligations to and its financial obligations in the continuing operation of the authority.
Thurgood Marshall: I still have big difficulty on the landlord in all when they paid this $72.00 a month into Court. It's all the landlord was entitled to? It was in Court And any --
F. Michael Ahern: If I may --
Thurgood Marshall: -- they fail to pay it, they loss everything.
F. Michael Ahern: Mr. Justice Marshall, I think the record will show that the offer to make payment into Court was made at the time the hearing was held on the motion to waive surety bond which was nine months after they stopped paying rent. The offer was to pay current rents into the Court not be back nine months which they had not paid.
Thurgood Marshall: Well, then am I wrong that if that stage, if they put up a surety bond they didn't have to pay their nine months behind, did they?
F. Michael Ahern: Not in summary process action. A separate action would have been brought by the landlord.
Thurgood Marshall: Well, that's what I'm saying as of this. The alternative the surety bond or $72.00 a month into Court.
F. Michael Ahern: That's correct.
Thurgood Marshall: And the -- was solely for the protection of the landlord.
F. Michael Ahern: Correct.
Thurgood Marshall: And why did he had ever surety bond when he was sure of his rent -- $72.00 a month?
F. Michael Ahern: Why would he have to? I believe the reason the Court would not accept the recommendation of the Attorneys for the appellants was the fact and I think the court asked the direct question of one of the Attorneys whether they would make payment of the nine months in arrears and they said they would not. They would only take care of the future in rental payments.
Thurgood Marshall: Well, they didn't -- with the surety bond wouldn't call that nine months in arrears either?
F. Michael Ahern: No, it would not.
Thurgood Marshall: Well, so far is that particular point to nine months are arrears is out of the picture?
F. Michael Ahern: Well, I think these all comes in to the fact that the trial judge found that there dilatory tactics used because normally for summary process action takes considerably less than seven months to have a hearing on the merits.
Thurgood Marshall: Oh, I see them less then two hours.
F. Michael Ahern: Well, not in Connecticut that they have a hearing in Connecticut, the full hearing on the merits, Justice Marshall.
Thurgood Marshall: I see.
F. Michael Ahern: I have nothing --
Potter Stewart: Mr. Ahern, do you think the action of the Appellate Division of the Circuit Court of April 11, 1968 appearing on page 66 of the appendix, throws any lie upon the question in which Mr. Justice Douglas and the Chief Justice expressed an interest? That is whether or not the Appellate Division decided the case on the quite absolute and inflexible basis or whether if adopted the part at least the reasoning of the trial court?
F. Michael Ahern: Well, certainly on page 67, the paragraph which starts on that page. They mentioned that they briefly review the proceedings in the court below. And I would assume that the review of those proceedings, eventhough they don't might not mentioned it here, would take into consideration of the activities in the court below and the finding of the trial judge. Certainly, the Appellate Division had the trial judgment or memorandum of decision before at the time that reviewed the case.
Potter Stewart: This owner here has to do with finally the vacation of the stay of execution, is it not? The one appearing on page 67?
F. Michael Ahern: Yes, it does Your Honor.
Potter Stewart: And they do review in some length the Appellate Court what they refer to as dilatory instructions?
F. Michael Ahern: That is correct. On page 67 and thereafter actually.
Warren E. Burger: At 69 in the opinion, the Appellate Court also notes apparently with some emphasize as I read it to upon the review of the whole matter. Suppose, depending on what author meant by the whole matter -- the finding of the trial judge on the lack of good faith to becomes more or less important, might as positive?
F. Michael Ahern: I would trust that the statement of the trial judge would be given as widest application in that connection, Mr. Chief Justice.
Warren E. Burger: Thank you Mr. Ahern.
F. Michael Ahern: Thank you very much.
Warren E. Burger: The case is submitted. Thank you gentlemen for your submission.