On petition for writ of certiorari to the United States Court of
Appeals for the Eighth Circuit.
Kenneth ALEXANDER v. TEXAS et al. 82-6907.
On petition for writ of certiorari to the Court of Criminal
Appeals of Texas.
Nancy Jewell CROSS v. SECRETARY OF STATE. 82-6956.
Richard T. ENO et al. v. UNITED STATES DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT et al. 83-5040.
On petition for writ of certiorari to the United States Court of
Appeals for the First Circuit.
David L. LINFIELD v. BOARD OF HIGHER EDUCATION OF the CITY OF
NEW YORK. 83-5100. [ Brown v. Herald Co., Inc.
464
U.S. 928 (1983) ][928-Continued.]
On petition for writ of certiorari to the United States Court of
Appeals for the Second Circuit.
Alice MILLER v. Samuel R. PIERCE, Jr., Secretary of Housing and
Urban Development, et al. 83-5349.
On petition for writ of certiorari to the United States Court of
Appeals for the Ninth Circuit.
The motions of petitioners and appellant for leave to proceed in
forma pauperis are denied. Petitioners and appellant are allowed
until November 21, 1983, within which to pay the docketing fee
required by Rule 45(a) and to submit petitions and a jurisdictional
statement in compliance with Rule 33 of the Rules of this
Court.
Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN
join, dissenting.
In each of these cases, the Court has denied petitioner's or
appellant's motion to proceed in forma pauperis without initially
addressing the issue whether the questions presented in the
petition for certiorari or jurisdictional statement merit our
plenary review-and the Court is apparently announcing today that
this will
Page 464 U.S.
928 , 929
be our practice in the future. [
Footnote 1] At a time when at least some of us proclaim
that we are sorely pressed for adequate time to do our work, this
treatment is both unfair and wasteful, and I respectfully
dissent.
Ordinarily, a $200 filing fee must be paid before a petition for
certiorari or a jurisdictional statement, properly conforming to
the requirements of Supreme Court Rule 33, may be filed. Supreme
Court Rule 46. However, 28 U.S.C. 1915 provides that "[a]ny court
of the United States may authorize the commencement, prosecution or
defense of any suit, action or proceeding, civil or criminal, or
appeal therein, without payment of fees and costs or security
therefor, by a person who makes affidavit that he is unable to pay
such costs or give security therefor." Supreme Court Rule 46, which
implements this statute, provides that "[a] party desiring to
proceed in this Court in forma pauperis shall file a motion for
leave to so proceed, together with his affidavit in the form
prescribed in Fed.Rules App.Proc., Form 4 . . . setting forth with
particularity facts showing that he comes within the statutory
requirements." 2 If the motion is granted, no filing fee is charged
and a single typewritten petition or jurisdictional statement may
be filed.
Each year, roughly 1,000 motions supported by affidavit are made
for leave to proceed in forma pauperis. [
Footnote 3] These motions usually accompany a petition
for a writ of certiorari or a jurisdictional statement, and our
practice heretofore has almost always been not to pass on the in
forma pauperis motion but to proceed directly to grant or deny the
petition based on the merits of the questions presented in the
petition or statement. Yet in the instant cases, each of which
presents questions so lacking in merit as to have virtually no
chance of receiving a plenary hearing, the Court has chosen instead
to focus initially on the affidavits supporting the in forma
pauperis motions and to deny the motions.
Page 464 U.S.
928 , 930
This practice simply postpones the determination of the merits
of the questions presented until after deficiencies in the in forma
pauperis motion are corrected or the filing fee is paid. That
approach multiplies our work to no purpose.
I cannot concur in this treatment. Not only does the Court fail
to provide the parties with any guidance as to how their affidavits
may be considered in the future, it also prescribes no standards by
which litigants and those screening the motions may determine when
an individual is sufficiently poor to warrant a grant of in forma
pauperis status. The only statement the Court has ever made on this
subject is that an affiant must show he is unable to " 'pay or give
security for the costs . . . and still be able to provide' himself
and dependents 'with the necessities of life.' " Adkins v. DuPont
Co.,
335
U.S. 331, 339, 89 (1948). This is hardly a meaningful standard;
it indeed suggests that a wide array of factors must be considered
before ruling on a motion.
4
But, even with an articulated set of standards against which to
make decisions, under today's procedure we lose, not gain.
Certainly that should be clear to those of us who perceive that we
engage in a never- ending struggle to find time needed for
important work. The likely result of disposing of cases as the
Court does today will be to encourage parties bringing these
motions to resubmit their petitions or appeals with a new affidavit
they hope will strike a more sympathetic chord-thus increasing the
time we must spend to dispose of frivolous cases. Where it is clear
that the merits involved are almost certainly insufficient to
demand full review (as has been our experience in all but a handful
of in forma pauperis cases each year) no purpose is served by
indulging in that waste. It is important that we try to avoid the
waste of the parties' time, but perhaps even more important that
this Court's
Page 464 U.S.
928 , 931
time not be used in this unnecessary exercise. As Justice
STEVENS has stated in a similar context, "given the volume of
frivolous, illegible, and sometimes unintelligible petitions that
are filed in this Court, our work is facilitated by the practice of
simply denying certiorari once a determination is made that there
is no merit to the petitioner's claim." Davis v. Jacobs,
454 U.S.
911, 914, 419 ( 1981) (STEVENS, J., opinion respecting denial
of certiorari). What possible justification can support the
scrutiny of 1,000 affidavits in support of in forma pauperis
motions each year? Except, perhaps, in cases of extreme abuse,5
where a petition or appeal wholly lacks merit, we surely benefit
all concerned by relying on that reason for disposing finally of
the case. Our time certainly can be spent in more productive effort
than the determination of whether a petitioner or appellant is able
to pay $200 plus the cost of printing and still provide himself and
his dependents with the necessities of life.
Justice STEVENS, dissenting.
Although I agree with Justice BRENNAN that we should simply deny
unmeritorious certiorari petitions without scrutinizing the
petitioner's right to proceed in forma pauperis, I would not grant
any such petition without making sure that the petitioner is unable
to pay the required costs. If such examination disclosed the kind
of disrespect for our rules that has motivated the Court's unusual
action in these cases, I would deny the petition even if it would
otherwise have merited review. That would remove any incentive a
petitioner might otherwise have to seek in forma pauperis status
although ineligible for such status, without requiring the Court to
assume the burden of examining every motion for leave to proceed in
forma pauperis. In borderline cases the petitioner should, of
course, be given an opportunity to pay the required costs before
final action is taken on his application. I see no purpose,
however, in insisting that these petitioners-none of whom is
represented by counsel who could advise them that their petitions
stand no chance of being granted-pay a fee for the privilege of
having their petitions denied.
Footnotes
Footnote 1 This new
procedure emerged last Term, when in several instances the Court
denied parties' motions to proceed in forma pauperis because the
parties were deemed either not to be sufficiently poor or to have
failed to file adequate affidavits.
Footnote 2 Rule 46 further
provides that "if the district court or the court of appeals has
appointed counsel under the Criminal Justice Act of 1964, as
amended, the party need not file an affidavit."
Footnote 3 Approximately
1,000 additional motions are filed in which Rule 46 does not
require an affidavit.
Footnote 4 I note in passing
that Form 4 of the Federal Rules of Appellate Procedure does not
even call for a description of the debts of the affiant ; nor does
it call for the affiant's age; nor does it call for an indication
of the cost of living in the affiant's place of residence. Hence, I
doubt that the Court could successfully develop standards based on
the information currently available.
Furthermore, it is no answer that there is a wide range of
motions, such as motions for extensions of time, that the Court
decides without the aid of explicit standards. Motions to proceed
in forma pauperis are a special case since they will determine
whether an individual gains access to this Court.
Footnote 5 See, e.g.,
Unterthiner v. Desert Hospital District Of Palm Springs, ___ U.S.
___, 77 L.Ed.2d ___ (1983) No. 82-6765 ( approximately $1,000,000
net assets, $2,500 salary per month, and four dependents).
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