GINSBURG, J., DISSENTING
KOWALSKI V. TESMER
543 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NO. 03-407
JOHN F. KOWALSKI, JUDGE, 26TH JUDICIAL CIR- CUIT
COURT OF MICHIGAN, et al., PETI- TIONERS
v. JOHN C.
TESMER et al.
on writ of certiorari to the united states court of
appeals for the sixth circuit
[December 13, 2004]
Justice Ginsburg, with whom
Justice Stevens and Justice Souter join, dissenting.
Plaintiffs-respondents Arthur M.
Fitzgerald and Michael D. Vogler are Michigan attorneys who have
routinely received appointments to represent defendants in
state-court criminal appeals, including appeals from plea-based
convictions. They assert third-party standing to challenge a state
law limiting an indigent’s right to counsel: As codified in Mich.
Comp. Laws Ann. §770.3a(1) (West 2000), the challenged law
prescribes that most indigents
“who plea[d] guilty, guilty but mentally ill, or
nolo contendere shall not have appellate counsel appointed for
review of the defendant’s conviction or sentence.”
The attorneys before us emphasize that indigent
defendants generally are unable to navigate the appellate process
pro se. In view of that reality, the attorneys brought
this action under 42 U. S. C. §1983, to advance indigent
defendants’ constitutional right to counsel’s aid in pursuing
appeals from plea-based convictions.
“Ordinarily,” attorneys Fitzgerald and Vogler
acknowledge, “one may not claim standing … to vindicate the
constitutional rights of [a] third party.”
Barrows v.
Jackson,
346 U. S. 249, 255
(1953). The Court has recognized exceptions to the general rule,
however, when certain circumstances combine: (1) “The litigant
[has] suffered an ‘injury in fact,’ … giving him or her a
‘sufficiently concrete interest’ in the outcome of the issue in
dispute”; (2) “the litigant [has] a close relation to the third
party”; and (3) “there [exists] some hindrance to the third party’s
ability to protect his or her own interests.”
Powers v.
Ohio,
499
U. S. 400, 411 (1991) (quoting
Singleton v.
Wulff,
428
U. S. 106, 112 (1976)). The first requirement is of a different
order than the second and third, for whether a litigant meets the
constitutional prescription of injury in fact determines whether
his suit is “a case or controversy subject to a federal court’s
Art. III jurisdiction.”
Ibid. By contrast, the close
relation and hindrance criteria are “prudential considerations,”
Secretary of State of Md. v.
Joseph H. Munson
Co., 467 U. S.
947, 955 (1984), “judge made rule[s] … fashion[ed] for our own
governance,”
id., at 972 (Stevens, J., concurring).
Our precedent leaves scant room for doubt that
attorneys Fitzgerald and Vogler have shown both injury in fact, and
the requisite close relation to indigent defendants who seek the
assistance of counsel to appeal from plea-based convictions. I
conclude, as well, that those attorneys have demonstrated a
formidable hindrance to the indigents’ ability to proceed without
the aid of counsel.
As to injury in fact, attorneys Fitzgerald and
Vogler alleged in their complaint that Mich. Comp. Laws Ann.
§770.3a would cause them direct economic loss because it will
“reduc[e] the number of cases in which they could be appointed and
paid as assigned appellate counsel.” App. 16a. This allegation is
hardly debatable. The Michigan system for assigning appellate
attorneys to indigent defendants operates on a strict rotation.
With fewer cases to be assigned under the new statute, the pace of
the rotation would slow, and Fitzgerald and Vogler, who are on the
rosters for assignment, would earn less for representation of
indigent appellants than they earned in years prior to the cutback
on state-funded appeals.[
Footnote
1]
In
Singleton v.
Wulff,
428
U. S. 106, two physicians challenged state restrictions imposed
on funding for abortions. Eight Members of this Court determined
that the physicians had adequately alleged concrete injury: “If the
physicians prevail[ed] in their suit … they [would] then receive
payment … . [and t]he State (and Federal Government) [would]
be out of pocket by the amount of the payments.”
Id., at
113; see
id., at 122–123 (Powell, J., concurring as to
injury in fact). Inescapably, the same reasoning applies to
attorneys Fitzgerald and Vogler. They have alleged their past,
state-paid representation of indigent defendants in appeals from
plea-based convictions, and their aim to continue such
representation in the future. As in
Singleton, they will
suffer injury “concrete and particularized[,] … actual or imminent,
not conjectural or hypothetical,”
Friends of Earth, Inc.
v.
Laidlaw Environmental Services (TOC), Inc.,
528 U. S. 167, 180
(2000), if Michigan’s statute holds sway. See generally R. Fallon,
D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal
Courts and the Federal System 177–178, and n. 5 (5th ed.
2003).
Nor, under our precedent, should attorneys
Fitzgerald and Vogler encounter a “close relation” shoal. Our prior
decisions do not warrant the distinction between an
“
existing” relationship and a “
hypothetical”
relationship that the Court advances today.
Ante, at 5.
See,
e.g.,
Carey v.
Population Services
Int’l,
431 U.
S. 678, 683 (1977) (corporate distributor of contraceptives
could challenge state law limiting sale of its products, “not only
in its own right but also on behalf of its
potential
customers” (emphasis added));
Griswold v.
Connecticut, 381 U. S. 479, 481
(1965) (noting that in
Pierce v.
Society of
Sisters, 268 U. S. 510 (1925), “the owners of
private schools were entitled to assert the rights of
potential pupils and their parents,” and in
Barrows, “a white defendant … was allowed to raise … the
rights of
prospective Negro purchasers” (emphases
added)).
Without suggesting that the timing of a
relationship is key, the Court’s decisions have focused on the
character of the relationship between the litigant and the
rightholder. See
Munson, 467 U. S., at 973 (Stevens, J.,
concurring) (propriety of third-party standing depends on “the
nature of the relationship”).
Singleton, for example,
acknowledged the significant bond between physician and patient.
See 428 U. S., at 117 (plurality opinion) (“[T]he physician is
uniquely qualified to litigate the constitutionality of the State’s
interference with, or discrimination against, [the abortion]
decision.”).[
Footnote 2]
Similarly, this Court has twice recognized, in the third-party
standing context, that the attorney-client relationship is of
“special consequence.” See
Caplin & Drysdale,
Chartered v.
United States, 491 U. S. 617, 623–624,
n. 3 (1989);
Department of Labor v.
Triplett,
494 U. S. 715, 720
(1990).[
Footnote 3] Moreover,
the Court has found an adequate “relation” between litigants
alleging third-party standing and those whose rights they seek to
assert when nothing more than a buyer-seller connection was at
stake. See
Carey, 431 U. S., at 683;
Craig v.
Boren, 429 U. S. 190, 195 (1976).
Thus, as I see it, this case turns on the last
of the three third-party standing inquiries, here, the existence of
an impediment to the indigent defendants’ effective assertion of
their own rights through litigation. I note first that the Court
has approached this requirement with a degree of elasticity. See
id., at 216 (Burger, C. J., dissenting) (males between the
ages of 18 and 21 who sought to purchase 3.2% beer faced no serious
obstacle to asserting their own rights). The hindrance faced by a
rightholder need only be “genuine,” not “insurmountable.”
Singleton, 428 U. S., at 116–117 (plurality opinion); see
also
Munson, 467 U. S., at 956 (“Where practical obstacles
prevent a party from asserting rights on behalf of itself … the
Court has recognized [third-party standing].”). Even assuming a
requirement with more starch than the Court has insisted upon in
prior decisions, this case satisfies the “impediment” test.
To determine whether the indigent defendants
are impeded from asserting their own rights, one must recognize the
incapacities under which these defendants labor and the complexity
of the issues their cases may entail. According to the Department
of Justice, approximately eight out of ten state felony defendants
use court-appointed lawyers. U. S. Dept. of Justice, Bureau of
Justice Statistics, C. Harlow, Defense Counsel in Criminal Cases 1,
5 (Nov. 2000), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/dccc.pdf (all Internet
materials as visited Dec. 8, 2004, and available in Clerk of
Court’s case file). Approximately 70% of indigent defendants
represented by appointed counsel plead guilty, and 70% of those
convicted are incarcerated.
Id., at 6, (Tables 10–11). It
is likely that many of these indigent defendants, in common with
68% of the state prison population, did not complete high school,
U. S. Dept. of Justice, Bureau of Justice Statistics, C. Harlow,
Education and Correctional Populations 1 (Jan. 2003), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/ecp.pdf, and many lack the
most basic literacy skills, U. S. Dept. of Ed., National Center for
Education Statistics, Literacy Behind Prison Walls xviii, 10, 17
(Oct. 1994) (NCES 1994–102), available at
http://nces.ed.gov/pubs94/94102.pdf. A Department of Education
study found that about seven out of ten inmates fall in the lowest
two out of five levels of literacy—marked by an inability to do
such basic tasks as write a brief letter to explain an error on a
credit card bill, use a bus schedule, or state in writing an
argument made in a lengthy newspaper article.
Id., at 10,
app. A (Interpreting the Literacy Scales). An inmate so handicapped
surely does not possess the skill necessary to pursue a competent
pro se appeal.
These indigent and poorly educated defendants
face appeals from guilty pleas often no less complex than other
appeals. An indigent defendant who pleads guilty may still raise on
appeal
“constitutional defects that are irrelevant to his
factual guilt, double jeopardy claims requiring no further factual
record, jurisdictional defects, challenges to the sufficiency of
the evidence at the preliminary examination, preserved entrapment
claims, mental competency claims, factual basis claims, claims that
the state had no right to proceed in the first place, including
claims that a defendant was charged under an inapplicable statute,
and claims of ineffective assistance of counsel.”
People
v.
Bulger, 462 Mich. 495, 561, 614 N. W. 2d 103,
133–134 (2000) (Cavanagh, J., dissenting) (citations omitted).
The indigent defendant pursuing
his own appeal must also navigate Michigan’s procedures for seeking
leave to appeal after sentencing on a guilty plea. Michigan’s
stated Rule requires a defendant to file an application for appeal
within 21 days after entry of the judgment. Mich. Rule App. Proc.
7.205(A) (2004). The defendant must submit five copies of the
application “stating the date and nature of the judgment or order
appealed from; concisely reciting the appellant’s allegations of
error and the relief sought; [and] setting forth a concise argument
… in support of the appellant’s position on each issue.” Rule
7.205(B)(1). The State Court Administrative Office has furnished a
three-page form application accompanied by two pages of
instructions for defendants seeking leave to appeal after
sentencing on a guilty plea. But this form is unlikely to provide
adequate aid to an indigent and poorly educated defendant. The form
requires entry of such information as “charge code(s), MCL
citation/PACC Code,” asks the applicant to state the issues and
facts relevant to the appeal, and then requires the applicant to
“state the law that supports your position and explain how the law
applies to the facts of your case.” Application for Leave to Appeal
After Sentencing on Plea of Guilty or Nolo Contendere,
http://courts.michigan.gov/scao/courtforms/appeals/ cc405.pdf (rev.
Oct. 2003). This last task would not be onerous for an applicant
familiar with law school examinations, but it is a tall order for a
defendant of marginal literacy.[
Footnote 4]
The Court, agreeing with Judge Rogers’ dissent
from the en banc Sixth Circuit decision, writes that recognizing
third-party standing here would allow lawyers generally to assert
standing to champion their potential clients’ rights.
Ante, at 8, n. 5. For example, a medical malpractice
attorney could challenge a tort reform statute on behalf of a
future client or a Social Security lawyer could challenge new
regulations.
Ibid.; Tesmer v.
Granholm,
333 F. 3d 683, 709–710 (CA6 2003) (en banc). In such cases,
however, in marked contrast to the instant case, the persons
directly affected—malpractice plaintiffs or benefits
claimants—would face no unusual obstacle in securing the aid of
counsel to attack the disadvantageous statutory or regulatory
change. There is no cause, therefore, to allow an attorney to
challenge the benefit- or award-reducing provision in a suit
brought in the attorney’s name. The party whose interests the
provision directly impacts can instead mount the challenge with the
aid of counsel.
This case is “unusual because it is the
deprivation of counsel itself that prevents indigent defendants
from protecting their right to counsel.” Brief for National
Association of Criminal Defense Lawyers et al. as
Amici
Curiae 17. The challenged statute leaves indigent criminal
defendants without the aid needed to gain access to the appellate
forum and thus without a viable means to protect their rights. Cf.
Evitts v.
Lucey,
469 U. S. 387, 393
(1985) (“[T]he services of a lawyer will for virtually every layman
be necessary to present an appeal in a form suitable for appellate
consideration on the merits.”).
The Court is “unpersuaded by the attorneys’
‘hindrance’ argument,”
ante, at 7, in the main, because it
sees a clear path for Fitzgerald and Vogler: They could have
“attend[ed] state court and assist[ed] [indigent defendants.]”
Ibid. Had the attorneys taken this course, hundreds,
perhaps thousands, of criminal defendants would have gone
uncounseled while the attorneys afforded assistance to a few
individuals. In order to protect the rights of
all
indigent defendants, the attorneys sought prospective classwide
relief to prevent the statute from taking effect. See Tr. of Oral
Arg. 41 (“The problem was we had to file this litigation before the
statute went into effect because once the statute went into effect,
thousands of Michigan indigents would be denied the right to
counsel every year and would suffer probably irreparable damage to
their right to appeal.”).
This case implicates none of the concerns
underlying the Court’s prudential criteria. The general prohibition
against third-party standing “ ‘frees the Court not only from
unnecessary pronouncement on constitutional issues, but also from
premature interpretations of statutes in areas where their
constitutional application might be cloudy,’ and it assures the
court that the issues before it will be concrete and sharply
presented.”
Munson, 467 U. S., at 955 (citation omitted)
(quoting
United States v.
Raines,
362 U. S. 17, 22 (1960)).
Attorneys Fitzgerald and Vogler have “properly … frame[d] the
issues and present[ed] them with the necessary adversarial zeal,”
467 U. S., at 956, and whether the indigent defendants whose rights
they assert are entitled to counsel is a question fully ripe for
resolution.[
Footnote 5]
The Court concludes that the principle of
Younger v.
Harris, 401 U. S. 37 (1971), “is an additional
reason to deny the attorneys third-party standing.”
Ante,
at 8. Whether a federal court should abstain under
Younger
is, of course, distinct from whether a party has standing to sue.
See 401 U. S., at 41–42 (dismissing three appellees on standing
grounds before addressing the abstention question).
Younger “[has] little force in the absence of a pending
state proceeding.”
Steffel v.
Thompson, 415 U. S. 452, 462
(1974) (quoting
Lake Carriers’ Assn. v.
MacMullan, 406 U. S. 498, 509
(1972)). “When no state criminal proceeding is pending at the time
the federal complaint is filed, federal intervention does not
result in duplicative legal proceedings or disruption of the state
criminal justice system; nor can federal intervention, in that
circumstance, be interpreted as reflecting negatively upon the
state court’s ability to enforce constitutional principles.” 415 U.
S., at 462; accord
Doran v.
Salem Inn, Inc.,
422 U. S. 922,
930 (1975). Attorneys Fitzgerald and Vogler filed this suit before
the Michigan statute took effect. At that time,
no state
criminal proceeding governed by the statute existed with which this
suit could interfere.[
Footnote
6]
In sum, this case presents an unusual if not
unique case of defendants facing near-insurmountable practical
obstacles to protecting their rights in the state forum: First, it
is the deprivation of counsel itself that prevents indigent
defendants, many of whom are likely to be unsophisticated and
poorly educated, from protecting their rights; second, the
substantive issues that such defendants could raise in an appeal
are myriad and often complicated; and third, the procedural
requirements for an appeal after a guilty plea are not altogether
indigent-user friendly. The exposure of impecunious defendants to
these access-to-appeal blockages in state court makes the need for
this suit all the more compelling.
***
For the reasons stated, I would
affirm the en banc Sixth Circuit decision that attorneys Fitzgerald
and Vogler have standing to maintain the instant action and would
proceed to the merits of the controversy.
Footnote 1
True, in several cases in which third-party
standing was upheld on the basis of economic injury, the law in
question proscribed conduct in which the challenger sought to
engage. See,
e.g.,
Craig v.
Boren,
429 U. S. 190, 192–194 (1976) (beer
vendor prohibited from selling 3.2% beer to males aged 18–21). Our
decisions confirm, however, that a plaintiff’s exposure to an
enforcement action is not essential to an injury-in-fact
determination. See
Singleton v.
Wulff, 428
U. S. 106 (1976);
Pierce v.
Society of
Sisters, 268 U. S. 510 (1925).
Footnote 2
There can be little doubt that the plurality
in
Singleton would have recognized third-party standing
even if the physicians had just opened their clinic at the time
they commenced suit.
Footnote 3
Conn v.
Gabbert, 526 U. S. 286 (1999),
see
ante, at 4, is not instructive. There, the
plaintiff-attorney failed to assert his own injury in fact, 526 U.
S., at 289–292, and thus,
a fortiori, could not assert
third-party standing,
id., at 292–293.
Footnote 4
The rare case of an unusually effective
pro se defendant is the exception that proves the rule:
The Court identifies three Michigan defendants who pursued
right-to-counsel claims
pro se.
Ante, at 6. The
fact that a handful of
pro se defendants has brought
claims shows neither that the run-of-the-mine defendant can
successfully navigate state procedures nor that he can effectively
represent himself on the merits.
Footnote 5
Considerations of economy—the parties have
fully briefed and argued this case—also favor reaching the
merits.
Footnote 6
I agree with the Court that
Younger
would force the
indigent defendants to pursue their claims
in state court, as
Younger has a stricter impediment
requirement than the third-party standing doctrine.
Younger v.
Harris,
401 U. S. 37, 53 (1971) (requiring
“extraordinary circumstances” before allowing federal
intervention).
Comments
Be the first to comment
Leave a Comment