# Amicus Curiae Brief — Walters v. National Assn. of Radiation Survivors

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0338%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1985
- **Citation:** 473 U.S. 305

## Text

G)) FILED
: FEB 13 1985

Case No. 84-571
DER L STEVASs

SUPREME COURT OF THE UNITED yore
CLERK
October Term 1984

HARRY N. WALTERS, Administrator of the
Veterans Administration, et ale,

Appellants,
VSe
NATIONAL ASSOCIATION OF RADIATION
SURVIVORS, 2a California non-profit
corporation, et Ble,

Appellees,

and THE AMERICAN G.I. FORUM, 2@ National
non-profit corporation,

Intervenor-Appellee.

On Direct Appeal from

The United States District Court for
The Northern District of California

Amicus Curise Brief of Andrew Groza
In Support of Appellee

JAMES JOSEPH LYNCH, JR.
Attorney at Law
P.O. Box 15766

Sacramento, CA 95852
(916) 924-9382

Attorney for
Amicus Curiae
ANDREK GROZA

an,

Case No. 84-571
SUPREME COURT OF THE UNITED STATES

October Term i984

HARRY N. WALTERS, Administrator of the
Veterans Administration, et al.,

Appellants,
VSe
NATIONAL ASSOCIATION OF RADIATION
SURVIVORS, a California non-profit
corporation, et ale»,

Appellees,

and THE AMERICAN G.I. FORUM, a National
non-profit corporation,

Intervenor-Appellee.

On Direct Appeal from

The United States District Court for
The Northern District of Celifornia

Amicus “urise Brief of Andrew Groza
In Support of Appellee

JAMES JOSEPH LYNCH, JR.
Attorney at Law
P.O. Box 15766

Sacramento, CA 95852
(916) 924-9382

Attorney for
Amicus Curize
ANDREW GROZA

Table of Contents

Table of Contents «+ + «+ «+ «© #¢ # «

Table of Authorities «+ «+ + «+ + « (ii)

INTEREST OF AMICUS CURTAE

° J e

SUMMARY OF ARGUMENT . + + + © @ ¢@

ARGUMENT « «© © © © © © © © © @ *

I
Il

IV

CONCLUSION .

STARE DECISIS IS NOT CONTROLLING

STANDARDS OF CONSTITUTIONAL
CONSTRUCTION « «+ «© © © © @ *

VETERANS’ HAVE A FIRST AMEND-
MENT RIGHT TO REDRESS GRIEVANCES

38 U.S.C. 3404(c) IMPERMISSIBLY
INHIBITS A VETERAN’S CHOXCE OF
COUNSEL . . . . a J e . e ® °

>
2
*
bd
*
-
dl
7
*
7

SIGNATURE ° ° ° ° ° * . * J e *

FOOTNOTES «+ + + + © © © © @ © @ *

APPENDIX
MAGNA CHARTA OF 1215

(i)

Table of Authorities

CASES

Adams vs. Storey
1 Paine (U.S) 79>,

i Fed.Case. p@a 66 (1817) 7

Bank of United States vs- Deveaux
5 Cranch (9 U.S.) 61,
3 L.Ed. 38 (1809) 7

Barton ve Geiler,
108 U.S. 161, 2 S.Ct. 387,

27 L.Ed. 687 é

Brotherhood of R:Te ve Yirginia
377 U.Ss 1, 94 S.Ct. 1113, 12 L.Ed.
2d B89, 11 AwL«ReBd 1196 (1964) 9

utz ve Economou,
438 U.S. 478, 98 S.Ct. 2894,

57 L.Ed.2d 895 (1978) 22

California Motor Transportation Ca»
ve Trucking Unlimited,
404 U.S. 508, 92 S.Ct. 409,
30 L.Ed.2d 642 (1972) 9

Dred Scett vy» Sanford
60 U.S. (19 How.) 393,
15 L.Ed. 691 (1857) 22

Eastern RR. Presidents Conf. ve
Noerr Motors Ereight
365 U.S. 127, 81 S.Ct. 523,
5 L.Ed.2d 464 (1961) 9

Gendron v+ Levi
423 U.S. 802, 96 S.Cte P>
46 L.Ed.2d 23 (1975) 5

(ii)

Motors Corp. v» City of New York

501 F.2d 639 (2nd Cire, 1974) 15
ve Ogden
22 U.S- (9 Weat.?) 1,
6 L.Ed. 23 (1824) 8
Goldberg ye

Kelly
397 U.S. 254, 90 S.Ct. 1011,
25 L.Ed.2d 287 (1970) 12, 13, 16, 17

ve Veterans” inist
415 U.S. 391, 94 SeCte. 1177,
39 L.Ed.2d 412 (1974) 9

ve Lowers
305 U.S. 85, 59 S.Ct. 31,

83 L.Ed. 56 (1938) 17
ve VeAs
444 F.2d 192 (3rc Cire, 1971) 17

v» United States,
352 F. Supp. 175 (S.D. Oh. 1972),
afm’d w/o op. 477 F.2d 690
(6th Cir.), cert. dem.
414 U.S. 1023 (1973) 21

Tool Co. vy» Transworld Airlines»
409 U.S. 363, 93 S.Ct. 647,
34 L.Ed.2d 577 21

+ Wright,
430 U.S 651, 97 S.Ct. 1401,
Si L.Ed.2d 711 (1977) 19

vy» Robison
415 U.S. 361, 94 S-Ct. 1160,

39 L.Ed.2d 389 (1974) 9, 13, 14
Locke yS+ New Orleans

4 Wall (71 U.S.) 172,

18 L.Ed. 482 (1866) 8

(iii)

’ BEST AVAILABLE COPY

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR
HARD COPY AT THE TIME OF FILMING.
IF AND WHEN A BETTER COPY CAN BE
OBTAINED, A NEW FICHE WILL BE
ISSUED.

Lunch v» States,
292 U.S. 571, 54 S.Ct. 840,
78 L.Ed. 1434 (1934)

Margolin v. United States
269 U.S. 93, 46 S.Ct. 64,
70 L.Ed. 176 (1925)

Mathews v» Eldrige
424 U.S. 319, 96 S.Ct. 893,
47 L.Ed.2d4 18 (1973)

NAACP ve ’
371 U.S. 415, 83 S.Ct. 328,
9 L.Ed.2d 405 (1963)

NeL RB. vs Johnson
310 F.2d 550 (éth Cir., 1962)

ton vs. New York.
445 U.S. 573, 100 S.Ct. 1371,
63 L.Ed.2d 639 (1983)

v>+ Perales
402 U.S. 389, 91 S.Ct. 1420,
28 L.Ed.2d 842 (1971)

Rosen vs Walters
719 F.2d 1422 (9th Cir., 1983)

weiker vy. McClure,
456 U.S. 188, 102 S.Ct. 1665,

72 LeEd.2d 1 (1982)

Tuler yv-» Campbell,
106 U.S. 322, 1 S.Ct. 293,
27 L.Ed. 162 (18 )

United States vs. Block
4 Sawy (U.S.) 211,
24 Fed.Cas. 14,609 (1877)

(iv)

17

17

12

16

16

21

19

States ys. Boyer
85 F. 425 (1898)

United States vs»

Classic
313 U.S. 299, 61 S.Ct. 1031,
65 L.Ed. 1368

United States vs. Harris

1 Abb. (U.S.) 110,
26 Fed.Cas. 15,312

States y+ Kras,»
409 U.S. 434, 93 S.Ct. 631,
34 L.Ed.2d 621

United tes vy» Mendoza
se U.S. Tn 104 S.Ct. 568,
78 L.Ed.2d 379 (1984)

States v. Pierce Freight Lines

327 U.S. 515, 66 S.Ct. 687,
90 L.Ed. 821 (1946)

ye St

Oil Co.
136 F.Supp. 345 (SeDeNeVos 1955)

Camera Corps v+ Neb» R-Be
340 U.S. 474, 71 S.Ct. 454,
95 L.Ed. 456 (1750)

ie Bank. vs. Eenno
8 Wall (75 U.S.) 533,
19 L.Ed. 482 (1869)

Wolff v» McDonald,
418 U.S. 539, 94 S.Ct. 2963,
41 L.Ed.2d 935 (1974)

Wright yv- United St
302 U.S. 583, 58 S.Ct. 395,
82 L.Ed. 439 .(1938)

Cy)

22

21

16

15

16

i8

UNITED STATES CONSTITUTION

Preamble

Article I, 49 & 4 10

ist Amendment 3, 4, 8, 10, 12,
Sth Amendment 13,

6th Amendment

Bth Amendment

9th Amendment

10th Amendment

UNITED STATES CODES

5 U.S.C. @ 8591, et seq.
& 1004(d)

i8 U.S.C. 44 201 - 218

22 U.S.C. & 801, et seq.

38 U.S.C. @ 10142) & (8)

4 211¢a) 2»

& 211¢b)

@ 3404(c) 2, 3, S, 11-13,
42 U.S.C. & 401, et seq,

4 1651, et seq.

4 1751, et seq.

(vi)

10
10

CODE OF FEDERAL REGULATIONS

20 CFR 404.975 and .976 (1979) 13

CODES OF PROFESSIONAL RESPONSIBILITY

American Bar Association, DR 5-101 15
DR 5-107 i5
DR 7-102 17
DR 9-101¢A) 15
DR 9-101¢(C) 15

California, Rule 2-110¢1), (2) i8

HISTORICAL DOCUMENTS

Maane Carta (1215) 3, 9, 10, 21, 22,
Appendix
MISCELLANEOUS
Davis, K.
Administrative Law Text, 4 28.04. 2i
Davis, K
Administrative Law Text 2nd, 21

Encylopedia Britannica,
Volumnm 14 (1971) 22

Farrand, Max., The Records of the
Federal Convention, Vol 4 22

Hamilton, The Federalist Papers,

No. €4 22
Howard, A.E. Dick, MAGNA CARTA, Text
and Commentary Appendix
(vii)

McKechnie, William Sherp.
Maqna Carta. A Commentary on
the Great Charter of King John 22

Schwartz, Bernard, —
The Bill of Rights: A Documentary
History. Volumn I, pp 21 22

United States Senate Document # 92-82
(1973) The Constitution of the
United States of America; Analysis
and Interpretation 10

United States Attorney General,
Opinions Of (Volumnm 5) (1852) 8

U.S. Supreme Court Digest (L.Ed.)
Vol. 2 Appeal & Error 4 910.8 21

West’ California Annotated Codes,
Constitution, Volumn 3 22

(viii)

Case No. 84-571
SUPREME COURT OF THE UNITED STATES
October Term 1984

HAFRY N. WALTERS, Administrator of the
Veterans Administration, et al.»
Appellants

VS

NATIONAL ASSOCIATION OF RADIATION
SURVIVORS, et ale,» Appellee,

and THE AMERICAN G.I. FORUM, etc.,
Intervenor~-Appellee,.

On Girect Appeal from

The United States District Court for
The Northern District of California

Amicus Curiae Brief of ANDREW GROZA
In Support of Appellee

INTEREST OF AMICUS CURIAE

Amicus curisze, Andrew Groza, is a

veteran of World War II within the mean-
ing of 38 U.S.C. 4 10142) & (8), by vir-
tue of active military service from June
19, 1943 to July 8, 1944,

Appellant found that he had a disa-

AMICUS CURIAE BRIEF, page 1.

bility based on a heart condition, but
that it was not service connected.

Amicus Curiae brought a suit in the
United States District Court for the
Eastern District of California, Groza yv.
The Veterans’ Administrator, et al., #
Civ. S-82-679-MLS, alleging, inter alia,
thet the decision was arbitrary and ca-
pricious, not supported by the evidence,
active concealment of military records
and challenging the Constitutionality of
38 U.S.C. 4 211¢(a) and 4 3404(c). Defen-
dants brought motions on the pleadings
which were granted and the action dis-
missed with prejudice. micus curise
appealed. United States Court of Ap-
peals, Ninth Circuit, No. 84-1783. That
case was heard on oral arqument on De-
cember 14, 1984, and is mow pending.

The decision of this court may be
determinative as to the constitutionali-

ty of 38 U.S.C. 4& 3404(c).

AMICUS CURIAE BRIEF, page 2.

SUMMARY OF ARGUMENT

1. Stare decisis does not control
constitutional issues}; widespread prac-
tice cannot shield conduct from scruti-
m4} decisions in this court sere sparse,
and in one case without opinion; this
court should re-examine the matter,

2. The constitution is construed as
other legal instruments} each word and
phrase must be given meaning; meaning is
derived from the intent of framers;
where two meaninas are possible, the one
which gives effect to the provision is
preferred over one which would defeat
the purpose of the provision,

3. Veterans have a First Amendment
Right to petition for the redresss of
erievances which can be traced back to
rights found in the magna charta, and
includes the right to defend their pro-
perty interest in a@ pension.

4. Section 3404(c) is in violation

AMICUS CURIAE BRIEF, page 3.

of a right constitutionally delegated to
the Veteran; it impermissibly impairs
ist Amendment Rights; it violates equal
protection of the laws; the government
has an unfair advantage because it has a
lawyer; the United St-v.es Attorney can-
not represent two parties; the govern-
ment can show no compelling justifica-
tion for the restriction in light cf the
experience of other agencies.

Conclusion. Based upon the forego-
ine, this court shovld affirm National
Rediation Survivors vy. Walters, United
States District Court for the Northern
District of California, # C-83-1861-MHP,
and remand for further proceedings.

ARGUMENT
I

STARE DECISIS IS NOT CONTROLLING

Neither the doctrine of collateral
estoppel nor stare decisis, has been an

absolute bar to litigating constitution-

AMICUS CURIAE BRIEF, page 4.

al issves affecting broad, important
social issues. Generally, United States
v+ Mendoza, --- U.S. ---, 104 S.Ct. 568,
574, 78 L.Ed.2d 379, 386-387 (1984).
This court has recognized that even
longstanding widespread practice is not
immune from scrutiny. EsQe» Payton ve
New York, 445 U.S. 573, 100 S.Ct. 1371,
63 L.Ed.2d 639 (1983) (Finding warrant-
less arrests in a@ home unconstitutional
notwithstanding practice in 23 states).
Gendrom v» Levis, 423 U.S. 802, 96
S.Ct. 9, 46 L.Ed.-2d 23 (1975) is the
last case on this issve in this Court
and it was a per curiam decision without
opinion affirming an appeal on a
challenge to 38 U.S.C. & 3404(c).
However, this court has cautioned that
per curium decisions are often mo more
than decisions on the facts and ought
not to be considered binding on lower

courts in the absence of an opinion.

AMICUS CURIAE BRIEF, page 5.

Tyler ve Campbell, 1046 U.S. 322, 1 S.Ct.
293, 27 L.Ed. 1623 Barton vy. Geiler, 108
U.S. 161, 2 S.Ct. 387, 27 L.Ed. 687.

This Court has never held 38 U.S.C.
& 211¢a) constitutional. In Lymch ve U-
mnited States, 292 U.S. 571, 54 S.Ct.
B40, 78 Le-Ed. 1434 (1934) this court
only found, in obitur dicta, that it was
not relevant to the issues presented,

Therefore, the issve before the
court is ripe for re-examination on the
basis of the historical quarantees and
protections afforded by the constitu-
tion, giving weight to the intent of the
framers and the source of our liberties
as defined and expounded in the Magna
Charta of 1215.

II

STANDARDS OF CONSTITUTIONAL
CONSTRUCTION

In the solution of constitutional

questions the same rule of interpreta-

AMICUS CURIAE BRIEF, page 4,

tion, and sources of judicial informa-
tion, may be resorted to as in the con-
struction of statutes and other § instru-
ments granting power. Adams ve Storey, 1
Paine. (U.S.) 79, 1 Fed. Cas. page 141,
145 (1817). The constitution and the law
are to be expounded without leaning one
way or the other, according to those
general principles which usually govern
the construction of fundamental or
other laws. Bank of the United States vy.
Deveaux, 5 Cranch (9 U.S.) 61, 85, 3
L.Ed. 38 (1809). No word or clause can
be rejected as superfluous or unmeaning,
but each must be given its due force and
appropriate meaning, Wright ve United
States, 302 U.S. 583, 588, 58 S.Ct. 395,
82 L.eEd. 439 (1938). Words and terms are
to be taken in the sense they were used
and understood at common law and at the

time the constitution and the amendments

were adopted. Veazie Bank y+ Femno, 8

AMICUS CURIAE BRIEF, page 7.

Wall (75 U.S.) 533, S542, 19 L.Ed.482
(1869); Locke v» New Orleans, 4 Wall (71
U.S.) 172, 18 L-Ed. 334 (1866)3 Gibbons
vy» Ogden, 9 Weat.e. (22 U.S.) 1, 188-189,
6 L.Ed. 23 (1824)3 United States v- Har-
ris, 1 Abb. (U.S.) 110, 26 Fed. Ca. No.
15, 312 (1844)$ United States vy.» Block,
4 Sawy. (Ue«S.) 211, 24 Fed.Cas. 14,609
(1877); Pardoning Power of the Presi-
dent, S Opinion U.S. Atty. Gen. 532, 535
(1852). Where there are several possible
meanings of the words of the constitu-
tion, that meaning which will defeat
rather than effectuate the constitution-
al purpose cannot rightly be preferred,
United States vy. Classic, 313 U.S. 299,
3146, 61 S.Ct. 1031, 85 L.Ed. 1368.
IitI

VETERANS’ HAVE A FIRST AMENDMENT
RIGHT TO REDRESS GRIEVANCES

ist Amendment rights have always

been recoaqnized as embracing the right

AMICUS CUKIAE BRIEF, page 8.

of access to administrative agencies and
demand for am exercise by the government
of its powers in furtherance of the in-
terest and prosperity of the petitioner,

Eastern RR. Presidents Conf. ve Noerr
Motors Frei ht, 365 U.S. 127, 137, 81

§.Ct. 523, 5S L-Ed.2d 464 (19461); Cali-
fornia Motor Trams. Coe ve Trucking Un-
limited, 404 U.S. 508, 510 (1972)3 NAA-
CP ve Button, 371 U.S. 415, 83 S.Ct.
328, 9% L.Ed.2d 405 (1963)3 Brotherhood
of R«Ts ve Virginia, 377 U.S. 1, 5-7, 94
S.Ct. 1113, 12 L.Ed.2d 89, 11 AWL.R.3d
1196 (1964). Generally, Johnson ve Robi-
som, 415 U.S. 361, 346fn-B, 974 S.Ct.
11460, 39 L.Ed.2d 389 (1974)3 Hernandez
v+ Veterans Administration, 45 U.S. 391,
94 S.Ct. 1177, 39 L.Ed.2d 412 (1974).
Veterans’ Rights were expressly
recognized in the Magna Charter of
1215, to include benefit rights. Magna

Charta, Article 2 (Benefits), appendix

AMICUS CURTAE BRIEF, page 9.

Pe 63 Art. 16 (Excessive Service), ap-
pendix p. 103 Arte. 61 (Right of Review),
appendix, pep. 20. The Magna Charter is
recognized as the antecedent of ist A-
mendment Rights. U.S. Senate Document #
92-82 (1974) The Constitution of the
United States of America; Analysis and
Interpretation, page 1030ff,.

The pension scheme enacted is not a
mere gratuity, but the just compensation
for the permanent taking of ~a veteran’s
ability to work which the Sth and 13th
Amendment demands, and is constructively
a form of worker’s compensation. E.Q-s>
5S U.S.C. @ 8501, et seq} 22 U.S.C. & 801
et seq.}; 42 U.S.C. @ 401, et seqe, &
1651, et seq and 1751, et seq,

Given the foregoing ist Amendment
and Magna Charta history, Veterans have
@ right to judicial review of decisions

affecting their pensions.

AMICUS CURIAE BRIEF, page 10,

IV

38 U.S.C. &@ 3404(c) IMPERMISSIBLY
INHIBITS A VETERAN’S CHOICE OF COUNSEL

The United States Constitution pro-
vides in relvant part?

The enumeration in the Con-
stitution, of certain rights,
shall not be construed to deny or
disparage others retained by the
people.

9th Amendment. And,

The powers not deleagsted to
the United Staies by the Consti-
tution, mor prohibited by it to
the States, are reserved to the
States respectively or to the
people.

10th Amendment.

The Coristitution does not delegate
to the national government the right to
determine who may or may not have coun-
sel. Indeed, the right to retain counsel
hes been expressly reserved to the accu-
sed in criminal prosecutions. 6th Amend-
ment. Reading the 9th and 10th Amend-
ments in pari materia, the right to re-

tain counsel of one’s own choice remains

AMICUS CURIAE BRIEF, page 11.

with the People,” unless the Government

show a compelling justification for

Generally,
83 S.Ct.

curtailment.

NAACP vs
Button, 371 U.S.
L.Ed.2d 405 (1963).

While this court has never required
adminis~

the appointment of counsel in

trative hearinas, it has held that the

right to retain counsel an adminis-
trative earine is an important and ne-
legitimate

Goldberg
90 S.Ct.

cessary right in protecting

claims against the government.
ve Kelly, 397 U.S. 254,
25 L.Ed.«2d 287 (1970). Stated otherwise,
impediment to the acquisition of
counsel would unduly restrict ist Amend-
ment Riqhts. In the context of the czse
at bench, 4 3404(c) unduly restricts 2
Anendment

Veteran’s exercise

Right to redress grievances predicated
om denial of pension rights thea’

have, and is therefore unconstitutional.

AMICUS CURIAE BRIEF, page 12.

Alternatively and cummulatively,
there is implied in the due process
clause of the Sth Amendment a right to
equal protection of the law (Johnson,
supra, 415 UsS+e, at 364fn4).

In Goldberg ve Kelly, supra, 397
U.S. at 269-270, 90 S.Ct. 1011, 25 Le-
Ed.2d 287 this Court rejected the notion
that mere desire to protect the public
purse was sufficient to override the
individuals meed for due process of law
and the Assistance of Counsel im Social
Security Cases. Social Security Cases
have required the assistance of counsel
with reasonable compensation ever since
with mo apparent ill effects. 20 CFR
404.975 and .9746 (1979). That Veterans
who have defended the very concept of
due process should have less rights than
those accorded welfare recepients whose
benefits are unrelated to service in

defense of their country smacks of a

AMICUS CURIAE BRIEF, page 13.

denial of equal protection of the laws
(Johnson, supra, 415 U.Se, at 364fn4),
or denial of due process of law for not
being rationally related to furthering a
legitimate governmental object, vis se-
curing @ just result free from arbitrary
and capricious decision making. Johnson,
supra, 415 U.S., at 374-375.

Moreover, the practice is offensive
to procedural notions of a fair hearing
quaranteed under the Sth Amendment. The
Administrator has the right to Counsel,
and may refer questions of law to his
legal advisor. 38 U.S.C. @ 211¢b),.

It is, therefore, unfair to re-
strict compensation in a manner which
prevents a Veteran from retaining coun-
sel of his own because it is most cer-
tain that om questions of law, the Ad-
ministrator will give areater weight to
the opinion of a trained lawyer before

he listens to a Veteran untrained in

AMICUS CURIAE BRIEF, page 14,

law and unaided by counsel, thus relega-

tine him to the acceptance of whatever

opinions adverse counsel has. Such a sys-

tem is inherently unfair in violation of
the Sth Amendment due process clause,
Moreover, the Attorney General can-
not effectively, or ethically, represent
both parties. All lawyers have a duty of
loyaity. American Bar Association, Code

of Professional Responsiblity CABA, CPRI

DR 5-101 to DR 5-107. E.@., General Mo-
tors Corp ve» City of New York, 501 F.2d
639 (2nd Cir., 1974)$ United States vy.

Standard Oil Co., 136 F. Supp. 345 (S.-
D.N.Y., 1955). ABA, CPR, DR 9-101(A)$ DR

9-101(C). See, 18 U.S.C. 44 201-218 (fe-
deral anti-conflict of interest law).
The need for legal assistance can-
not be overstated, Appellants do not
make a factual showing that medical per-
sonnel are not used as a part of the

decision making process as alleged by

AMICUS CURIAE BRIEF, page 15.

Amicus Curige in the Courts below.

A fundamental rule of administra-
tive agency law is that an administra-
tive agency must confine itself to the
record before it and afford an opportu-
nity to make a showing contrary to which

judicial notice has been taken. 5 U.S.C.

4 1006(d). NeL-Re-Be ve Johnson, 310 F.2d
550 (6th Cire, 1962)3 United States y.
Pierce Freight Lines, 327 U.S. 515, 64
S.Ct. 687, 90 L.Ed. 8213 Universal Ca-
mera Corpes ve NebeRe Ber 340 US 474,
71 S.Ct. 456, 95 L.Ed. 456 (1951)$ Gold-
berg vs Kelly, 397 U.S. 254, 970 S.Ct.
1011, 25 L-Ed.2d 287 (1970).

Without the assistance cf counsel,
it is clear that the Board, through one
of its panel members, can take judicial
notice of matters without affording the
Veteran an opportunity to "“cross-ex-

amine. Cf-, Richardson y- Perales, 402
U.S. 389, 410, 91 S.Ct. 1420, 28 L.Ed.2d

AMICUS CURIAE BRIEF, page 164.

842 (1971), with Mathews vy. Eldrige, 424
U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18

(1973). It is clear that an attorney can
recommend, and select, where appropri-
ate, the right expert to assist the ve-
teran in making @ record, and curtail
the utilization of an expert not subject
to cross-examination. Goldberg, supra,
397 U+sSe, at 269-270.

The chief grounds Appellants can
muster in defense of 4 3404(c) is that
it discourages the promotion of invalid
Claims. Margolin vy. United States, 249
UsS» 973, 46 S.Ct. 64, 70 L.Ed. 176
(1925); es ve» Lowry, 305 U.S. 85, 59
S.Ct. 31, 83 L.Ed. 56 (1938)3 Hoffmaster
Ve VeAss 444 F.2d 192 (3rd Cir., 1971).
There is no evidence that has been the
experience is Social Security Cases.
Moreover, attorney’s have ABA and State
Ethical Standards which prevent advoca-

tine frivolous claims. ABA, CPR, DR 7-

AMICUS CURIAE BRIEF, page 17,

102(A)(1), (2)$ California Rules of Pro-
fessional Responsibility, Rule 2-110(1),
(2). There is no evidence that the per-
sons chosen by Congress have ethical
standards.” In view of potential for
conflicts of interest inherent in having
office furniture provided by Appellant,
lack of legal training, and no compensa-
tion, the opposite is true. And it is
conceivable meritorious claims will be
lost for lack of competent counsel.
Appellant would also reduce Veter-
ans who have defended the concept of due
process of law to the status of convict-
ed felons and school childrens Appel-
lant’s Brief, pp.» 26 - 28. However, this
court has recognized that convicted fe-
lons have a substantially reduced 1li-
berty interest protected only by the 8th
Amendment. Wolff ve McDonnell, 418 U.S.
539, 569-570, 94 S.Ct. 2963, 41 L.Ed.2d

435 (1974). Therefore, denial of counsel

AMICUS CURIAE BRIEF, page 18,

to convicted felons is mot a legal ba-
sis for denying counsel to Veterans.

Similarly, this Court recognized
that at common law, school children had
substantially less due process rights
than others and was unwilling to change
the common law. Ingraham ve Wright, 430
UsS-+ 651, 97 S.Ct. 1401, Si L.Ed.2d 711
(1977). At common law, Veterans had sub-
stantial due process rights regarding
their pensions, supra Point III. There-
fore, denial of counsel to school chil-
dren is not a legal basis for denying
counsel to Veterans,

A third type of case cited by Ap-
pellant, Schwiker v- McClure, 456 U.S.
i188, is not about the right to counsel,
but hearing officer qualifications,
Hence, that case affords mo legal justi-
fication for the denial of counsel,

CONCLUSION

In view of the foregoing arquments,

AMICUS CURTAE BRIEF, page 19.

thie court should find that the restric-
tion on compensating counsel are uncon-
stitutional because it constitutes ei-
ther a denial of rights retained by the
Feople, an wnreasonable restraint or
inhibition on ist Amendment Petition
Riahts, 2a denial of due process of law,
or a denial of equal protection of the
laws, that the government has not sus-
tained its burden of proving a compel-
ling governmental justification, affirm
the decision of the District Court and
remand for further proceedings mot in-

consistent with this Court’s decision.

P.O. Box 15766
Sacramento, CA 95852
(916) 924-9382

Attorney for Amicus Curizse
In Support of Appellee

Footnotes:
1. Rosen ve Walters, 719 F.2d 1422 (9th

AMICUS CURIAE BRIEF, page 20.

Cir.s, 1983) did not address the ist A-
mendment riaghts to petition or trace its
history first found in the Magna Carta.

Holly ve United States, 352 F. Supp. 175

(S.D. Oh» 1972), affirmed without opin-
ion 477 F.2d 600 (6th Cir.), cert. den.

414 U.S. 1023 (1973) was not a decision
on the merits}; the court merely refused
to invoke a three judge panel as requir-
ed at the time, holding at page 176 and
citing a mumber of this Court’s deci-
sions that Congress could withhold judi-

cial review. In fact not one single case
cited by Holly supports that conclusion.
Each of this Court’s cited cases merely
construed a Statute Congress had passed
toi (1) determine whether or not con-
gress had withheld judicial review; and,
if mot, (2) what that review was to be.
In each case, this Court held that Con-
gress had not foreclosed judicial re-
view. It also cited K. Davis, Adminis-~-
trative Law Text, 4 28.04 (see now, K,.
Davis Administrative Law Text 2nd). That
treatise does not cite any ist Amendment
Right cases, or any case that Congress
has the right to withhold judicial re-
view, but does trace a history of this
Court’s retreat from a judicial philoso-
phy of no judicial review. Finally, it
is well settled that the denial of cer-
tiorari imports NO implicaton or infer-
ence concerning the court’s views of the

merits. United States v- Kras, 409 U.S.
434, 93 S.Ct. 631, 34 L.Ed.-2d 621;

Hughes Tool Co. ve Transworld Airlines,
409 U.S. 363, 93 S-Cte. 647, 34 L.Ed.2d
577. Generally, 2 U.S. Supreme Court
Digest (L.Ed.> Appeal & Error 4 910.8.

2. A true copy is set out im the ap-

pendix. Reissue Charters vary in text,
however the following resources have

AMICUS CURIAE BRIEF, page 21.

preserved the original text! McKechnie,
William Sharpe, Magna Carta; A Commen-
tary on the Great Charter of King John.
Schwartz, Bernara, The Bill of Rights! A
Documentary History, Volumn 1, page te
; A
- 5 oe
‘ A

te

‘ “s
, ae
: ty
‘4

‘t: ree’ ISHED FOR THE MAGNA CAKTA COMMISSION

ey

‘ 1% a" UNIVERSITY PRESS OF VIRGINIA, CHARLOTTESVILLE

rs
S. Wee

APPENDIXPG@ 4

Magna Carta Essays
CON TENTS

1 COMMENTARY

3 King John and the Barons

8 The Provisions of Magna Carta

9 Feudal relationships
12 Courts and the administration of justice
16 Abuses of local officials
18 Correction of the King’s past wrongs
18 Forest clauses

Magna Carta

Text and Commentary 18 Towns and trate

19 Debts and estates

20 Church and state

A. E. Dick Howard
Associate Professor of Law
University of Virginia

20 Security for the keeping of the Charter
21 General clauses

22 Magna Carta’s Influence
3 NOTE
363 THe Text or Macna Carta

Published for
The Magna Carta
Commission The University Press of Virginia
of Virginia Charlottesville

53 BIBLIOGRAPHICAL NOTE

APPEND! y PG 2 APPENDIX PG @ 9

33

Joun, by the grace of God, King of England,
Lord of Ireland, Duke of Normandy and
Aquitaine, ana Count of Anjou: To the Arch-
bishops, Bishops, Abbots, Earls, Barons, Jus-
ticiaries, Foresters, Sheriffs, Reeves, Ministers,
and all Bailifis and others, his faithful sub-
jects, Greeting. Know ye that in the presence of
God, and for the health of Our soul, and the
souls of Our ancestors and heirs, to the honor
of God, and the exaltation of Holy Church,
and amendment of Our kingdom, by the advice
of Our reverend Fathers, Stephen, Archbishop
of Canterbury, Primate of all England, and
Cardinal of the Holy Roman Church; Henry,
Archbishop of Dublin; William of London,
Peter of Winchester, Jocelin of Bath and Glas-
tonbury, Hugh of Lincoln, Walter of Worces-

APPENDIXPG @ 4

Preamble

The English
Church shal!
be free; grant
of liberties

to free men
of the
kingdom

MAGNA CARTA 34

ter, William of Coventry, and Benedict of
Rochester, Bishops; Master Pandulph, the
Pope’s subdeacon and familiar; Brother Ay-
meric, Master of the Knights of the Te.nple in
England; and the noble persons, William Mar-
shal, Earl of Pembroke; William, Earl of Sal-
isbury; William, Earl of Warren; William,
Earl of Arundel; Alan de Galloway, Con-
stable of Scotland; Warin Fitz-Gerald, Peter
Fitz-Herbert, Hubert de Burgh, Seneschal of
Poitou, Hugh de Neville, Matthew Fitz-Her-
bert, Thomas Basset, Alan Basset, Philip Dau-
beny, Robert de Roppelay, John Marshal, John
Fitz-Hugh, and others, Our liegemen:

1 We have, in the first place, granted to God,
and by this Our present Charter confirmed for
Us and Our heirs forever-That the English
Church shall be free and enjoy her rights in
their integrity and her liberties untouched. And
that We will this so to be observed appears
from the fact that We of Our own free will,
before the outbreak of the dissensions between
Us and Our barons, granted, confirmed, and
procured to be confirmed by Pope Innocent III
the freedom of elections, which is considered
most important and necessary to the English
Church, which Charter We will both keep
Ourself and will it to be kept with good faith
by Our heirs forever. We have also granted to
all the free men of Our kingdom, for Us and
Our heirs forever, all the liberties underwrit-
ten, to have and to hold to them and their
heirs of Us and Our heirs. [pp. 20, 21]

APPENDIx PG @ 5

THE TEXT 35

2 If any of Our earls, barons, or others who
hold of Us in chief by knight’s service shall
die, and at the time of his death his heir shall
be of full age and owe a relief, he shall have
his inheritance by ancient relief; to wit, the
heir or heirs of an earl of an entire earl’s
barony, £100; the heir or heirs of a baron of an
entire barony, £100; the heir or heirs of a
knight of an entire knight’s fee, 100s. at the
most; and he that owes less shall give less,
according to the ancient custom of fees. [p. 10]

3 If, however, any such heir shall be under
age and in ward, he shall, when he comes of
age, have his inheritance without relief or fine.

[p. 10]

4 The guardian of the land of any heir thus
under age shall take therefrom only reasonable
issues, customs, and services, without destruc-
tion or waste of men or property; and if We
shall have committed the wardship of any such
land to the sheriff or any other person answer-
able to Us for the issues thereof, and he com-
mit destruction or waste, We will take an
amends from him, and the land shall be com-
mitted to two lawful and discreet men of that
_ fee, who shall be answerable for the issues to
Us or to whomsoever We shall have assigned
them. And if We shall give or sell the ward-
ship of any such land to anyone, and he commit
destruction or waste upon it, he shall lose the
wardship, which shall be committed to two
lawful and discreet men of that fee, who shall,

APPENDIy PG 6

Reliefs
for inheritance
Duties
of
guardians
Heir under
age Marriage
of heirs
Rights of ,
Rights of
wares widows
emarriage
of widows

MAGNA CARTA 36

in like manner, be answerable unto Us as has
been aforesaid. [p. 10]

5 The guardian, so long as he shall have the
custody of the land, shall keep up and maintain
the houses, parks, fishponds, pools, mills, and
other things pertaining thereto, out of the
issues of the same, and shall restore the whole
to the heir when he comes of age, stocked with
ploughs and tillage, according as the season
may require and the issues of the land can
reasonably bear. [p. 10]

6 Heirs shall be married without loss of sta-
tion, and the marriage shall be made known to
the heir’s nearest of kin before it be contracted.

(p. 11]

7 keep faithfully all the afore-
said articles and, to the best of their power, to
cause them to be kept by others. We will not
procure, either by Ourself or any other, ary-
thing from any man whereby any of these con-
sessions or liberties may be revoked or abated.
If any such procurement be made, let it be null
and void; it shall never be made use of either
dy Us or by any other. [p. 20]

APPENDLx BG 22

Pardon of
ill-will and
trespasses

Oath to
observe rights
of Church
and people

MAGNA CARTA $2

*62 We have also wholly remitted and par-
doned all ill-will, wrath, and malice which has
arisen between Us and Our subjects, both
clergy and laymen, during the disputes, to and
with all men. Moreover, We have fully re-
mitted and, as far as in Us lies, wholly par-
doned to and with all, clergy and laymen, all
trespasses made in consequence of the said dis-
putes from Easter in the sixteenth year of Our
reign till the restoration of peace. Over and
above this, We have caused to be made in their
behalf ietters patent by testimony of Stephen,
Archbishop of Canterbury, Henry, Archbishop
of Dublin, the Bishops above-mentioned, and
Master Pandulph, for the security and conces-
sions aforesaid. [p. 18]

*63 Wherefore We will, and firmly charge,
that the English Church shall be free, and that
all men in Our kingdom shall have and hold all
the aforesaid liberties, rights, and concessions,
well and peaceably, freely, quietly, fully, and
wholly, to them and their heirs, of Us and Our
heirs, in all things and places forever, as is
aforesaid. It is moveover sworn, as well on
Our part as on the part of the barons, that all
these matters aforesaid shall be kept in good
faith and without deceit. Witness the above-
named and many others. Given by Our hand in
the meadow which is called Runnymede, be-
tween Windsor and Staines, on the fifteenth
day of June in the seventeenth year of Our

reign. [pp. 20, 21]

APPENDIy PG g2 3

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0338%3A10. Public record. Not legal advice.