Opposition Brief — Meyer v. Weil

IN THE

Supreme Court of the United States

Octoser TERM, 1971

No. 72-5175

UNITED STATES OF AMERICA Ex. Rel., KARL

MEYER,

Petitioner

vs.

DANIEL WEIL, EXECUTIVE DIRECTOR, Cook County

House of Correction, and RICHARD ELROD,

SHERIFF OF COOK COUNTY,

Respondents.

RESPONDENT'S BRIEF IN OPPOSITION TO

GRANTING WRIT OF CERTIORARI

QUESTION PRESENTED

Whether habeas corpus jurisdiction exists for one con-

victed of a fine-only offense, who has been free on bond

since his conviction, and who may possibly never actually

be incarcerated.

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- MEDEA EES E EDEN BELL IAT aL AA ORS wt Ste 8 _ . a at

STATEMENT OF THE CASE

Petitioner Karl Meyer is appealing from the United

States Court of Appeals’ affirmance of a denial of ha-

beas corpus relief. The United States District Court for

the Northern District of Illinois had refused to grant a

Writ of Habeas Corpus on December 18, 1970. The United

States Court of Appeals for the Seventh Circuit refused

to reverse the judgment on March 28, 1972, and denied

a petition for rehearing on May 3, 1972.

On the evening of July 14, 1967, the petitioner and

associates conducted a ‘‘Viet Nam Forum’’ on a public

sidewalk in a busy and highly congested section of the

city of Chicago. A series of prior ‘‘Forums’’ had been

conducted without either violent incidents or police in-

terruption. However, on July 14 violence occurred with

further and increased violence threatened. Consequently,

the entire gathering was ordered to disperse by the po-

lice. Petitioner dramatically refused to obey the command

and was arrested.

The Cireuit Court of Cook County, Municipal Division,

found the petitioner guilty and fined him $100 on a charge

of interfering with a police officer in violation of the Mu-

nicipal Code of Chicago, Section 11-33, which contains no

provision for incarceration. Petitioner has been at large at

all times since his conviction on a $1,000 bond, which re-

quired an actual cash deposit of $100, an amount equal

to the fine. The Supreme Court of Illinois affirmed the con-

viction [Chicago v. Meyer, 44 Ill. 2d 1 (1969)], and the

United States Supreme Court denied certiorari {Meyer

vy. Chicago, 397 U.S. 1024, 90 S. Ct. 1262, rehearing dened,

398 U.S. 915, 90 S. Ct. 1688 (1970) ].

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The Court of Appeals [United States ex rel. Meyer v.

Weil, 458 F. 2d 1068 (1972)], in affirming the denial of

habeas corpus relief, noted that: “ [a]ppellant has spent no

time in custody as a result of his conviction’’, and stressed

that:

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‘, . . he was at large on bail when he sought habeas

corpus. He is still at large. He was not then and is not

now in custody.”’

The Court summarized: ‘It is highly speculative whether

appellant will serve time because of this conviction,”

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4

ARGUMENT

I.

PETITIONER IS NOT ENTITLED TO HABEAS

CORPUS RELIEF.

A.

The Relief Sought Is Premature.

There is no indication that Karl Meyer, petitioner, has

ever spent a day physically restrained as a result of his

conviction in this cause. It is purely speculative whether

he will ever sustain physical restraint as a result of this

conviction.

Petitioner was fined $100 for interfering with a police

officer. The ordinance he violated only provides for mone-

tary penalties and contains no provision for incarcera-

tion. Upon a failure to pay the fine, the Circuit Court

ordered that the petitioner would have to ‘‘work-off’’ the

fine in the House of Correction at a rate of $5 a day.

Petitioner has issued no claim of inability to pay the fine.

If he were indigent, of course, no incarceration could re-

sult from failure to pay. Tate v. Short, U.S. , 28

L. Ed 2d 130 (1971). Nor has petitioner claimed to have

actually spent any amount of time in eustody for non-

payment of the fine. At the time when petitioner filed for

a Writ of Habeas Corpus he was not then in jail, but

rather was free on $1,000 bond (requiring an actual cash

deposit of $100 — a sum equal to his fine).

The 1970 Illinois Constitution provides that ‘‘. . . No

person shall be imprisoned for failure to pay a fine in a

criminal case unless he has been afforded adequate time

to make payment, in installments if necessary, and has

willfully failed to make payment.’’ Art. I, See. 14. Hence,

Illinois has constitutionally mandated the collection of

fines, rather than ‘‘work-out”’ arrangements.’

While recent United States Supreme Court cases have

resulted in a restatement of the role of Habeas Corpus,

no decision has ever suggested that a person whose sen-

tence is purely speculative is qualified to secure such a

Writ. The custody requirement of 28 U.S.C. 2241 has

never been so diluted as to be satisfied by the cireum-

stances of the instant case. Section 2241 (c) (3) of Title

28 provides in pertinent part: ‘‘The writ of habeas corpus

shall not extend to a prisoner unless . . . he is in custody

in violation of the Constitution or laws or treaties of the

United States.’’

Carafas v. LaVallee, 391 U.S. 234 (1968), recognized

that the continuing effects of conviction after reiease

from imprisonment prevented mootness. Peyton v. Rowe,

391 U.S. 54 (1968), accorded a justifiable interesi to those

serving consecutive sentences who wished to challenge the

legality of the future term. In both cases, the sentences

were certain. In Carafas, it had been served. In Peyton,

it was definitely going to be served and visibly affected the

sentence then currently being served. The ‘‘sentence’’ im-

agined in the case at bar represents no such correspond-

ing certitude. Since the simple payment of the fine fore-

closes imprisonment and inability to pay the fine fore-

closes imprisonment, it seems questionable whether any

imprisonment will be served. No matter how liberally one

"The effect of the new constitution upon methods of

collecting fines has never been presented to a State court

for litigation by the petitioner. State remedies are still

available (e.g., State habeas corpus, or a Writ of Manda-

mus or Prohibition) and have not been exhausted here.

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defines ‘‘custody’’, there is always the underlying cer.

tainty of imprisonment — served or to be served. That

certainty is totally absent from the present case.

The abandonment of technical notions of mootness should

not blur the real and persisting ‘‘in custody’’ limitation.

It is one thing to say, as the Supreme Court did in Cara-

fas, that once federal jurisdiction attaches, it is not dis-

solved by the expiration of the allegedly unlawful confine-

ment, or in Peyton, that a second consecutive sentence

awaiting service can be questioned prior to its commence.

ment. But where does federal jurisdiction attach when, as

here, the custody has yet to occur and is likely never to

occur? Our petitioner has never been incarcerated as was

the petitioner in Peyton, and most certainly has not served

a sentence as did the petitioner in Carafas. Most telling is

the fact that our petitioner was not incarcerated when his

petition for habeas corpus was filed.

The majority rule is that ‘‘custody’’ requisites are not

satisfied by one at large on bail pending commencement of

sentence. The relatively minor restrictions imposed by

conditions of bail do not constitute ‘‘custody’’ for the

purposes of habeas corpus, unless that term is virtually

read out of the statute. Allen v. United States, 349 F. 2d

362, 363 (1st Cir. 1965). Matysek v. United States, 339

F. 2d 389, 394 (9th Cir. 1964). Also see: United States

v. Meyer, 417 F. 2d 1020 (8th Cir. 1969), fn. 2; United

States ex rel. Di Rienzo v. New Jersey, 423 F. 2d 224,

229 (3rd Cir. 1970), concurring opinion.

The restrictions enforced by a parole board in Jones v.

Cunningham, 371 U.S. 236 (1963), including detailed regu-

lation of petitioner’s economic, social, and moral life do

not even approximate the situation confronted in bail.

Essentially the only restriction imposed upon an indi-

y

vidual on bail is to be subject to the court’s call upon

reasonable notice. Allen v. United States, 349 F. 2d at 363.

This is similar to a subpoena and it cannot be seriously

contended that one served with a subpoena with its re-

sulting legal obligation to appear in court is in constructive

custody for purposes of Habeas Corpus. Matysek v. United

States, 339 F. 2d at 394.

The last explicit statement by the United States Supreme

Court in this matter precisely rejects the grant of juris-

diction under circumstances similar to those of the instant

case. Simply put, habeas corpus is not available to one

enlarged on bail. Stallings vy. plain, 253 U.S. 339, 343

(1920). Wales v. Whitney, 114 U.S. 564 (1885), approv-

ingly cited a State Court case denying habeas corpus re-

lief to one on bail.

7

Those minority decisions permitting bail to serve as a

sufficient restraint for the writ of habeas corpus have done

so only when the underlying incarceration was an inevi-

table event. For example, the ease of Burris v. Ryan, 397

F. 2d 558, 554 (7th Cir. 1968), held that a person free

on bail was entitled to habeas corpus relief. It should be

noted, however, that there petitioner’s motion for a con-

tinuation of bail as well as his petition for the Great Writ

were denied by the district court. Therefore, having lost

bail, the petitioner faced the immediate and definite pros-

pect of incarceration. This same circuit has also reached the

conclusion that one released upon the giving of bond did

not meet the restraint requirements of Habeas Corpus.

United States ex rel. Walmer v. Tittemore, 61 F. 2d 909

(7th Cir. 1932). See Rowland v. Arkansas, 179 F. 24 709

(8th Cir. 1950).

Therefore, bail has been seen as a sufficient restraint

only where serving the underlying sentence was inevitable.

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That inevitability is nowhere extant in the present case.

At this point in the proceedings, the certainty of sentence

can only be a product of petitioner's imagination.’

Similarly, if jailing awaiting trial was automatically

sufficient to satisfy the grounds for habeas corpus relief,

virtually everyone arrested for a crime would come within

the provisions of habeas corpus. However, Section 2254

applies to ‘‘a person in custody pursuant to the judgment

of a State court’’. Mere arrest does not amount to a judg-

ment of a State court. The petitioner in the instant case

was arrested during the closing hours of July 14, 1967. He

obtained his release shortly after noon on July 15, 1967,

after posting bail. This brief period of custody pursuant

to arrest is insufficient to warrant habeas corpus relief.

If it were otherwise, there would be no need for courts to

consider whether bail satisfies the requirements of cus-

tody.

The foregoing demonstrates that there exists no con-

flict between the decision in the instant case and any de.

cisions of other federal courts, including the United States

Supreme Court. The facts of this particular case fully

support the determination reached by the United States

Court of Appeals for the Seventh Circuit, and in no way

oppose existing case law.

*The respondents also raised this issue of jurisdiction

at the District Court level. “Mr. Patner | petitioner's at-

torney]: Your Honor, you are dismissing then on the

merits, I take it, because the State raised the question of

whether habeas corpus was the proper relief and we did

not respond to that... .”’ Proceedings before the District

Court, December 18, 1970.

B.

Incarceration Would Be Voluntary.

Incarceration in the case at bar can only occur if the

petitioner freely and voluntarily chooses it. If he is unable

to pay the fine, imprisonment cannot be imposed to satisfy

the monetary penalty. Tate v. Short, US. , 2 LL.

Ed. 2d 130 (1971). Williams v. Illinois, 399 U.S. 235 (1970).

Tate held that where a statute provides for fines only (the

situation in the present case), the fine cannot be converted

into a prison term for an indigent defendant.

Given the force of that holding, it must follow that any

jailing in the instant case will result from a volunteered

refusal to pay. ‘‘ We emphasize that our holding does not

suggest any constitutional infirmity in imprisonment of a

defendant with the means to pay a fine who refuses or

neglects to do so.’’ Tate v. Short, 28 L. Ed. 2d at 134.

In this manner, the Tate case provides the real key to

an understanding of petitioner’s mancuverings. He has

challenged the ordinance in the Supreme Court of Illinois

and was unsuccessful. He also failed to obtain United States

Supreme Court review of the matter. Now, through the de-

vice of Habeas Corpus, petitioner seeks a second series of

reviews of that same ordinance. There has been no show-

ing that petitioner is unable to pay the fine. Indeed, his

actual bond deposit is a sum equal to the amount of the

fine.

What is sought by petitioner is not a release from any

onerous restraint, but rather another ruling on the legal-

ity of the Chicago ordinance. The purposes of habeas cor-

pus have been subverted, for the relief sought is wholly

unrelated to custody. He holds up solely the ‘‘choice’’ of

incarceration to gain review. If that review again proves

to be unbeneficial, he can then pay the fine. Never having

served a day in jail, he instantaneously ends any claimed

federal jurisdiction. A Habeas Corpus action is not an

appropriate vehicle for securing a declaratory judgment.

The restraint here, if and when it occurs, must be con-

sidered voluntary because it is unnecessary. Submission to

custody will be for the mere purpose of procuring the

determination of certain legal questions lacking any rela-

tionship to procuring release from an irksome restraint.

Under these facts, any surrender will be ineffective to ob.

tain federal consideration. Baker v. Grice, 169 U.S. 284,

293-4 (1898).

In the final analysis the fact that over five years have

passed since petitioner's conviction without his being in-

carcerated best demonstrates the nature of the instant case.

Those five years give substance to the Seventh Circuit's

observation that ‘‘It is highly speculative whether appel-

lant will ever serve time because of this conviction.’’ Speeu-

lative custody is not custody. Nor should speculation serve

as the basis for obtaining jurisdiction to attack for a see

ond time a municipal ordinance.

CONCLUSION

For the foregoing reasons the petition for a writ of

certiorari to the United States Court of Appeals for the

Seventh Circuit should be denied.

Respectfully submitted,

Epwarp V. Haxranay,