Brief for the Respondent in Opposition — Frankel v. New Jersey

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TABLE OF CONTENTS

PAGE

CoUNTER-STATEMENT OF THE CASE ........2.2-22..--.--c-seeeeeeeee 1

Point I—Petitioner’s claim that her actions were

justified because the New Jersey assignment sys-

tem is unconstitutional is not properly reviewable

on an appeal from a judgment of contempt be-

cause she could have obtained orderly judicial

review of that question without contemning her-

TE cecescencencerecmenrentnntenneeninneensneeeenatGnnseste 2

Porst I]—Powell v. Alabama, 287 U. S. 45 (1932)

indicates that no constitutional restraint prohibits

the assignment of counsel without compensation .... 5

ConcLusion

Cases Cited

Argersinger v. Hamlin, Uv. Ss. —, 92 S. Ct.

|. , eer 6

Carton, Contempt of, In re, 48 N. J. 9, 222 A. 2d

2 (1966) 3,4

Powell v. Alabama, 287 U. S. 45 (1952)....................... 5

Rodriguez v. Rosenblatt, 58 N. J. 281, 277 A. 2d

I Ce a ccsertcscensnicsnmnenenccenniptnntceinienmnennicsenecetiateasanietaaes 6,7

State v. Clifton, 247 La. 495, 172 So. 2d 657 (Sup.

Ct. 1965) ..... iat esiaigaeainbacsbieniasibainsatane

State v. Horton, 34 N. J. 518, 170 A. 2d 1 (1961) _.. 4

State in Interest of Anthony Antini, Jr. 53 N. J.

8 Pe Be ee 2, 4,7

State v. Rush, 46 N. J. 399, 217 A. 2d 441 (1966)... =

4-7

ul TABLE OF CONTENTS

Steenback, In re, 34 N. J. 89, 167 A. 2d 397 (1961)...

Teine, In re, 17 N. J. 170, 110 A, 2d 93 (1954)............

United States vy. Dillon, 346 F. 2d 633 (9 Cir. 1965),

cert. den., 382 U. S. 978 (1966)

Walker y. City of Birmingham, 388 U. 5. 307 (1967)

United States Constitution Cited

First Amendment

Fifth Amendment

Yhirteenth Amendment

Fourteenth Amendment

Statutes Cited

N.J.S.A. 2A :10-1(c)

N.J.S.A. 2A:158A-1, L. 1967, e. 48

Rules Cited

R. 1:10-1

R. 3:27-2

Other Autkority Cited

Annotation:

12 A.L.R. 2d 1059, 1107-1114 (1950)

occ co

~1 to

IN THE

Supreme Court of the United States

October TERM, 1972

,

No. 72-729

In THE Matter oF THE CONTEMPT OF

ESTHER 8S. FRANKEL,

Aw Arrorney at Law or THE Strate or New JERSEY,

Petitioner.

On Petition for Writ of Certiorari to the

Supreme Court of New Jersey

in

>

BRIEF FOR RESPONDENT IN OPPOSITION

Counter-Statement of the Case*

On July 6, 1971 Janet Corey, an indigent, was charged

with a disorderly persons offense in the Paterson, New

Jersey Municipal Court. The court assigned the petition-

* The above facts can be found in Petitioner’s Appendix, p. 6

(Pa6). xs

ie os

2

| er, Esther Frankel, an attorney of the State of New Jer-

% sey, to represent the defendant (Pa6).

: © ’ . 4 ’ )

4 Miss Frankel refused the assignment. The court gave |

i her 24 hours to reconsider her position, warning her that!

{ it would hold her in contempt of court if she did not

change it (Pa6). Miss Frankel stated that she was doing

it as a matter of principle and that she would waive any

waiting period for the imposition of judgment and sen-

tence by the court (PaG6). She coneeded that she had |

been fully advised of her rights by the court. The court

j imposed a fifty dollar fine for contempt of court pursuant |

; to NuJ.S.A. 2A:10-1(¢) and R. 1:10-1 of the New Jersey

Court Rules. |

POINT I

Petitioner’s claim that her actions were justified be-

cause the New Jersey assignment system is unconsti-

tutional is not properly reviewable on an appeal from

a judgment of contempt because she could have ob-

tained orderly judicial review of that question with-

out contemning herself.

The petition before this Court is directed toward an

ultimate decision invalidating the New Jersey assignment

system which requires attorneys to represent without

compensation indigents accused of non-indictable offenses.

New Jersey Court Rules, R. 3:27-2: see State in Interest

of Anthony Antini, Jr., 53 N. J. 488, 495, 251 A. 2d 122

(1969). Petitioner claims that her refusal to aecept the

assignment in the instant case was justified because the as-

signment system is unconstitutional.

The courts have consistently held that on an appeal

from a contempt conviction, a contemnor cannot assert

a sti

that the order he violated was based on error of fact or

law as long as it was issued by a court of competent jur-

isdiction. Walker v. Cily of Birmingham, 388 U.S. 307,

317-321 (1967); In re Teine, 17 N. J. 170, 177, 110 A, 2d

93 (1954); In re Contempt of Carton, 48 N. J. 9, 16, 222

A. 2d 92 (1966). See also ctiaolt., 12 ALLAR. 2d 1059, 1107-

1114 (1950) which sets down the general rule at 1107:

“It is almost unanimously agreed that if the de-

fendant desires to attack the order or the decree

as erroneous, he must do so, not by disregarding or

violating it and then setting the error up as a de-

fense to a charge of contempt, but by a direct

attack thereon by appeal or a motion to set it aside.”

In Walker v. City of Birmingham, supra, defendants ap-

pealed state contempt convictions arising out of a refusal

to obey a court injunction against mass demonstrations.

The injunction was based upon a Birmingham parade or-

dinance. Defendants contended that it was permissible to

disobey the court's order because both the ordinance and

the injunction itself were unconstitutionally vague.

The Alabama courts said that they would not entertain

the attack on the constitutionality of the ordinance and

injunction since the defendants could have properly raised

those issues by a motion to dissolve the injunction.

The Supreme Court agreed, noting that the defendants

were bound to pursue orderly judicial review instead of

disobeying the injunction:

“The rule of law that Alabama followed in this case

refleets a belief that in the fair administration of

justice no man can be a judge in his own case how-

ever exalted his station, however righteous his mo-

tives, and irrespective of his race, color, polities,

4

or religion. This court cannot hold that the peti-

tioners were constitutionally [ree to ignore all the

procedures of the law and carry their battle to the

streets, One may sympathize with the petitioners’

impatient commitment to their cause. But respect

_ for judicial process is a small price to pay for the

eivilizing hand of law, which alone can give abid-

ing meaning to constitutional freedom.”

The judgment of contempt was upheld by the Supreme

Court.

In Jn re Contempt of Carton, supra at VG, the court said

of a lawyer's contempt:

“~~. There must be no defiance of a court, least

of all by one of its officers. It is no excuse that the

trial judge may be in error. Courts of appeal ex-

ist to hear such claims. One who is dissatisfied with

the action of a court must obtain a stay or obey the

order. Ile may not ignore it.”

The above rationale applies to the instant case. Peti-

tiener openly defied a court command and on appeal at-

tacks the validity of the court’s order. She could have

vetten an orderly review of her contentions by obeving

the court order and subsequently applying to the trial

court for compensation for her services. She then could

have appealed a denial of her application. Indeed, this

has been the traditional practice in this State followed by

atterness secking compensation for their services, See

State in luterest of Anthony Autini, Jr, supra: State v.

Rush, 46 N. J. 309, 217 A. 2d 441 (1966): Tn re Steenhack,

34. N. J. 80, 167 A. 2d 397 (1961); State v. Horton, 34 X. J.

SIS, 170 A. 2d 1 CGT).

5

Under the general rule stated herein, petitioner can-

net now rely upon the alleced constitution, ! issue con-

cerning the impropriety of the assignment system in New

Jersey. Therefore, there is ne reason jor this Court to

grant her relief.

POINT Il

Powell v. Alabama, 287 U. S. 45 (1932) indicates

ment of counsel without compensation.

Petitioner claims that the assignment system violates an

attorney's rights against involuntary servitude under the

United States Constitution, Vth Amendment and unequal

treatment under the Uwiled States Coustitution, 14th

Amendment: and takes private property without compen-

sation for public use contrary to the Uwited States Con-

stitution, Fifth Amendment. It is also alleged that the

First Amendment right to dissent has been stifled by the

assignment sVstem,

Most of these claims werg expressly rejected in State

v. Rush, supra at 407-408. Answering the constitutional

claims posed by the attorney in Rush, the court said:

“None of these contentions ix new, and if one ae-

cepts the premise that the duty to defend the poor

ix a professional oblication rationally incidental to

the right accorded a small secment of the citizenry

to practice law, these claims fall away.”

Analyzing Pow) ll \. State oft Mahawa, 27 UL OS.

(1882). which underscored the duty ef attorneys to repre-

sent indigents, the court in Rush noted that, “Powell did

assume that, if attorneys as officers of the Court: were

a

ee eee ie

Bre vere bet ates

called to serve without pay, no constitutional restraint

stood in the way.” State v. Rush, supra at 408.

Thus, decisions of both the United States Supreme

Court and the New Jersey Supreme Court directly con-

travene the defendant's constitutional claims. See also

United States v. Dillon, SAG FP. 2d G33 (9 Cir. 1965), cert.

den. 382 U. S. 978 (1966) and State v. Clifton, 247 La.

495, 172 So. 2d 657, 667 (Sup. Ct. 1965).

In Rodriquez v. Rosenblatt, 38 NX. J. 231, 295, WT A. 2d

216 (1971) the New Jersey Supreme Court held that, as .

a matter of fairness, an indigent charged with a non-in-

dictable offense is entitled to assigned counsel when a

conviction would result in imprisonment in fact or other

“consequence of magnitude.”

The court in Rodriguez stated:

“Our municipal court judges have had and continue

to have broad discretion to assign free counsel to

indigent defendants wherever justice so requires.”

58 N. J. at 295.

No provision for compensating counsel was made in the

opinion. It is obvious that if the court had wanted to

relieve the attorney of his already existing duty to render

free services in the municipal courts, it would have done

so in the opinion. Since it did not, the traditional obliga-

tion of lawyers continved to exist when defendant re-

fused to accept her assignment.

The court's decision in Rodrigue: anticipated this

-Court’s opinion in .lrqersinger v. Hamlin, —— U. S.

—., 92 S. Ct. 2006 (1972). Nothing in the latter opin-

ion indicates that an attorney's constitutional rights are

violated by state procedures for assigning counsel with-

out compensation. In fact, it is noted in the concurring

opinion of Mr. Justices Rhenquist and Powell at 2022,

n. 21, that compensation for counsel ix often ‘madequate.

The Court did not sugze=t. however, that this was of con-

stitutional import.

In State v. Rash, supea it was noted that the burden on_

the bar coukd reach such dimensions as to violate due

but such an extraordinary stage had not yet

been reached. At that time (1966) the svstem of assign-

ment without compensation applied to crimes, juvenile of-

fenses and non-inedictable offenses. The Publie Defender

statute, N.JS.A. 2A:ISSA-1 ef seq., Lo 1967, « 3, has

since provided for public representation im the area of

erimes. State in luterest of inuthony Auton, Jr.. supra,

provides for compensation for attorneys assigned te rep-

resent indigent juvenile offenders where imprisonment

likely would follow conviction. Therefore, a great deal

of the burden which existed at the time of Rush has now

been lifted from the bar. If the due process argument

was not viable then, it certainly is not now.

It is undoubtedly true that the number of assicnments

in non-indictable offenses will increase ax a result of the

Rodrigue: opinion. llowever, there has been no demon-

stration that at this point the increase has so burdened

the bar as to give the due process argument vitality.

Surely, if the New Jersey Supreme Court had felt so, it

would have provided for compensation to attorneys in the

Rodriquez case or Wy administrative directive. As noted

in Petitioner's brief the Administrative Director of the

Courts of New Jersey explicitly stated that the Rodriquez

decision did not require er authorize such compensation

(PalS).

a

8

CONCLUSION

A contemnor may not argue on appeal that the order

contemned was based on error in fact or law. He must

seek orderly judicial review of that order without dis-

obedience. Therefore, the State of New Jersey contends

that the constitutionality of the assignment system in New

Jersey is not properly before this Court on review.

Furthermore, this Court has indicated that no constitu-

tional restraint proscribes the assignment of lawyers, as

officers of the court, to represent indigents without being

recompensed.

For the above reasons, we respectfully request this

Court to deny Petitioner's application for a writ of

certiorari.

Respectfully submitted,

Grorce F. Kvaier, Jr.,

Attorney General of New Jersey

Attorney for Respondent.

By: Joun A. Brocan

Deputy Attorney General.

Joun A. Brocan,

Deputy Attorney General,

Division of Criminal Justice,

Of Counsel and on the Brief.