Amicus Curiae Brief — Nellie Swarb v. William M. Lennox

Supreme Court brief1972

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Cases (Cont' a. )

Crain Vv. United. ‘States,

162 U.S. 625 (1896)

‘Curtis Publishing Cq. v. Butts

388 Re .S. “1s! , 143 (1967) .-

De .La Rosa v. Credit Bureau

of Santa Clara County, .

_ #7773, San Benito County

Superior Court —

Equitable Life Assurance Soc.

.of U.S. v. Mercantile Commerce

Bank & Trust Co.,:

(143 F. 2d 397 (8 Cie. 1944)

Everhart Vv. State Life Ins. Co.,

154 FP. 2d 397 iu Cir. 1946)

’ Fay v. Noia,—

372 U.S. 391 (1963)

‘Federal Deposit. Insurance Corp.

“oy, Steinman, -

53 F.Supp. 644 .

Garvey v. Blatchford Cait

Meal Co.,

.119 F. 2d 973 a3 Cir. 1941)

Goldberg Vv. Kelly, -

397 0.8. 254 (19.70)

Griffin v. I1Yinoit,

Helvering v. Bini D'Co..,

70. F.2d 761 (D.C. LAE s 1934)

20-

- ‘ “14

oeeminaaehh anes + dmhin 3 taeeietaiaat tals

Gases (Cont'd.)

- . Higgins v.. United States, _

" Johnson v. United States,

318 U.S. 198 (1943)

Johnson v. Zerbst, .

304 U.S. 458 (1939) .

Madsen v. ‘Travelers Ins,Co.,

52 F.2d (8 Cir.1931)

Mullane v. Central Hanover

Trust Co.,

339 U.S. 306

Ps .

“Northwest Creditors Service

v. Chapman, . ay ,

#196863 (1970).

Ohio Bell Telephone Co. v.

Public Utilities Commission, |

30KM.S. 292, 307

Patton vi“United States,

281 U.S. 276 (1936)

’. Sanders v. United States ,~

373 U.S. 1 (1963).

Simons v.. United States,

119 F.2d 539 (1943)

. State Farm Mut. Auto Ins.Co.

_V. Retsch, |

- 261 F.2d 331, (10 Cir.1959).

35°

18,2222.

34,37,39,

“22

3° 27 \

40.

22)~«

ON te 00 0D AG Ae PA Se

Cases“ (Gont a. )

Van Bourg v. Nitze,

388 F. 2d 557 (D. Cc. Cir.1957)-

- Viereck v. United States, ...

318 U.S. 236 (1943)

Von Moltke v. Gilles

332 U. =. 708, 723-724 (1948)

Wheeler v.° Montgomery ,

C.A. No. 48303 (N.D. Calif. 1969)

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“TABLE OF “auryorrtzEs crmep

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| : "Statutes: —

ets 15° v. S. c. "1602 (Truth-insLending Act) -

| 12 es FBG a4 (Régulation Z)

34° Fea. Regs. 8698 soto! oe

16 Cal. Admin. S $600 cee Set,

Cal: "Bus. & Prof. /C- $6850

a Bek, Bus. & Prof, ‘ee $6947. 2

" cal.civ. c. $1750: (Consumers' Legal.

De Page eee , Remedies st): :

Cal. Civ. Cc. $1801 eas |.

/ @ak.Civ. C. §1804(c) , ee he

pe ‘Cal. Civ. c. §2981"

Cal.civ.c. $2983,7

€al.Civ.” C.. §5117

Cal.civ. Cs $5118 |

| Cal.c.Civ. Proc: 439 eee oat

Cal.Fin. c. 18003 re eae :

‘Cal. Fin. Cc. $2209

Cal.Fin. c. -§24208° |

~ can. wal C..§17300°

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TABLE or AUTHORITIES CITED

\ee aoe Somentaries

28 Am. Jur. 28 839-8400

ened « at!

,28/ am. sur. 2a’ 846-850

a @;

: 92 ¢. 3.85: 1055-1060 ed

. 92 c. J. s. 1066-1068 ge CE FGhmeat,

- @

: Hopson, “Cognovit gludgment: aS

ae Ignored Problem of Due . —

_.Process and Full Paith a

‘S08 Credit," ;

~ 29 U. Chi. L.R. dit, 7

126-136 (1961). . :

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aan INTEREST OF THE AMICI cabs.

a 7 PACTUAL CIRCUMSTANCES OF: AMICT.

| Swarb _ involves clauses written into

‘consumer contracts | confessing. judgment:

thereon.! Amici are. concerned with con-

» fessions not only in that context, but

| also where signed separately from the |

« contract.after an alleged | default.~ Amici

Babcock and Nunez are persons who have is

executed confessions ‘of judgment in favor

. of a collection agency, H.P. Sears and

_ Company, ‘of Bakersfield, California. _

. Amicus, Sophia’ Babcock is a Greek _immigrant

who speaks broken ‘English and: reads: English

‘not. at all. Her earnings ag a waitress a

average about $45 per week. The debt on

which Mrs. Babdéock confessed judgment was

incurred by her husband long after he de-

serted her. It is ther@fore one of which

California law absolves her -- although, of

course, Sears' employees have never so

informed her. 3 After its amp ioyees visited”

we a 2

l. Wereinafter, such clauses will be

_ described as "cognovits.".

XN 2Qs- ‘After the events herein related, amicus.

Babcock was injured in an “accident as a

‘ result of which she was unable to ontinue'

werk. Her sole income at this point derives .

from Workmen' 8 Compensation PRVSSALES

3. "Thea@arnings.. .of the wife are- not

liable for the debia of the husband...

[except for necessities. furnished him] while

they are’ living together..." Cal. Civ. Code é

5 $5117. (emphasis added).

Le (Continued next page)

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“her home and several times called -her late 7

at night, Mrs. Babcock was persuaded to go

to Sears' office. In the course of #ne en-.

suing lengthy conversation, she was preésen- »

ted with the confession of judgment. — She ©

waS told only that this was "needed for our _

files" and that its, execution. ‘would settle

the matter so that ‘she would receive no

further phoré<ealls. Two weeks. later it’

-was filed and judgment taken against her in

the Bakersfield Municipal Court. 4 ;

Amicus "Nunez was éiiiea” te an Order of

Examination? handled by a lay employee of '

#H.P. Sears, who thereafter demanded that

Nunez sign a confession of judgment as to

several entirely unrelated debts. Since

Mr. Nunez neither speaks nor reads English

he was accompanied by his job counselor

from the California State Department of

Human Resources Development who-undertook

to translate the confession for him.

Unable to translate it because <she. herself.

did not understand its meaning,’ the

aera : es 7473 |

(Footnote. 3 continued)

"The earnings and. accumulations of: the.

wife. -- while she is living separate from her

husband, are the separate property of the

wife." Cal.Civ.Code’ $5418.

ok, Research by amici ‘indicates. that in the

space of a 10-month period H.P. Sears and

Co. filed 131 confessions of judgment in

“the Bakersfield Municipal Court. .

5. A California post- judgment procedure

whereby -a court orders a Judgment - -debtor to

_ appear: and answer questions: directed to’ him

bythe plaintiff or hi's representative as

‘to income, Maets, etc.

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translator asked Sears' employee to explain

it to.heri) He replied, in words or in .

Substance, "I. take the Fifth Amendment." — ;

He told Mr. Nunez that refusal to:sign would

result in litigation and taxation of court———

costs..-- but did not mention that two of & ..

“the three alleged debts were barred by the

statute of limitations and the other was. | :

‘Qme which collection agencies gre forbidden

- by California law to litigate. | Unaware of |

this, and unfamiliar with American law and

procedure, Mr. Nunez signed the confession

because (as he explained later to his

attorneys) "If you go to, court there is lots

of trouble and you might have to go to

., jail." Although Mr. Nunez,. who is on wel-

_fare, has beén unable to pay anything on _

the alleged obligations\+- and has been. in-.

structed by his attorneys not to do sq --

_ the confession has never been filed. — :

6. The confession signdt by amicus Nunez

is attached hereto as Exhibit B. The two

debts in question include the—biil from -

attorneys- ue and Goodsell which is over ~

three years old and two from the Kern County.

-Hospital, one of which is over six years old.

4 Cal.Welf.& Inst.C. §17300 requires that

county hospital bills be collected by public

officials rather than referred to collection

agencies. On at least twenty-five occasions

attorneys for amici CRLA and/or HAKERSFIELD

have: interposed demurrérs in cases in which

#HL.P. Sears attempted to collect hospital “©

, debts and each such demurrer has been sus- .

' tained upon Sears' failure to file a response. ~

Finally, under Cal.W. & I. Cc. §17300

. only persons who were not indigent at the .

time the services were'rendered and are not

. (Continued next page) |

ia ai alte

| Amici Greater. Baker#fiea Legal °

Assistance, .Inc.,: and California: Rural ete

Gegal Assistance, Inc., (hereinafter ree eee

BAKERSFIELD. and CRLA respectively) are ot

legal services ‘programs funded by the

United States Office of Economic Oppor-.

-tunity to provide legal’ assistance to.

indigent | individuals in the communities

they serve. Each program has clients who.

have executed confessions of judgment in

favor of H.P. Sears or other. collection

agencies. Not one such client received .

any explanation of - legal significance

before signing the. confession of judgment ,

n re any of them otherwise aware ‘tof

the significance of what they were sign- 83

ing. In many cases -- including all ee

where H.P..Sears and Company was involved

-- the signers were more or less actively

_migled to believe that they were aed

(Footnote 6 continued)

now indigent are: hiabpe for: county noneita®

bills. Moreover suit’ can be initiated only.

upon @ request by the Board of Supervisors

‘for the county counsel to do so. . Tram it

has been held that both indigency and the ..

board of supervisors’ request. must’ bem .

|. specifically’ alleged and proven before

judgment can be had for a county hospital

* bill. Santa Barbara County v. Motiical, © —

10 C. A. 3a 249, 254, 88 C.R. 111, 720 (1970).

Needless to say Mr. Nunez' confession con- .

tains none of these allegations, perhaps R

out of oversight, more probably ‘because

they: could not truthfully be alleged. What-

ever the reasons, howe er, the hems tapeeenda

- Swouta clearly be legally insufficient to.

“support a judgment. -- if there were some

way to bring its deficiencies to the.

attention. of the trial OES that is.

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‘complying with: some procedural formality

~ of” ‘the SOL leet Lee agency.

T< -Amied parkaae, Hei gtvorncoa ; Legal

Services, Legal Aid Society of San Mateo

County, San Francisco Neighborhood Legal

' Assistance Foundation, Tulare County Legal

Services Association,: Legal Services tf “oN

“Centers of Ventura County, Legal Aid :

Society of San: Joaquin County and Legal

Aid Society of Marin County are legal ~

. services programs funded by.the Office of

‘. Economic Opportunity. Although. none of

“them have clients who have-executed con-

fessions of. judgment in favor of H.P. ‘Sears,

they join in the sentiments expressed in

this brief... . 4

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<IN CALIFORNIA™ 4 ss es | Le

: Ai ghoosh California's s law of confes-

‘-efen of judgment is conceptually identical

» _ to Pennsylvania's, the eae proce-

-. » @ures are’ rather dif "California law

-:* “contains no provisi sanudciog notice to

_ the defendant of entry of a judgment.

by confession. Only if the deféndant

‘becomes: aware of its entry c&n he move to

* have it set aside, the grounds, being 3 eae PP

‘ 3 arene: neglect, mistake or intrinsic Pa 1

extrinsic.fraud which prevented the | +o a

‘ presentation of a colorable defense, .'. GS

While at first blush this might seem a > :

far. less onerous procedure than. PennsyS- . oe

Vania’ s, its practical effect:is‘much the .° ‘

. »feame, particularly. for the indigent defen- Be

+ d@ant. A. defendant served in ‘the normal _

* fashion with a summons. and complaint ‘may

a put the matter at isgue by stating his.

; . @efense in.a simple answer -- 4 which, ° Rao

| phe may even do orally to -the clerk of the ieee

_). “court. After judgwhent has been entered'” |

~ ° by confession, the defendant (evenif he

‘understood the esoteric legal principles —

involved) will need the” aid: of an attor-

ney. in drafting the. papers evippaccon a to

- set At. anise.

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Oa oe ely Wi ese We

we California law: forbids the, inclusion

“eft ¢

. ionfessions of judgment in -a_number of

-the kinds of contracts involved in Swarb,

@.g., retail installment sales,° lgans

Lan

| made by personal Property brokers,’ and

" ment signed by amici were obtained ex-:

(It will be -

other loan companies.

remembered that the. confessions of judg-

Clusive of, and, after the alleged default .

On, the contracts involved.) On the other —

. hand landlords, doctors, clinics; hospi-

tals and purveyors of many other goods and

services in California are not restricted.

in requiring confessions in any contracts

Which they make. . ivelis. «Smee *

. , , , : , : me wit “oe 3 yf me

8. Cal.Civ.cgde $§1604.1(c), 2983.7(b).

9. -CalsFin.Code § 22009, | | =

«20. Cals Fin:Code §§24208, 18003... |

—

. SUMMARY OF ‘ARGUMENT

.‘ Ie The right to an opportunity for

a hearing is, not waivable because that

right is of khe essence of dus process. and

the adversary system without Which a court

cannot operate. A. procédure which results

: dn denial of any Opportunity for a de- |

- fendant to appear Se ee sub-

ject to abuse: as to be cofs

titutionally »o.

impermissible.- A waiver of procedurd4l

rights made long previous. to judicial pro-|

ceedings, and for reasons extranBous to _

_ those proceedings, is invalid: Courts *

‘exist to dispense justice without regard -

to wealth or poverty, not to effectuate

the distress sale purchase of the pro-

cedural rights of the poor by the rich...

twee confession. of judgment cannot

evidence a constitutionally valid waiver: |

(1) because defenses may have arisen since

its execution which weresnot known and

understood by the waiving-party at that

time; (2) because the waiving party may: not

have understood his extant rights and*~. _

defenses at the time he executed the con- .

fession; (3) because the waiving party may |

not have understood what the confession |

was. Since the purpose of a confession is |

to avoid any appearance by the waiving . )

party, confession is necessarily antitheti-

cal to the individualized scrutiny which

is required to validate any waiver of appear-

ance or counsel. Pennsylvania has adopted

& procedure for accepting waivers of con- _

. Stitutional rights which fails to provide

even minimal assurance that such waivers .

are knowing,‘ understanding and voluntary.

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I. THE RTUNITY TO TO APPEAR

WHETHER FOR THE | PURPOSE OF DEFENDING OR

_ WAIVING 18 | $O FUNDAMENTAL | TO: DUE PROCESS

THAT IT CANNOT BE WAIVED IN | A , CONFES SION

-. «/ Courts and. commentators have so —

times endorsed the. manestors have some- mere:

that all constitutional rights | are sub-,

ject to waiver.?” In considering such state-

ments it is necessary to note the vast . he

differences between the contexts in which

they are generally made’ and the context.

of confession of judgment. Almost in-

variably, such statements appear in cases _.

. in which. a criminal. défendant, having: ac-.

quiesced in a procedure throughout his ;

trial, seeks ‘to object to it *after judg-

ment has: been Yendered against him. Thus

. the waiver or waivers involved will have

_ been made after full opportunity to ap-

-pear and defend. Such waivers. having been

made by the defendant in person, the: ° [a

court will have been able*to make some

assessmept of his English and ability to.

comprehend our procedures -- unlike..a

confession, whose signatory may be un-

educated and either completely illiterate,

or, like amici: Babcock and Nunez, illiter- ~

ate in English. Since such @aivers are

‘made in open_court before a disinterested

judge, there is no question of immediate

‘ coercion, mental overbearing or ‘mislead- -

ing -~ unlike the signatory ‘to a confes-

sion whose je parties wh will- have ‘come

“em adverse parties yon By the very

Bee e. Bs 28 “Am. Jur.2d B46- 850. 92

Se 1066 - 1068 and. cases there cited.

. in .

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act of obtaining a confession, are ingula

‘ting their conduct from scrutiny. Such —

waivers are accepted only after the de-

fendant has received an explanation of

‘the rights he is foregoing -- unlike.a

confession whose signatory may have no know-

ledge of his righta. at the time of execu-

.tion’ and who is wafving an Opportunity to

present even those defenses which arise

long after signing. . hee , ,

gg Even with all the safeguards which

accompany normal (i.e., non-confessional)

waivers, the law; as we shall see, is.

extremely chary of them. Nevertheless,

when all those safeguards are present,

the defendant is properly precluded from |

tardily attacking a judgment rendered

' "Any other course would

not comport with the . |

sped et for the admin-

‘ . ." istration of criminal

‘justice. We cannot —

permit an accused to

_ -@lect to pursue one...

| Course at the trial and

then, when that. has

proved to be unprofit-

_ able, to insist on ap-

peal that the course |

which he rejected at the

trial be reopened to him..

However unwise the first

the court with depriving |

~ him of a fair trial.. The. -

court only fdllowed the’

» * Course which he himself

‘ helped to chart and in

which he acquiesced until

the case was argued on

* appeal."2 — |

. » Those considerations notwithstanding,

‘it is\clear that there are some rights that

simply cannot be waived, even with full

understanding and capacity and the advice

of counsel. Perhaps the most obvious are |

those created by the Thirteenth’ Amendnient.

No one would sériously suggest that a |

creditor could enforcé a contract whereby

\a debtor pledged himself into peonage or

\invatuntary servitude in the event of a

efault. The same is true of the prohibi-

tion of cruel. and unusual punishment: One

might inagine a criminal defendant emphas- .

izing his innocence and horror of the crime

involved by dramatigally volunteering to. :

accept death via Auto-da-fe if con- _

' Micted. But a court could not. subsequently

impose such a penalty on the’ ground that |

the defendant had waived the Eighth Amend-

ment. And this Court has. squarely held

that there can be no waiver by failure to

object, or a criminal defendant's right

not to be tried under an ex post facto law. °

Crain v. United States, 162 U;s. 625 (1896),

Sapproved on other grounds Patton v. - “2

- United States, 281 U.S. 276 (1536).3

} sD : Ce NS. |

2. -Johnson v. United States, 318 UisS. 198,

201 (19h3). : Netug

3. See also Viereck v. United States, \318

U.S. 236, 248 (1943) ¢judge had responsibi-

lity, independent of any objection on part —

of defendant, .to assure fair trial by re- °

‘buking prosecutor for raising ethnic pre-

. Judice in closing argument.) —

. «In Boddie v.’ ellie 39° U.S. L.W.

Pacts. (1971), this Court seems, although.

A wae red in a very different context, to.

e disposed of the basic question in this,

“ae At’ page 4296 of 39 Y.S.L.W.,. the

opinion distinguishes between a hearing,

“which Can be waived, and ‘the opportunity ©

for a hearing, which cannot:

ar "Due proces does not, . he

“- “ @£ course, require that

. the defendant in every. _

. Civil case actually have

a hearing on the merits.

A State. can, for example, |

-, enter a default judgment ~

against a defendant who

after adequate notice, fails

to: make a timely appearance...

'. What the Constitution does.

. require is ‘an opportunity...‘

.-.'for.f{a) hearing apptopri-

ate to the nature of the case,'

Mullane v. Central. i anover f

. Trust Co., [335 Us. }, at

‘p- 313. That the hearing birt.

' ., Yequired by due. process is ~°

: . gubject to waiver, and is. 4

-. not fixed in form does not

.. affect its root requirement

that an individual be given

, an opportunity: for a. hearing..."

“The icin ola eines of. the opportunity for

a hearing arises from the fact that, __. . Sees

BOP scx gaan system presupposes (and its opera

tion is ndent upon) an adversary se

process ibe minimum elements of which are

embra the concept of due process of

. law. : -A-court which operates without the >

ne adversary process, which operates outside -

the erento of’ Sane he we call due Process

"examine an adverse witness): is obviously a

eee a3 : a

f 2 eng ee 3

of law, is a contradiction in terms -- it.

is t.a court. As one decision: puts it,

a court which operates on confessions of

judgment is "a slot machine,"4 acollec- -.

tion bureau operating under, the guise of a :

public agency... ©

. \

«a

| The unwaivability of an opportunity:

to appear is in no whit inconsistent with

the many cases holding that a defendant

may waive a particular right or procedure

even if it is inherent in due process." .

‘Whether a defendant in a particular case’.

Should exercise a particular right which

in the abstract is inherent in civil or

criminal due process (e.g., to take the

stand in his own defense, or to cross-.

matter best left -to his considered judg-

ment. Indeed, it is probably an.element |

of. due process that the litigant be allowed.

to determine for himself whether the - .

exercise of any particular right is neces-

Sary or conducive to making his case. That

a man may losé a right by deliberately

failing to exercise it.at the appropriate

time is a familiar principle in i. a

‘ Cf. Boddie v. Connecticut, supra.. This is

far from saying that future rights are |

_irrevocably alienated by an act which may.

- have been dictated by economic necessity

and which,. in any case, occurred long _

before the litigation between the parties

was even contemplated. There is. a‘basic

distinction between a waiver made in open

- .court,.or after there has been the oppor-—

_ tunity to appear, and waivers oe

€o. v.

4. Columbia Sand and Gravel :

D.C.) Bk.

‘Stresbilt Tile Co., Wash.

82, 88 (1928).

‘marketplace. Our Constitéition reiterates

King John’s promise "To no one will we sell.

-«»right or justice." Griffin v. Illinois,

351 U.S. 12, 16 (1956) (plurality Opinion

of Black, J.). The acceptance of waivers

made in the course of litigation, in con-

_ templation of the judicial process and -for'’

the purpose of obtaining some advantage

therein, does not breach that promise.

But surely a court is selling justice when |

it accepts a waiver made in the marketplace

far the purposes of the marketplace =-- a-

_ waiver obtained as part of the price of the

goods or an opportunity to redeem a default.

A simple illustration will suffice: Could

any court properly give recognition to a

‘provision in a consumer contract that, in

the event of litigation, the buyer may not

cross-examine the witnesses presented by

the seller? Obviously not, for, wnlike the

marketplace, access-to the essentials of —

justice is not. determined by the respective

Capital accumulations of the parties.

Courts exist to dispense justice without

regard to wealth or poverty, not to effectu-

ate the distress sale purchase by the rich

of the procedural due process rights of the.

- The many cases holding that a criminal .

. defendant may, .at time of trial and after -

full opportunity for advice of counsel,

forego any of his procedural due process

rights do not Support. the -proposition

3 3

‘that a defendant may ee the adversary -

process itself by. Ronfesaing judgment. 5 a

The. language or the Court of apydets yer te oe

aw the: Ninth Circuit in Simon v. United yun ty

States, 119 F.2d 539 (1941 ) seems pertinent ;

"Defendant urges, ‘hovever,

that he has not been accorded

due process. As we have said.

_ above, the jurisdiction. of

the court to try the case is |

subject to the ‘controlling .

‘provisions of the Constitu--

tion. . The Fifth Amendment

‘to the. Constitution provides

that no person shall be .

depri¥ea of life, liberty,

or property, without due

process of law. We take it

that any waiver. of | the 4 ‘defena- ©

- ant woulda be ineffectual if.

it went so far as as to deny bis

due pro process of law..

"Due process of law in a

criminal proceeding has

been defined as consisting

of ‘a law creating or de-

fining the. offense, an ;

imBGrtial tribunal of con-

\; petent jurisdiction, accu-

\Sation in due form, notice .

‘and opportunity to defend, — .

trial according to estab-

lished procedure and discharge

‘ unless: found guilty.'" See ©

§579, ‘p- 1171, and cases cited. |

ez, =\,

2 : : 16 - >

. Again a simple illustration’will suffice:

Could a state authorize its courts'to

_ adjudge criminal: cases without ever seging #~—

_, the defendant, simply on the basis of his

confession of judgment presented by a.

.Police*officer or by a prosecutor? Again

the answér is obviously no, despite the- ~

. potentialities of such @ procedure for §_

reducing the congestion of: court calendars. 3

and the costs of the administration of ©

criminal justice. Such a procedure is so

inherently subject to. abuse and so in-

consistent with the solemn duty of the ag

court to do justice that the mere sugges= ws

tion of its adoption in the criminal area

strikes one as absurd: | Why then is it an

appropriate device in the adjudication ‘of

civil cases? It is surely not because the -

_ employees and lawyers of collection . YS eae

agencies and finance companies, etc:, are

less likely to abuse the court's trust

than our police and our public prosecutors.

Nor is it because the police would have any

greater opportunity to improperly obtain

. confessions of judgment. Though the police

have greater coercive power over aman in

their custody, by. the same token they have

. infinitely less opportunity to deceive. :

The police could not hope to convince’ a

person who had been subjected to exten-

sive interrogation to sign a statement —

“for .our records" as the collection agency

convinced amicus Babcock to do. Finally,

even were they no more scrupulous-than .

collection agencies, our police must...

contend: with the fact that prisoners will

eventually appear before a*disinterested

judge who will inquire into the circun-

stances in which they signed any statement

- elude appearance of the civil def

before a Miainteresten judge.

very: ‘purpose: of such. a document. is. oe

digactons

It may be sucsestad: that a confes- —

sion extinguishes no more rights than does.

a guilty plea.or a default in a civil case.

_» But poitnes a: guilty plea nor a default may

<* occur wi

hearing.

hout . an opportunity for Rig ai.

As a practical matter, judgment

by default is justifiable within. due .

process because it is .an absolute neces-

sity. to the. functioning of the system of

-eivil justice. .

to compel civil d@fendants to. appear and

make a DACAs:;

As New York’s ndghoot’ court said in

refusing Smee ane S0enornte full faith

and credit: : ;

nibaht ¢ contPasten wigh\aerkuat

“or consent judgments, the

harshness and unjudicial-like

procedure of the cognovit 4

judgment is exposed as egre-

gious. Prior .to rendition of

a default~judgment, process

must Have. been served so that

“the debtor is made aware’ of

the pending action, and the.

plaintiff must have filed a’

Therg exists no mechanism

a a default aia. not operate:

complaint pleading a good ‘cause

of action [citation]. The con-

trast’ is even greater with

“respect to consent Judgments. -

A judgment. by consent. as an

agreement between the parties

‘at the commencement of. an |

7 action upon the terms of the

pude gment is a ‘product of con-

emporanéeous Bar eserel action."

petes ‘Credit ge dy Ezrine, . -

2 2, " 288,: 215 "NE. 508 a h7h (2969).

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; to assure judgment: for. laintiff, every | ia

civil defendant would Find it cheaper ae

“more convenient to default than to appear,

ei matter how air-tight his ‘defense.

3 We técognixe that sometimes a ‘default

_ May occur ‘though a defense exists because -

: the defendant is indigent and unable to —

_ ‘present it without counsel. ° Once again, _

however, default under, these circumstances

satisfies due process because no other

practicable altérnative exists. The Con-

stitution has never been interpreted _ wea

require states. to proyide counsel. for the - -

indigent civil defendants. In the absence

_of.such a requirement, and of a default |

judgment procedure, indigents wousd: ae ;

wholly rent ocr tined AT te care) she Boil ck

7. Both default aaa confession Lavoive the

possibility that.a judgment can be rendered

which would not have ‘been rendered had the.

defendant been advised by counsel. at a

certain crucial point. The appropriateness

of this in the case of a default merely ~- i

accentuates. the difference’ between a default

and a confession. A default is not a waiver,

_but rather a foreclosure of rights by stand-

ing on them. ' A man may lose rights and |.

defenses of. which he is ignorant by inaction

and/or inattention. But a waiver. consists i

in the relidquishment only of known rights. Te

Cf. Johnson v. Zerbst, 304 U.S. 458 (1939).

/A waiver is a gratuity and a. gratuity, setae:

_@ matter of intention, grants only those ae

_ things which the grantor had in mind when: he

ted it. To the extent that the grantor

- fab ignorant of his rights, he could not.

/ bive’ them avay.

es.

’

aes

. In contradistinction,;. confession 6f

judgment is in no way essential to the _

operation of civil justice -- as is demon- -

' strated by the fact that confession does

not exist in-many states and is severely

restricted in many others.8 The state in

recognizing confessions has unnecessarily |

- adopted a procedure which maximizes all.

the dangers, problems and faults which have

been so carefully minimized in connection

with defaults. A default is taken under.

the supervision of a neutral court, after

notice which at least acquaints the de-

fendant with his need for advice and allows

_him to approach the court’ clerk for some

information as to what is happening to him.

A confession is ‘taken under\the super- |

vision of the adverse party's employees,

they alone being available to\ answer any.

questions which might be asked. A default

occurs with reference to specific causes"

Of action for specific sums concerning

_Specific transactions. A confession is-a

general license to take judgment for an.

unspecified sum on, the basis of a future

default which the defendant will have no ,

Opportunity to explain or justify. Finally,.

a party filing a complaint is deterred from ©

either intentional or negligent misstate-

‘ ment by the possibility that the defendant

« .

8. Cf. Hopson, "Cognovit Judgment: An

Ignored Problém:of Due Process and Full

Faith and Credit," 29 U.Chi.L.R..111,' 126-

136 (1961). Professor Hopson finds that,

"...only Illinois, Pennsylvania: and Ohio

specifically allow for atid do not, in some .

way, restrict. cognovits. [These states]

stand in splendid isolation..." (131) of

course limited confession still exists‘in

some states as it does in California.

may. secure counsel either on a fee or on a

pro bono basis. A party filing a confes-

Sion is constrained by no such considera-

tion. —

The waivers involved in a confession of

judgmént are ineffective for the same rea-

sons that the ex post facto clause and the

prohibition of cruel and unusual. punish-

ment cannot.be waived: Such waivers serve

no legitimate purpose of the judicial pro-

cess. The only possible legitimate judi- |

cial interest which confession ‘could serve |

is reducing congested court calendars .

through the non-appearance of those who

have no defense or who wish to present

none. But the law forces no man to appear

in court. Those who do not wish to pre-

‘sent a defense need not do so,. and judg-

ment: will go by default. Concededly, there

may be some few. persons.who, but for a

confession,. would go to the expense of

presenting a sham defense in hopes of

either deceiving the court or wearing the

plaintiff down. But that danger is in-

herent in a system of due process which

requires that every defendant have an. op-

_ portunity to speak before judgment is.

taken against him. As ‘a danger it scarcely ~

merits comparison with that of ‘intentional

or negligent deception by a plaintiff ‘who-

knows that the defendant will have no.

aires to. Speak in his" own defense.

Bie?

PG he | eaten OF cies pnoGinune

DOES NOT PROVIDE SUCH EVIDENCE OF KNOW- =

ING ANDp VOLUNTARY RELINQUISHMENT AS IS

* ‘NECESSARY TO A W OF "DUE PROCESS:

RIGHTS. ~ zs dott

Md Assuming, axquanto, that the oppor-

tunity for a hearing may be waived at all,

the question becomes whether confession ~

can constitute an effective vehicle for

such waiver. Courts “do not presume ac-

quiescense in the loss. of fundamental

[constitutional] rights.:"9 Indeed they

will “indulge every reasonable oe

tion against [such] ‘waiver..."1 |

consequence, the - of proof ne

always be borne py © party ene

the waiver. 11 3

_In the context of the due ‘process

clause, waiver consists in “the inten-

tional relinquishment of. a known right

: —9Ohio Bell Teléphone Co. v. Public

Utilities Commission, 301 U.S. 292, 307

(ger), Johnson Vv. cEEESty 30h U. S. 458,

~ 46K (193! ,

f og? Insurance Co. v. Kennedy, :

- 301 U.S. 389, 393 ay 7), ‘Johnson v.

Zerbst, supra.

llpuder v. Piske,. ‘17h Fea. Spee .

(8 cir.1949), Garvey v. Blatchford Calf

Meal Co., 119. F2a 973 (7 Cir.19h%i), to

Madsen v. Travelers Insurance Co., 52. et ist =

F.2d 75 (8 Cir. 1931)5 and cases there 2

cited.

. OF privilege." Johnson v. Zerbst, 304. '

U.S. 458, 464 (1938) (emphasis added) .12 :

| l2mhis classic definition, though

pronounced in a case concerning the rights |

of the criminally accused, appears in

virtually every succeeding discussion of

waiver both in connection with, other

constitutional rights and with statutory,

common law or contract rights. Cf. Curtis

'. Publishing Co. v. Butts, 388 U.S. he 143

(1967) .(First’ Amendment rights), Aefina

Insurance Co. v. Kennedy, 301 U.S. 389 _

1937) (Seventh Amendment right to trial -

by jury in civil cases), Ohio Bell Tele-'

phone Co. v. Public Utilities Commission, ~

301 U.S. 292 (1937) (Due process rights -

in rate-fixing hearing), VanBourg v. |

Nitze, 388 F.2d 557 (D.C-Cir.1957) (Sta-

_ tutory Sec in administrative hearing.

process), Chambers & Co. v. Equitable —

Life Assurance Co., 22h F.2a 338 (5 Cir.

1955) (Contract rights), Helvering v. te Ae

Ethyl D Co., 70 H.2a 761 (D.C.Cir.193h) 3

(Statute of limitation governing liability .

for back taxes). See generally 28 Am.Jur.

2d 836, et seqg.s- and 92 C.J.S. 1041, et seq. _

_ See also Barber v. Page, 390 U.S. 17 (1968),

Application of ae ee eS ) (1967),

‘Fay v. Noia, 372 U.S. 391: (1963), Albert

ve Labeda. 9F4-9 80 236 (9 Cir.1959), 4

Equitable Life Assurance Soc. of U.S...

WwW. Mercantile Co rece Bank and Trust Co.

- 1h3 F.2a:° 397 (8 Cir.19h4k), Everhart 7. si

State Life Ins. Co., 154 F.2a 397 (7 Cir.

19h6), State Farm Mut. Auto Ins. Co. v.-

Retsch, 26] F.2d 331 (10 Cir.1959), Cook —

Vs Commercial Cas. Ins. Co., 160 F.2a 490 ~-

vy)

’ ve

' .A. NATURE OF: THE ERRORS BELOW -

: To ke effective any waiver must meet

two tests: (1) The party must have under- ~

stood that he ‘was waiving something (156.7.

that his act was a waiver); and (2) The party

must have understood what he was waiving.13

Though the court below held that some confes-

sions may not. meet the’ first test,14 it took

no cognizance whatever of the second. test. 15

Moreover, it is our contention that the court

_ below failed to recognize an entirely dif- | 5

ferent issue, the inconsistency of confes- - sae:

Sions with, the. individualized scrutiny | which |

is prerequisit« to judicial acceptance of

a waiver of basic due process rights .,16.

Aiveeuts we are primarily. concerned

with the validity of-non-cognovit. confes- Ra

sions, we do not separately deal with a

third requirement: That the waiver: was

free and ‘voluntary. The issue of whether

@ waiver in an adhesion contract can be se

truly voluntary is dealt with in appellants’

‘ brief and the amicus brief of the National —

Consumer Law Center. -

lisee discussion - sigecnt ie D of

.. this Part. ee ae ss e

15see. discussion at subsectidils B and

c of. this Part<« : ‘

: 165e¢ discussion at subsection EB of

‘tie Part.

- pinalay,: ‘a , aan mnie: error *"

+ cacineaien every aspect of ‘the. opinion ven

low. . That error -is the insistence | se

the plaintiffs factually demons e the

ineffectiveness of the waiver as to‘at least

a substantial proportion of each of the

. sub-classes perceived by the court be

On the contrary, however, it is the statetg |

“. duty to establish a procedure which effec-

tively attempts to assure acceptance of

only such waivers as were made knowingly, -

voluntarily and with untrammelled volition. _

‘Had they proven oniy’ the bare possibility

_. that some cognovits represented invalid

. | ape and that Pennsylvania nevertheless

s ized them without any e nation.

tever, plaintiffs wou ve made out

. &@ prima facie case. It must be remembered

that the very purpose, as well as the opera-

tio, of confession of judgment is to avoid

judicial scrutiny. To justify such a

procedure, it was up to the. defendants to

show not that some, or even most, of the

waivers honored without scrutiny. Were

constitutionally effective, = that all

of them were. This was not and. could not _

be shown, first, because there is no way

-short: of scrutiny to dete e what pro-

portion of confessions of. gment meet.

constitutional requirements; and second,

because the probability. is that a er

| ———* of Gontaasione: do not. :

fe"

awe

res

Di = | Mae? ee Bc ee ee

a ye : 20 ms

B. A CONFESSIQN CANNOT PROVIDE.

FOR WAIVER OF AFTER-ARISING |

RIGHTS AND DEFENSES SINCE THE

WAIVING PARTY COULD HAVE ‘NO.

KNOWLEDGE .OF SUCH WHEN HE EXECU-. ©

TED ITH Oe RS. want hs a

A party Can.waive only those rights | |

or defenses which he knows himself to have.

‘It is hornbook law that one “cannot be held

to anticipate and understand. rights which ~:

'. are not yet in existence and that, there-..

fore, such rights cannot be waived.17 ¢

‘ Applying.those principles to the.

instant case, it is self-evident that the

executor. of a-confession of judgment: can-

‘. not have anticipated rights or defenses | |

which arise subsequent to its execution. . ~~.

—

+728. Am.Jur.2a° 839-840, 92 C.J.8.

1055-1060; Curtis Publishing Co. v. Butts |

_ And Ohio Bell Telephone v. Public Utilities an

“ Commission, Supra. While ‘the lack of know-

ledge involved in Curtis stemmed from the .

fact that the rights involved there had. |

not yet been’ enunciated by this Court, the

principles of that case’ seem equally ap-.

plicable where the rights are unknown

because the facts from which they arose

have not’ yet occurred. Ohio Bell Tele-

phone is even closer since it involved

_ the contentiom that a-company had ‘waived.

its rights by failits to object at 9 rate

fixing hearing to .subsequent’-confidential

consideration by the Commission of evi-.

dence not introduced at the-hearing. This

Court rejected that argument at. p.307 of

301 U.S. with the following comment: “As

there was no warning of such a course, 80

*s @lso there was no consent to 5 em

“26 3

ou 2h Saban \"

. Were every confession of judgment’ ef fectu-

ated contemporaneously with its execution. |

this might ‘not be an objection. Buta ~~

‘cognovit executedéin a contract camrfot in

good faith be effectuated until something —

colorably resembling a F uses hoe eae

event which rex | not take place for months.

or even years:18 A similar time.lag may.”

exist even where the confession is. taken by

a collection agency after ‘the: default has —

occurred, as in the cases of amici Babcock §-

and Nunez.’ The agency might delay filing ~

_ the confession as part of an agreement to

accept installment payments, or simply. be- . .

_. Cause it wishes. to defer risking court —.

costs until the debtor obtains employment

whereupon his wages can be garnished .19

| “In the period between the execution —

of the confession and its filing facts may

. arise which present potential defenses ts’

the obligation. Without attempting an | :

exhaustive compilation of such defenses we

would suggest the follewing: (1) Complete 1

or paxtial paying off of the obligation -

contract by failure to deliver the: goods

or services; (3) Timely rescission upon ~ i

discovery of hidden defects in the goods or

“services; (4) Seller's breach ‘of warranty

by failing to correct defects in the goods _

or services; (5) Extinguishment of the :;

_18ry some states a confession ean be. —_

‘filed immediately after a cognovit is _

‘signed, but judgment and execution must

- await a subsequent pleading alleging default. .

19 although executed on Jan.20, 1971,

amicus Nunez's -confession has never teen °

filed.

is Me . : y -

‘2 Se fe age See dN hte:

PO pe Re ee es : ae

ssiteasiin - a statute of Limitattens): The

(6) Subsequent coMauct by the seller or © ote

collection agency which gives risé to a set- oe

_ Off, counter-claim or cross-complaint;20.. .

(7) Unauthorized practice of law by the col--

lection agency;21 (8) Filing of the action

ina court which. lacks jurisdiction-<f it.22

3 #

20unaer: California law, ay mebeett-

or. claim related to the transaction must be

stated ina counter-claim or cross-complaint

- filed.with the defendant's answer. Cal.Code .

. of Civ.Proc. §439. Plaintirf®s taking of

judgment by confession would ‘presumably ex-

tinguish any such counter-clain. ee be

| 2lcal. ais cone Prof. Code §6947.2. The |

‘Sacramento County Superior Court has recently

held that unauthorized practice of law -con- —

— Stituted:a good defense ‘to a suit by a col-

Leeks neener and has issued a class prelimi-

. nary unction on defendant's ‘ CORRS sOhetE.

Nt st Creditors Servite x. Chapman,

“No, 49 863.(297T0).

Bie Faison se s aru. Retail Instal-

- lment Sales Act's venue provision is juris-.

-dictional. 51° Opinions of the California

- Attorney General 179 (1969)<. It, is not un-.

known in California for a: colleytion agency.

to adopt a deliberate ‘pattern and practice

of filing cases”in. the wrong venue thereby

| meking more difficult the debtor's appear-

ance to defend or claim exemption from wage.

garnishment. Amicus CRLA recently, obtained

& very handsome settlement -in a class action .

raising this issue. De La Rosa v. Credit

Bureau of Santa Clara County, No.7773, San. --

_ Benito County Superior Court (execution =

terminated against class members, .named

plaintiff obtaining $2200 actual and puni--

tive damages, — @iscovery and other

court costs}.

. : , Pe é

o- . : : ‘. ‘ . °

- ' -

: . P * “

& . ‘ Ke . :

ntinespemanmae tani ncee asa RNREE PUREST RNEREEREREER CREE ery < . ae

: nae

aa. pe

ees - Mimi teedly, a salmaaa aeferige-¥il1

not arise in:every case ingen a) nantes ;

‘.gion of judgment is filed--probably not

even in most suech:cases.—But that is ir-

relevant. The'confesSiom of judgment pro- ~§ —

Gedure can constitutionally rest only upon .

the presumptiof that in all cases the de- :

. fendant knew, and intended.to waive, 41l

_-<his rights. and defenses. The confession

Lee ee judgment procedure treats glike those _.

cases. in which the defendant could not

have waived his defenses because.they arose .

only subsequently and those in which no .

' subsequent defenses arose. It provides

_ mo mechanism for differentiating. these

two sets of cases, nor.would the procedure

suggested by the court below suffice. That

_-., procedure entails: merely. investigating

. whether ‘the defendant. knew what’ a. ‘confes-

. gion of judgment was when he signed it. |

/But.in order to determine whether any de-.

fenses arose subsequent to the execution.

“of: the confession it would vbe necessary

either to appoint courisel for the defen- *

dant or in some other way have a legally

competent’ person scrutinize ‘the course

and ‘performance: qt each contract.

2 &

.@i “THE CONFESSION PROVIDES —».

NO EVIDENCE THAT ‘THE WAIVING |

PARTY KNEW AND FULLY UNDER- -

_. STOOD THE RIGHTS AND DEFENSES '

AVAILABLE TO HIM.AT THE TIME. 3

‘HE EXECUTED IT. .

As a confession may “involve: loss of

_ xights and defenses which arise after its.

_ execution, so-also.may it\ involve’ loss of

_¥ights or defenses then extant but of which

the signatory had no knowledge. The. law .

se consumer oo cli collection is

° z

Joe

sree Q

Vietice —

$ ais

St TR Se eo we 6 INS ims >

difficult even for:an attorney to under-

stand. It.involves knowledge of; 4nd

familiarity with, trade practices ‘and the

effect upon’ them of the common law and of —

” At

. 6nfusingly and intricately: interact . oe

With one another.. The’ Federal-TruthsIa-:

Lending Act, and the exte

statutes, themselves highly complex which

nsive regulations @

which have been adopted under it,, make

Some transactions illegal. outright‘and. | -:

limit others.23 The Federal Trade Mark and

Trade Name Act of 1915 would afféct other.

- “2315 U.S.0&%.1601 et seq. and 12 C.F.R

226.1, the so-called Regulation’Z, ~~ |.

Indeedit woula appear,that amicus

Nunez -may have’ a Age pact pig ine gy a

to the confession he signwd in favor of .

H.P.-Sears. terms noted: on the fact .

of the-confession (See Exh. B) include an

agreement to pay off the supposed obliga-" .

‘tion in more than four installments. Al-

though collection practices in general are.

not covered by the Truth-in-Lending Act, .

Regulation 2 provides for a right to re-

acquired in any real. property used as a

scind: and for specific disclosure of the .

same with regard to any collection rrange--

ment involving more than four*jnstallments. es

‘Federal Reserve Board Letter Nol328 (May 20;

1970), & CCH Consumer Credit: Guide $30, 383. :

e The- act also ‘provides a right of re- -

scission as to consumer credit transactions: .

in which a asecurity interest is retained or | Pass

“residence by the consumer, The Federal -_— fe

Reserve Board has-interpreted this to ‘apply’

a me OY OG aes Tees. (cont'd ext page)

. i ee owe

" :

‘

_- Sales Act.

' further governed: sf as ekg s ‘Rees-

mo Levering Act.25 - ;

. Sing: ‘er

under it?

° — ° ‘ «

: . . .

. . e: 30 re 3 ‘

7 3 . : - Soe

‘ ‘ ee

‘ .

. ° a." .

transactions. In addition ‘many Ciscss

have enacted statutes more or‘less com+

prehensively governing consumer trans-

actions, and virtually all states have

some limitation of usury. For'\instance,

most California retail transactions are .

governed i # the Unruh’ Retail Installment ze

Automobile transactions are a’ >:

- 5 ia

t - f

Collection agency practioas are &

governéd by, the Collection Agency Licen-

“the regulations promulgated _ ;

and ‘most t particularly the RRS ne “s

to cognovits and .confessions:

. “(Since they)... have the effect of ee.

~ '-° @depriving the obligor of the right .-° -

“to be notified of a ending action

and to enter a defense™in a judi-

‘ial proceeding béfore. Judgment

may be entered or recorded against

him, Such clauses ané provisions

in thase states. dre security

\ interests under §226 (z)."--Board

_Interpretation, May 26, 1969, 34°.

' Fed.Reg. 6696 (emphasis in? “3°. - oe

original) 7

« | 2hcal. CivsC. $1801, et seq:

| ?5car. Civ.c.§2981, et seq.

26081. Bus. Prof. $6850, et. seq.

27146 Cal.Adm.c.” $600, et>seq.® en noe

32. *. nt

prohibition against unauthorized practice

_Of law by a collection agency.2® inally,

California law makes voidable all trans-

actions which occur as a result of certain

specified misleading or otherwise unfair

advertising or trade practices.29 =. .:

- . It should be evident-that few, if

" any,, laymen will be conversant with the,

defenses with<which such legislation may ’.

invest them.3° tt is self-evident that a :

confession of judgment where such defenses

. exist operates as a license to violate’ the

law and that, if generally allowed, con- _.

fessions.in such circumstances would wholly

nullify such salutory legislation. It is.

- 28cal.Bus.& Prof.c.§6947 - Be ;

29 consumers Legal Remedies Act, - ,

Cal.Civ.C. §§1750 et seq. Wee er

. 30Thus, for instance, amigus Nunez ~

did not know that .his indigency constitutes

a. full and complete defense to the@ounty >

' hospital bills to which he confessed judg-

ment in Séar's sehalf. Cal.Welf.& Inst.

Codé §17300, County of Santa Barbara v. -

Monical, 10 C.A.3da 2h9, Cal..Rptr. 717 :°

(1970). Nor did he know’that, by law,

such debts can-be litigated only by. the

county's ‘legal officers and that only upon

a specifically alleged and proven request

by the county board of supervisors. -See

‘discussion at n..6 of Interest of the

‘Amici. By the same token, amicus Babcock

did not know that California law absolves

her of the debts of her deserting husband

with which Sears tried to charge her. See

ie aii n. 3 of Interest of Amici. °

no answer say that the confession of

judgment i is oe as part of a contract

for which Sthe e. is consideration.31 For |

_the very purpose, of the consumer legisla-

tion here in question was to prevent. the .

- execution of contracts containing certain «

provisions, or under certain circumstances. |

. ‘clause to’ such contracts exaccerbates

‘rather than rectifies the ate. 32" gous the -

legislation sought to. mevaate.

De LAYMEN, AND PARTICULARLY

- THE POOR, MAY NOT UNDERSTAND

WHAT A CONFESSION IS AND/OR.

THAT BY SIGNING IT THEY je

WAIVING RIGHTS

—

ateD

- Confession of pC Eee is. ‘an abstruse

legat concept, the nature and consequences.

- Of which are clearly payoud the knowledge

of the ordinary layman.® Nor is the lan- _.

guage of a confession of judgment clause

likely to provide such enlightenment to °

its-untutored reader. It can not éven be

_ 3lthis statement would, in any case,

not be applicable to the pest-contract

confessions executed oF amici Babcock and

Nunez.

"S2once: again, we recognize that in

_many confession of judgment cases there

will be nq defense available,,whether ex- = _

tant at the time the confession was exe-

cuted or arising afterward. As- previously

- Suggested, whether or not a defense actual- |

ly_exists in-any particular case is ir- -

relevant because the procedure of a confes-

sion is to accept all waivers heedless of

the existence of any unknown defense. See

= discussion at p. 28 supra. :

5. 6

a - : a

b>,

33. -

* read by ‘those who, ‘like amici Babcock : apd

Nunez and many other poor persons,: are

i$literate, functionally illiterate, lit-~

erate only.in another language, or have

grave reading problens. >

a: £

"$3,lechen ° as. Exbisoit A to this

brief is the sworn. affidavit of Frederick

B. Gillette, Director of the Santa Clara

County California Welfare Department which

was filed April $<: 1971, in support of

enforcement procee in Wheeler Vv.

Montgomer pcOcKT No. 48303 (N.D.Calif. 1969).

I affidavit Mr. Gillette discustes

the reading and. writing skills of a large . fp _.

proportion of welfare sila tah aie a

The vice tae case concerned the right

of. welfare recipients. to a hearing prior

to termination of their benefits. Its

companion case before this Court, Goldberg

‘ve. Kelly, 397 U.S. 25h (1970), held that

a procedure which allqws welfare recipi-

ents to submit only written (but not oral)

objections to. termination could not provide

an adequate hearing. In so holding,—ttfs

Court commented:

"Writtén submissions are

an unrealistic option for _.

most recipients who lack 1 ,.-% ne

the education attainment a

necessary to write effect- se

,ively and who cannot obtain —_ fi

professional assistance.” a

; 7 ;

The iasi@eetinke! of thi Rate ae for the

present case are obvio es

In the absence. of counsel, a “person who.

. is unclear as to what a confession is -

_ would naturally tend to make inquiries -

of the collection agency's employees-- —

as, for instance, did amicus Nunez. But

“such employees are themselves laymen who

‘May not’ understand what a confession is e

--~and who, in any case, owe first. loyalties

to their employers. Any advice they give i

will predictably tend to be either parti-

san or misleading, or both. Indeed, ‘all: ”

that amicus Babcock.-was told was that

“this is for our records;" while the Court,

below found that “the only explariation —

given to signers. of judgment notes was gee

that they were signing ‘a judgment note. baler

314 F.Supp. at 1097-1098. It is not. '~

strange, therefore, that neither of the ‘

amici knew what they were doing when they

‘signed the confession of judgment.

“ These’ circumstances seem to cry. out |

; for the application of thé rule that courts

“indulge every reasonable presumption against *

waiver of constitutional rights! Presuming

that a layman signed ‘a confession out of

- ‘ignorance is more than just a "reasonable"

‘alternative to presuming that he did so

- knowingly. This is particularly true in

non-cognovit cases, those wherein the con-

fession of judgment is entered _intto after

performance of a unilateral’ contract has :

already been rendered. As the lower courts

- have recognized, one factor to be ‘consid-

sac in. Nes scion wnetner a ato. knowingly

| &w

| 4actna Insurance Co; v. Kennedy,

301 U.S. 389%, 393 (1937), Johnson v.

Zerbsty 304. U.S. 458, ph 193

0”

”

_ and understandingly waived his’ right is‘

‘what Ke ‘might have expected té gain and

what he wight have éxpegted to lose by such |

waiver. Common sense tells us that: the

fact that a man gains nothing and risks |

much by. waiving his. rights--in other words,.

., that-it ‘is directly against his self-inter-

o's @Bt--is the strongest jpossible evidence. —

that he did not understand what he was

. doing when ‘he waived then.. ei ace Boe od Pre.

% : : 2 id °

. ,. ° What had amici Babcock and Nunez

- (not to mention the 130 odd other persons .

}

a |

whoSe confessions of judgment. H.P. Sears

and Co. has filed in:a ten month period) Ps

to gain by executing them? Certainly: not ,’_

better terms of consumer credit, since. . —

nége of these confessions was executed

as part of a consumer credit tranSaction.

',By the same token, the execution of.-con- —

.fessions of judgment by these persons was —

. et : | ;

2 ee 35Hipgins ¥ United States, 207 ¥.2a.

J 819 (D.C. Cir.1953) (defendant could not -%°

=" have understood ‘that he could refuse :to i

have his room searched since “no Sane man’.

- who’ denied his guilt woul@ actually ‘be _ .

. willing that policemen search his room for

contraband which is certaim to: be discov-

. ered."j,-Cipres v. United States, 343 F.2a

95 (9 Cir.1965). (Since defendant's as-._

_' sertions of. innocense were "certain to be

exposed as false tte moment the bags were

opened” she could not have believed that '.

‘"— she could refyse a request to search them.)

es.

. e $ ay ee : 33

36 eng! Y ' . ae .

. ; . “te

: " not-a prerequisite to the availability of

—— credit to them. Nor was*it con- |

+ Sideration for Sears‘ forbearance“to file.

a lawsuit since Sears has made no conmmit-

ment (whether binding or not). as to this.36

, There is but one ‘explanation for amici and

’. those similarly situated -signing confes-

__ Sions under these circumstances: ‘Théy” ~~.

_. didn't know’what they were doing. It” ° |

follows that: their purported waivers of ° .

‘ ‘their opportunity to appear was no waiver

: F ‘ ; e

at all.

E. THE CONFESSION-OF JUDGMENT

' PROCEDURE IS INVALID IN THAT IT

- DOES NOT PROVIDE FOR THE INDIVI-

DUALIZED SCRUTINY .WHICH IS PRE-

REQUISITE TO THE FINDING OF A. .

> ~ WAIVER OF eTHE OPPORTUNITY TO

“The court below determined that most,

if not all, of the plaintiffs and those .

: 36Moreover, such forbearance would

be of no value to the debtor at all be-

cause the confession of Judgment makes

the filing of a lawsuit unnecessary: the

‘filing of a confession operates as a self-.

atvertes judgment, independent, and with- |.

out necessity, of the filing ofa lawsuit.

Cf. Federal Deposit Insurance Corp. v. Stein-

man, 53 F.Supp. 644, holding that confes- |

. Sions are not “suits of a civil nature”

as defined in the F.R.Civ.P.: “The right

*to enter judgment ‘upon a confession con- .

tained in an instrument is a common lat ON

* right. which may be exercised without the

necessity of suit, i.e., “service of pro-

cess, pleading and judicial determination."

+ >

they were found to represent did not under-

Stand what a cognovit was. On the basis.

of that finding it struck down Pennsylvania's

confession of Judgment laws as applied, but

refused to enjoin their application to 7

. Classes of persons which it deemed to be

‘differently situated. Without delving in-’

to the validity of that factual conclusion,

it is respectfully suggegted that the |

: learned judges misconceived:-the issue be-

fore them. That iSsue wasynot whether one. -

or another plaintiff or person represente@.

thereby had ‘or had not understood what. he

‘was signing,’ Rather,,at issue is whether

Pennsylvania has adopted a constitutionally,

adequate procedure for determining whether

there has been a waiver of the right to >

‘due ‘process, of jlaw. It is submitted that,

had thé court below understood.its mission

in this light, it could only have resolved

that question in the negative. For un- °

questionably the confession of judgment

procedure does not provide for the kind

of individualized scrutiny of waiver which -

-is mandated by the decisions of this Court.

That is true of confession ~*~ of judgment as

-it is practiced in Pennsylvania, in Calif-

Ornia or anywhere else, for the whole pur- .

pose of confession of judgment is to avoid )

any and all judicial scrutiny. That pur- - |

pose, however, runs squarely afoul of-the \

“ constitutional principles governing. waiver

of constitutional. rights. This Court held

as long ago. as Johnson v. Zerbst,. supra, |

that every purported waiver of the oppor- |

tunity to appear must be individually scru-

. tinized to determine its constitutional

sufficiency: ; ="

~ “The determination of whether

. there has been an intelligent |

waiver of right to:counsel must os

@iepend, in each case, upon the

particular facts and circum-

. Stances Surrounding that case,

including the background, ex-

. perience, and conduct of the -

accused." (304 U.s. at 464)

lated

which

ing a

plea:

_, that he ig informe

Ten years later, this Court articu- ._ —

in the following language cies . “e

a judge must perform befote acome. 8

: -

"We have said: . 'The. consti-

tutional right of ‘an accused _

to be represented by counsel:

invokes, of itself, the pro- -

‘tection of atrial court; in . a

which the accused--whose life

or liberty is at stake--is

without counsel. — This .pro-:

- serious and weighty fespon-

sibility upon. the trial judge - — 5 Sigs

of determining whether there _ ae

is an intelligent and compe- |

tent waiver by the accused...

To discharge this duty pro-

perly in light of the strong

presumption against waiver of . = _

the constitutional righf to :

counsel, a judge must investi-.

gate as~long and as thoroughly

as the circumstances of the case

-before him demand. fact .

that pa pocused: may tell him

of his

- Fight to counsel and desires -

aed

to waive S right does. not -

automatically end the iuaze 3

<gesponsibili y-.To be valid .

ete

*@e 4 .

. :

. .

. - :

. ‘ 2

- <e

a ON A Aenea se ge :

. ta ce =

. .

. . bd ,

. .

: ‘ ' . .

. :

f ‘

* Z

’

. ® °

> a

. .

, }

‘ * .

m a

. -

eae

‘

. Be . .

. *

— By ‘Such waiver must be’ made with

| an apprehension of the nature :

of the charges, the Statutory |

offenses included within. them, eae; &

ee Se the range of ‘allowable punish-_ ; . :

te + Ments thereunder, possible-de-.

| _ fenses to the charges and tf

+ Circumstances#tin mitigation Sa

ereof, and all other facts.

essential toa broad: under-

Standing of the whole matter. —

A judge can make certain that

an accused's professed waiver |

of counsel is un rstandingly j§ -—

and wisely made only from a aay

penetratin , Bae Somprehensive gh eS

' €Xamination of all S Slee

Stances under which such a ,

Plea is tendered.* tt

This requirement of individualized |

examination is far more necessary to deter- .

mine volition and understanding in the case

,Of a-confesston of judgment than in a

waiver of counsel, or even a guilty plea, 38

31 von Moltke v.Gi1zes, 333 “are ere

123-T2k (19 emphasis added; footnotes - [f-

omitted.)

Moltke are criminal cases, it’ is neverthe- —

less true that the consequences of a waiver

of due process rights in a Civil case may

be every bit as severe or even more so. q

Moreover, the standards for waiver of con-

Stitutional rights set out in Johnson have

been uniformly. applied to all waivers,

‘whether civil or criminal in nature. See-

.n.l2, Supra.

MS ee

Such waivers are made orally in open’ cg CK.

2) in the, presence of a disinterested j )

"under circumstances which make immediate

_ virtually impossible. Without any exami-

nation whatever, the judge hearing them

would have at least some idea of the —

defendant's education, whether he speaks .

English, his innate mental faculties and

his sobriety.39 As has been previously —

suggested, a confession of judgment is so

_ inherently subject to abuse as to make

imperatively necessary ‘the kind of de-.

‘tailed examination required by Von Moltke,

Johnson, and SeNOeEs- supra. Since the

ry vurpose confession of judgment is.

tithetical to this. Court's requirement |

t constitutional waivers be individually

scrutinized, confession is necessarily !

et ae with due process of law.

: on . ; * j- ie 8 . ° “

. 39e¢, Sanders ae United States,

373 U.S. ied ae - ; : *e eae

ANG.”

A smi 5

. For the toivegoind reasons, the a

salighent: of the District Court should be

|. reversed.”

ones Dated: June 23 1971. . | ‘

| | ‘Respectfully: submitted,

DON B.. KATES, JR. JAMES H. KOVACS: °

_° > MARTIN R. GLICK

_. .€aldfornia Rural

‘ Legal Assistance

1212 ket St.

San Francisco, Ca.

- WILLIAM D. SCHUETZ ,

_BAVID' L. FREY, JR.

Greater Bakersfield

Legal Assistance -

103 Sumner St.

; : > Bakersfield, Ca.

a ‘SIMON 'N. ROSENTHAL :

¢ - Legal Aid Sociéty —

of San Mateo County

2221 Broadway .

Redwood City, Ca. pe

CAROL RUTH SILVER

ALAN K “i

Berkeley’ jeighbor-

. hood Leg ices

2229 ‘Fourth Street

pgs rae Ca.

Legal Aid Sociéty

+ gf Marin County = =

612 D Street |

San Rafael, Ca.

SIDNEY M. WOLINSKY ae

. San Francisco Neigh-

_borhood Legal Assist-

ance Foundation .

1095 Market St. :

San Francisco, Ca.

EARL ra DUNN : : f

DALE HH. PARHAM nd

Tulare County Lega

Services Association

Tulare,. Ca. . :

JOHN: A.: - CHILDERS -

SCHWARTZ ‘2

Legal Service Center

of Ventura ‘County .

631 East Cooper Rd.

Oxnard, Ca. ‘ ey

_ ‘Byt DON B. RATES, oR.

| APPIDAVET

TATA CALIFORNIA 2 ak

or SANTA CLARA) ae

Ze Frederick B. Gillette, being ‘oar SWOrA, . depose ana

ye Tan presently and for the. past six years have ve gee

irector of the Santa Clara County Welfare Department. Ta that

pacity I have had occasion to observe and deal. with hundreds -

f welfare SS and: to supervise social workers who ‘deal

ath thousands. -

Many wahiare. recipicnts are completely illiterate and

y of the rest are “functionally illiterate.° By. functionally |

oan ol coal

A) ~~ .©o

illiterate I moan that while they can painstakingly read and write

ir names or fill out very simple forms, anything more is

letely beyond them. They do not read regularly for business:

pleasuro and neither wanes nor writing are a normal part of

ir everyday lives. They arc incapable either of expressing or

erstanding in the written word concepts and ideas which migit

»@ i iate eel clear to them if expressed orally. )

‘M4

ecipients aro either mentally retarded of are significantly below

verage intelligence. Even where these recipients do read and

ite on a level above functional Alliteracy, they are incapable

f understanding oF of easily comprehending and dealing with

stractions and concepts like rights, privileges, duties and

esponsibilities. ods? ‘

our “Notice of Action" form (whi ch is used in evory

nstance of a cut-off of welfare grant to infors the recipiont

esge SRR RSS s.

roof) is designed to Le as. simple as ee. in ontag and

Alling out ‘the form, we attenpt *inso far as poss e ‘to éGcseribe

: action taxon sinpaly end concisely, theless, it has been

ur Oxpe rience that wo fare recipients often do not. understand what:

Ehe notice al action form in, what ees action was taken with |

el-

aon &®& ww HS =

regard to thea, what.the reasons for the eatioss WEERe. or what

rights of abyos2 they have’ with regerd to the action taken. , ror

‘this roason “the State ‘Welfare Dapartadnt hearing officials have —

often accepted appeal requests which said. little or nothing more .

than (in effect): “my aid has been cut off and I want it back.“

But a recipiont who does not know this, and who does not know on

Z%Twhat basis action was taken against him or bow to oxpross his or

her disegreoment with that action, would be inclined . simply to

| forcgo his, appeal rights out of frustration and helplessness.

J Another consideration militating against oxercise of ‘the appeal

rights is that the very idea of appeal is antithetical to the

concep which many recipients entertain of the welfare system

and their relation t6 it. All too often, recipicnts are unable

to understand that tney are entitled to welfare under vederal

and State law. Analogizing welfare to private charity, they

‘eee that their benefils exist al -sufferance of the officieis

who distribute them and that they have no right to complain

against any action, however arbitrary. ~ *

Dated this Rth day of

ousea anid sworn: to beforo.me

this > death day of LORS a » 1971.

5 ~ ©

ORM. LBS: oes * O°. a alee.” “ater he: BFE .

*3 je +, tebe *t. a

s 7: + Free: ‘e . ?

a (cx ‘ cen -* . feat a Py

;$ 8

EQ A a bem at “A vanessa

O'R i'at. MO Me eT ee Te

= «,

-2- -

ice mow rm maneenerw ny

S - RICHARD HOSKING

. ATTONNSY AT LAV

4 pene Gnias bun ‘ore? ae Paypetr g “8 ‘= eae: Irate net

Sa r7. hang OOH |

; aes xe POEL aad ae

) Attorney for. Pleintifr eS eke ws

, — . 7 wetre aKez

i : a | bate

hos _IN THE MUNICIPAL COURT, BAKERSFIELD JUDICIAL DISTRICT

Hook | _ COUNTY OF KERN, STATE OF CAIIFORNIA

) ~~ * - ee Owe

|| HERBERT P. SEARS CO., INC. )

: F t .

@ corpors ion ea ‘ an

Plaintiff )

; - NO. :

i vs : ; : : ‘

| i ane CONFESSION OF JUDGMENT

. mao MOM ER ~ a ; |

. ' Defendents .

- OOMES NOW

and confess(es) and agree(s) thet judgment wey be entered ageinst seatae Pind:

in the smount ot te with interest thereon st the lege] rate fron.

date, which is the amount justly due to and duly assigned to HERBERT P. SEARS

CO., INC., by virtare of the account(s) thet fellow(s). I/we hereby renew and

reacknow! edre the fol lowing ‘indebtedness ahd waive the provisions of the

i] 3 ‘applicable atatute of Nimitations es of this date according to the California .

Code of Civil Procedure Seetions 360 and ‘360.5. ~~

- Said seceats are due in the amount and for ‘the nature of

and consideration for the debt set ; next tien the neme(s) of the sseienoz(s)

below: $

SEEN TS Fes IMPS.

te sy? é

y a

e .

‘

. .

. by s

. .

@ :

° .

. .

; > - ae ; -- . : . ; : “is : 5 : t ; ; SB 3

ASSIGWR = =. tit . DUE FOR: s—i‘<‘iéi‘éTCtété‘(;«;:SC RECTAL

‘Yern Gonesed ivspitel sex"iecy renderec(? scets) $ CE7.00 —

Slishie-Vitisa 7. gervieceréneored— | ate.

: ZA BPEL GRREIR EE SOE Cee edi

“@ibonualue £ Scedceld gerviccs yencered = ss RUB

x Ne

0 oOo RP GO &

7 ad e

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. oor a.

8 .

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= .

7 .

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xe . . :

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& Ct: 0 &.

F ; : ov 2 vid if eer ss re P

fn rs 5 , , : Sx: ‘ ae She.

. . .- : cet ial i

COTY OF Reo MeeF ee ey Si

iid oe : oe Ses OE we ia — a)

entitled “action; tint atetant(e) ssiihos read the foregoing 5 contessice of 3

a mot pee Mp i

BF statute of limitations end. know(s) the contents thereof, thet the que. is true

‘of his/her/their. own knowledge » except as to the matters which ae therein ao

stated on information or belief, and se to those mettere, be/ade/thay. believe ;

it to be. true. We bareby oeeeny receipt of a copy of this document.

‘ale

in pel : mesa SPRY ae

’ oe” .

. : 6 ‘ome

Sat ke % « NS

s* e i ; * : * | ° ; ‘ f oo: 2 <i a

ie v ° .

“CRE i - Pees! pe ae he i ‘ 4 M : .

cfm FP” "-OOUMEY OF XESS, STATS OP CALIFOCITA :

: ‘ees ‘ °~ . * . . ae

lee Es ar < Be ma Eng : e ag! 5 ft ps8 ets 4 *

Eds xk ie > Pes ple ~, * ~ . pot : ~-& ‘ee A

Sa) RO a Rig Mt Bee” Sec + O'a:& : . °

“4 - . ae. 7 fe pet ee * 4° aps ~ ‘72 . :

i Paeaeys.. oe a % *, ig > . ‘ ‘ LESS oe me :

HERBERT Py SEARS.CO;, ‘T0. dee ge. ee,

of ft : ¥ . ** , N

: . .'® ie ”- . 6 ’ a . e AN . P.

i ve 4 pe

i> = ‘ . . . : f22 . ‘ ate i bs ‘ :

es | a... _SORHTA nanoocs

—

i ails Sp steer cb ha eoantlh son ame sachs sais

| sscimoxtadge the fétioutng incsbtetnece end waive. the proviatens of the

Bee BE BG oe 3 ow ee ew

ice Ute ' ae 34 - ae hla: re aa

BREBE

ASSIGNOR

Dr. Irvin T. Lathrop —

‘DUE FOR:

professions] ‘services rendered —

é e

° -

}

“ =

. 5

* <: ‘

—— th

“« . .

. \

\ ;

\ erg §

\ + fee

\ > ;

a”

* S

° Pi

. ;

—

BEREE EES HEE aa wes a ae ee

STATE OF CALIFORNIA a:

COUNTY oF KERN ae |

° SOPHIA BABCOCK

being sworn, a ‘that he/she/they is/are the Defendant(s) in the ‘above

entitled action; that sffient(s) has/heve read the foregoing ‘confession of

judgment, renewel and ¢scknowledgnent of indebtedness, ond wsiver of the. |

statute of linitetions and know(s) the contents thereof, thet the seme is true

of his/her/their own knowledge ’ except ss to the netters which sre therein

stated on information or belief, cud ec to those netters, ba/sbe/they believe

it to be true. We hereby a: — of 8 copy of thie pee IS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.