# Amicus Curiae Brief — Nellie Swarb v. William M. Lennox > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0332%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 405 U.S. 191 ## Text Cases (Cont' a. ) = . 7 id 7s a ee * \ - a] 2 y ay \ "39,40 Te . J \ x : re \ J e : \ 4 . ° ; \ . . . | | ‘ ° A ° \ | | ; | | . A a ; | | . | * : z | : | | \ Od | ° . - “ . | | : -! . . e \ . - p \ . . ‘ ° . . o o- | | ° | . dl . . 7. ; | : ee age : ° \ : - | | | | ° | : . ff 7 . \ ; | | . e . ere \ . 7 ‘ . ’ . ; | ; . 4 ° » . . | e e . | | . Pp ° - | | | | - e t \ geen ers a eR PRE . . : . . - “ a .e . e > . « : . . ® . ° . \ . ° . . ; og. . . ° : . . - . A . : « . - a ° ‘ . ° a ° . ra . “? ’ . . o- . . . . Pa : . . : “ i. . i) . - . > ’ . ° . = e. ° °. 2 ° . 7 ~ 7 . s e ms / d . « i : . ? . ”~ . ° . ’ » “ . ° . - . ~ . ; we . e . ‘ . . - . : . . - e . . : “ e ' ° ° ° ‘ Pig TEEPE TREN Se REE A TRY: VLAN CEN a , e J pinincnant Seria pate . . - . oe ° ~y . 3 « ? . . ” . ° ‘ . 8 \ . ° ? “ . é Py . . a e . . , . ° ° eh a i el Wh am 6 “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 a. ° aie . 7) bl : . - . — . » ae * . 3 a: » * a . P . ‘s - ~? ° . . . - 7 « ‘ . : ; - . * — . . 2; 2. “4 . t - ae . S ~ . ; s ° ‘ . ; ° : x e. i . ° 7 ° . a , _ . . ae : > we ; ‘ e é 7 ” ! ° e . « . e € . ° . ° . . ‘° . . ‘ . e e : 2g . t ‘ . oJ . . * a e te a : mera emery . 3 ° . 3 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. — : a. vv 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) | e oo 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. » @ g “ « ‘complying with: some procedural formality ~ of” ‘the SOL leet Lee agency. a T . { j 2 . . . ‘ ‘ ‘ s “« v . . ' . e * i 9 - . ‘« ) “ ‘\ “2 . ¢ /« / . -_ > ° . Awe ve e - © s on fi : , Ces . oy TEs ia tae i oF coumssron ot supa ae : 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. a i * oy : a a . ° Fs rd q 2, e. . ® . ° . e . . ‘ . . 2 . e . 10 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 e il 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.) — 2 12 . «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 a 8 - 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 s 4 . . - ‘ a ; y . . i . 4 ¥ Tt le - 4 ¢ s : ; . ’ , . e ‘ . \ : \ : bee eo w : ‘ : ‘ om r ’ . . , . Lf " ° P : - ° . x \ ‘ . . - . : . : . , > “ss : —_— . . ’ $ - : ay 3 . e g : Nn : . ‘ . \ . ° . ~ : . ry . S . - - \ - e° : J . , : \ ‘ \ . " a . 4 , \ “ . id \: . * \ : rs \ 7%, . e . : ‘ : . f a r ‘ “ : arts ‘ a - is 4 4 a rea, ee 18 | | : ; 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. a] * es. ’ va a |: aes _ fe 19 . 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 es « . 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. : 20 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. 2 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 ay _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. 22 . 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 os 15see. discussion at subsectidils B and c of. this Part difficult even for:an attorney to under- stand. It.involves knowledge of; 4nd a 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 " : Ne ‘ _- 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 a 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 ' 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. ° ° « 32 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. | The addition of a confession of judgment © . ‘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 Ye - 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>, wi 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 $ ~ 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." ° 2 = + > 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 ee a . . . , } : ‘ * . : m a % . - eae ‘ . Be . . : . * ~ 39 — 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 e 31 von Moltke v.Gi1zes, 333 “are ere 123-T2k (19 emphasis added; footnotes - [f- omitted.) 38Recognizing, that Johnson and Von © 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 _ Physical or mental ‘coercion or overbearing © _ 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.” a ones Dated: June 23 1971. . | ‘ | | ‘Respectfully: submitted, DON B.. KATES, JR. JAMES H. KOVACS: ° LUCY K. McCABE ‘CECILIA D. LANNON © _° > 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. eg 4 | 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. - oo nu ow ft wn © 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. ) ae Ww ‘M4 18 _ Some small number of, but by | m© moans all, welfare — 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 is 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 & Se oe tee a-eren teamoe © Le O'R i'at. MO Me eT ee Te = «, -2- - a Q 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: $ te ' , we SEEN TS Fes IMPS. te sy? é y a e . ‘ ° ‘ P F . . . . > - . by s e . - 5 . . . . . @ : e ° . ° . . . 4 2 > « ; > - ae ; -- . : . ; : “is : 5 : t ; ; SB 3 ASSIGWR = =. tit . DUE FOR: s—i‘ 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 é e ° - } “ = \ . 5 * ; ee + * & . a” e _ * S ° Pi . ; — ! ? we 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 ° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0332%3A03. Public record. Not legal advice.