Petition for Writ of Certiorari — Brasier v. Jeary

820°

- —

i sSeuibat te ar

October Term, 1958.

v,

(+ GEORGE H. BRASIER, Petitioner, |

. ; fe vs." ,

CLARK JEARY, PAT ASH, DAVID L. ERICKSON,

HARRY BREHM, GEORGE A. MEHSER, CONRAD.

SCHNEIDER, JACK SCHLEGEL, WELFARE SO-

CIETY, INC. AMERICA FORWARD ASSOCIA. _

TION, INC.. AND OTHERS UNKNOWN.

> rn)

PETITION FOR A WRIT OF CERTIORARI TQ THE

UNITED STATES COURT OF APPEALS FOR THE

~~ EIGHTH CIRCUIT. °

>

°c —

‘4f GEORGE H. BRASIER] Pro Se,

ee $14. West 12th Street,

Tulsa 19, Oklahota,

TA TTSYWARD,

i, ‘y S, Nebraska,

‘Cnunsel, , fC

INDEX.

rags

Opinion Below... . PA Deere eo oy ter etacenes |

Jurisdiction ... ..cccccccccccscccccsves va Cree 2

“Questions Pre ean: saeeene Mehabawaneeseanns 2

Rule, Statute and Constitublenal Provisions ......... 2

Statement . . 2 wcccccccceccees beeen ge Teeeteeeees 2

Complaint . . we. eee eee eeee Mines susp eeensauasses "3

Exhibit No. 11° Contracts ........... Sree a

CNN 6 oo) a cicanauens See ae ase Raa wk . §

Order and Nemorandisn Re ee Ret eee eee ae) ae

| cs a naatnccada ries ieeasdnsqgestxaness ive a 9-10.

Reasons-for Granting the Writ) .....5: ETE LYES LL 10

NN <5. s onxcsasines (Keke éeues Gr a ccccces 12

Appendix Bs < ctaxedacuaetdes rrr ere res anes oe 13

Abpendix em rrr re ss Gaiken es eee ore |

Appendix C , cee s ich skkeawaes Lio

‘Appendix D .... 2... eeeweces it udev eeaeeseeeahe 27

po errr ee ree OC euenaw a can s. 8

TABLE OF CASES.

_ Bolling v. ‘i BATU, Bo viscwcveccesacccas 11, 12

Brasier v. Jeary, 154 F. Supp. 631 ........6+00005: 9

Connally v. General Const. Co., 269 U. S. 380 ...... 12

Hood & Sons v. United States, 307 U. Beer 12

Johnson v. Zerbst, B04 UT. S. 45B uc ccc cece ec eens 10

Yu Cong Eng v. Tinday, 271 U. S. 500 ..... weaeees 19

2.8 og | eRe ere Pe NeP 2

BUS. C. eee | Pee eee or Te

IN THE SUPREME ‘COURT ‘OF THE UNITED STATES,

October Term, 1958.

F

.

No. Sit abiaaaaimnniaie

' GEORGE H. BRASIER, Petitioner,

CLARK JEARY, PAT. ASH, DAVID L. ERICKSON, °

HARRY BREHM, GEORGE A. MEHSEB, CONRAD

. » $CHNEIDER, JACK SCHLEGEL, WELFARE SO-

'. CIETY,.INC.. AMERICA FORWARD ASSOCIA-

TION, INC.. AND OTHERS UNKNOWN. __

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT.

The herein’petitioner, George H. Brasier, prays that

a writ of certiorari issue to review the final judgment of

the United States/Court of Appeals for the Eighth Cireuit

entered in this controversy on n July 21, 1998, .

\ Opinion Below. -

The opinion of the District Court dated Se ‘ptember 13,

Mot,.(App. A) is reported at 154,F. Supp. 631, The opin-

ion of the Court of — (App. B)- is nen at-...

F. ad

a

a ‘ om : %

Jurisdiction.

The order of the Court of Appeals respe eting re heag.

ing and stay of mandate was entered on July 21, 1Y%s

(App. C), The iceaebning saad Court is invoked unler

28 U. S. G 1254.

Questions Presented.

1, Whether a nonresident party to 4 civil suit may:

appear pro se in the conduct and managemant of his own

‘comtroversy with. aid of co- -counsel, where, at his own

election, has associated resident attorney; by written con-

tingent fee contract, to act as resident attorney. for tle

purposes which resident attorneys are normally associated

@* and consistent with Rule 9 of the District Court.”

?

2. Whether 28 U.S. C. A., Section 1654 is a consti

tutional delegation of legislative power under Article |,

Section 1, and compatable with the essential. elements.an!

concepts of. equal protection of the law and.the fill dw

process of the law secured by the. Fifth Amendment, of tle

Federal Constitution,

Rule, Statute and Constitutional Provisions.

- Rule, statute and constitutional provisions involved at

¥ ;

set forth in Appendix D.

Statement. |

This is an appeal from the order ov eindieen oral me

tion presented August, 7, 1957, denying petitioger who ap

peared before the Court pro se, the right to person alls

=

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:

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Pda Sa : 4 °

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conduet, manage and control the processes af the instant

action, where resident: had been associated as co-counsel

_by way of contract, as hereinafterssef forth (R, 1:7). °

~

> Complaint. of, “9

_Petitione gated his complaint designated “@omplaint

(at Law and in, Kquity ) t Ping that he was a citizen ot

the State ot idaborm, and the owner of certain real prop-

erty. situated in the City-of Lincoln, I ancaster County, Ne-

.

_ braska, at all times complained of, and alleging under two

se; arate causes of Aetion” that nine deferidants, consisting

in the aggregate of officers. of theCite of Lincoln, Nebras-

ka, s tup Society Gr rganizatignss ircornhati officers, mem-

bers and, or agent thereof, anothers ‘unknown had caused

the deprivation of his Civil Riabts*and other intervening.

rights in connection “with his property, particularly from

carrying out a legitimate real estate development and prot-

itmaking venture, by way of conspiracy, fraud and other

illegal: means to the damage of petitioner, and that said

property is in a state of seizure. Petitioner alleged that

some 220 separate and distinct illegal acts et known to.

be committed or ‘caused to be committed against the person

and property of petitioner by defendants. Petitioner

praved for damages on his first canse of action and equi-

tablé relief on his second cause of action, The complaint

. e : ve “ pe tee

is sizued by. petitioner, pro se, and by resident attortiey,

fled May 16, 1957, pursuant to a contract and agreement

entered inta May 15; 1947, filed 4s. Exhibit No. 11 on Ang=

ust 15, 1957, as follows:

2)

= .

2 a . ’ _

“CONTR: TS

“That upon this loth daypot May, 19% 7, the tolle W-

ing individuals agree, that George H. Brasier, party

of the first part, of Tulsa, Oklahoma, and ‘J. A. Hay-

ward, party of the second part, Lincoln, a as

- hereinafter follows :

“1... W. hereas party of the first part’ has an ac-

tion, pro se, in the United States District Court, known

as Civil Action No. 77 L for damages against certain

parties defendant therein, and wishes to engage the .

services of the party of the second part to act in be.

‘half of the first part in the above mentioned action as

the resident attorney therein,

“3. Party’ of the first part agrees that’ party of

the second part shall receive for his services to first

party as set. forth. in paragraph one, a contingent fe

of the gross amount of ten per-cent, regardless of the

amount awarded. In the event no damages are award:

ed to the first. party, then second party, shall ‘recéive .

_ no fee. First party pays. costs.

“3, Party of the second part agrees to accept the

offer of first part}; upon the terms and condition set

forth by first party and entergs.upon his employment,

and _ageesto undertake and ae ‘said action to any

‘tourt necessary to accomplish satisfaction of the eet

ef the first part. ‘

“*4. It is further agreed that when nie of the

first part’ is satisfied with any judgment awarded,

second party shall have a lien upon said judgment in

the amount of ten per-cent for his serv ices in the abore.

matter. ;

_/8/ George H. Brasier

+ First party

/s/ Cosimina Johnson — /s/ J. A. Hatward

Witness: to signature | Second, party.”

. @ -_— §—

Consequently responsive pleadings and motions were

duly filed in behalf of the several defendants by their at-

“‘torneys, consisting of .four lawyers of law firms, and sub-

~ sequently a hearing was set on-August 7, 1957 relative to

motions before the Court. Prior.to said-hearings, petitioner

pro se, through resident attorney, altered the Court. that:

he expected to proceed pro se at the hearing and in all mat- |

ters connected with the controversy, with assistance of cos 2

counsel, as a matter of right and because of the complexity :

involved. The Court announced its ruling on the informal

matter, holding that inasmuch as petitioner had engaged —

counsel, the Court deemed it proper that counsel proceed

before the Court in all matters before it. Subsequently peti-

tioner, pro. se} through. resident attorney moved for a hear-

ing in “open court in order that a reeord could be made

leading td a final order. The hearing appears as follows:

ae | HEARING.

The. Court: L/think, gentlemen, at the cate I

should explain to you why ,we-are meeting here this

morning, as distinguished from hearing these matters

in chambers, because, generally speaking, it is going

to be my plan to -hear motions in chambers,

“T was alerted Monday by -Mr. Hayward, ana I

‘commend hint for déing it, that the plaintiff wanted

either argue or assist in the argument of the motions

in person. “I think probably that my ruling will be

no different than-it would have been had I ruled on it

without having been advised of it ahead of time. Yeé

terloy. T told Mr. Wavwartd that T did propose te re-

fuse to the plaintiff the right to argue his motions it

court at this time, . Me. Hayward stated, and/he was .

7%

t e

—6—

- entifely right te do so, that dea wise to make a a@ rees

ord on the matter, hence it appeared that it might b&

best that he: appear here in open court in order that

‘a record could be made.

‘Asa result, Mr. Hayward, in inaking your recor

it might be well to make it-in,such a way, as you want;

that perhaps you make a formal oral miot fon to porn

the plaintiff to appear atid tither argue or join in the

arguing of the motions, as you desire; or, if you have

some formal motion that you want to make at_this tin.

it should now be made.. @ -

“ae. Hayward: One behalf of the plaintiff we

‘move the court for permission for the plaintiff, inas-

much as. he has filed his petition pro se here in th:

. case, and wishes to assist counsel. in conférence on

various questions and matters involved inthis case, and

. to assist counsel in ar: rmment, to aid eounsel | in making g

a statement to.the court of such matters either over-

looked by counsel or that he considers ‘proper in con

nection with counsel's statements during the progres

of the trial involved in this case.

“The Court: The motion will be denied, and for.

reasons that I think T should give at this time to aid

those who will be practicing, I would very briefly -

you why T am denyingat3@aAll of vou are familiar wi!

the fact that I am just ng in,here, and the as

that I am sure the bar are going to be just as miuch in-

terested, and the parties are, in what a new judge i:

going to do and what his general policies will he with

reference to matters of this kind.

** At the outset, again T would say that I. edmment

Mr. Hayward for. calling the matter to m¥ attention

‘on Monday. He is correct that the original action was

he filed both pro se and by counsel. The original pleat:

ings are so signed,. and some of ‘the subsequent, phe pad:

- >»

4

inys are so shia. Based largely on my experience

as a lawyer, it seems @o me that the orderly process of

trials requires that*When a party has competent counsel.

that counsel should represe ut hin. Lt seemis to me that

in the trial that if we would get into a position where

othe party Was anaking ob jections to evidence or Was

*®

oO

arguing the Court’s rulings, or was even attempting to

argue a case to a jury, we then would get away from in

“orderly process, and that enters into my decision. Then

too, it has Jong been Pie rule of this court in pre-trial

conferences that parties are vot to be present, I da

-not intend to Change ‘that rule, which was adopted

both hy Judge Rosson, the Chiet Judge, and by Judge

Devenant when he Was chief judge of this district. I

think there is sme analogy to the situation here, be-

cause in pretrial conferences very fmportant matters .

take place so far as they atfect the rightsol the par-

‘ties, and yet the court has not been permitting them

to be present. a

“Then there is another reason for’ nly ruling that

PF should call to your attention, Tithe 28 Section 1654,

G S. Code. Annotated: In all courts of the United

States -ilie parties niay plead and conduct their own

“of the conjunetive ‘or’ and call to your attention that —

cases personally or by counseleas by the rides of such

courts respectively. are ‘permitted to manage and con-

duet causes therein.’ I call to your attention the use

the word ‘and’ is not’ used. _ It- seems to’ me that the

*- courts must have something #nouiind in using the cor’

and that this was the alternative, and that here we

have not an absolute elec tion but somewhat of an eiee-

tion.. The plaintiff eould proceed pro se in’this ease

Without counsel if be wanted to hut, having counsel,

iteseems to Me that it is entixely, proper that I should

take the position that I am“taking here, that ‘counsel

“are the one to jfroceed in the ease.

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‘Now | do not fing cases specifically in point u®

it; in fact, 1 have iis reached the couciuss

that it is largely in the discretion of the court as:

which way to we in the matter of this kind, bi si:

Vv. UA S., 204 PL. 2d 806, the defendant appeared

se, but he wanted’an attorney appointed with) woo.

he could consult—not to handle the case—bit

wanted a lawyer appointed with whom he could oo

sult. It was held that the court. did not abyse ys" dis

cretion in refusing the appointment of counse! ul.

those circumstances, :. sf

‘“‘And then in LU, S. v. Fuster, the tamuiwus cov

tried before Judge Medina of New York, ¥ Feder.

Rules Becisions 367; Judge Medina in passing api .«

sunilar—not exactly similar question but one ‘tat

thought was somewhat lelpful—says in the tedets.

courts ‘where a defendant hasgno right to be hea:

both in person 4nd by ‘attorney,’—then be goes on |

comment on another matter. So that I think be dra®-

there a definit distinction and takes a definite po-

tion that one does not have a right to appear bet).

person and by an attorney. In that ‘case, interest.

enough—it.was the Communist, case—one of the

fendants at. the end of thé trial, who was an attor

admitted to practice both in the federal courts and,

state courts in Georgia, wanted to plead his own co~

to the jury, and his attorney wanted to withdraw‘

that purpose, and the jndge overrnled; he, said 1°

“even the withdrawal or permission for ea ns" *

withdraw was within the disengtion of the court 9’

“he didn’t have to grant it .and he did not yeormit-”

‘man to arene his ease in nerson at the ednele~ior

“While T sav to von that none of these cose

just specific eases in point, T do think that in -to"

i. ree 3

icy aa “ .

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_

— w-

vut bere I should tell you. some (—) the reasons for

wy conclusion, sand, that, generally speaking, 1 think

we will tollow ulong With the idea that when a party

Luswimployed colpetent counsel that counsel will run

the lawsuit both in arguing motions, in the examina-

tion of witnesses, in the making of objections to the -

testimony, and the argument of the case to the jury.

7 “T therefore return to the statement that I made

inthe bexinning, that the motion will be denied and

counsel alone will "proceed with the argument of the

motions.”’ . :

Order and Memorandum.

The order of the court appealed from, dated August

7, 1957, is as follows : 4-

“Upon oral motion of J. A. Howatd that plain-

tiff be allowed to participate as counsel in this ease,

,it,is ordered by the court, that said motion be and.

W@Fchy is denied.”

Petitioner duly filed a motion for rehearing requesting

+ thirty davs to file brief, which 19 days was granted hr the

court, and same having heen filed and considered hy the

+ cmrt, the motion wax denied for the reasons set forth in

the court's memorandum of September 19, 197, iil

as Rrasier y. dears, 154 F. Sup. 631, and to which refer-

ence js hereby made, |

_ Notice.

Petitioner tendred his notice of appeal to the Clerk

fthe Court via Vhited States Air Mail and same was re-

me

are -10— .

ceived by said clerk on the 17th day of October, 1957. Tu

notice of appeal was filed on the 19th day of Uctober, ly.

and reads as follows: _

***Comés now the herein plaintitl, George tL. bras

ier, and gives notice of appeal to the United star

Court of Appeals for the Bigvhth Cireuit, for revie

from thé final judgmenyof the court entered in tus

action: on September: YW, 1957, standing upon is om

inal interlocutory rufing."’

a

Reasons for Granting the Writ.

. 7

1, The decision of the court below is in. direct «

press conflict with the facts presented in the imstaut co’

troversy, and has sanctioned such a departure by the li

trict Court, as to call for an exercise of this Court's pow.

er of supervision, and has deeided an ‘important question’

of federal law which has not. been, but should be, settled

‘this Court. That said decision ignores the applicabiy &

cisions of this Court, and is predicated in the main uy

the erroneous assumption that petitioner waived? his '

.

Tes

damenta right to appear pro se by the association ©

dent attorney (App, A.). .

id . or

The record shows that petitioner a nonresident, sigh

the’ Complaint pro se and Mr, Hayward signed same as”

sident attorney pursuant to a contingent fee contract «

leging deprivation of his Civil Rights (R. 1-3). In Je

son .. Zerbst, 304 U.S. 458, this Court laid down tw rm

_of law concerning the loss of fundamental rights essentic

of due process: ee , ty

Ld

“[C]jourts indulge every reasonable preswuption

ugupust walver Of fundamental cons “tutional rights

aud Lhat We do not presulie acquiescence’ in Lue loss of

~ fundamental rights. iA] waiver is ordinarily uu

jnteutional became or abandotwent of a known

right or privilege. * * * And it would be fitting and

appropriate for that deterinination Lo uppear upon the —

record.)

* .

Petitioner’ contention | is that by. engaging a resident

attorney ‘did: not constitute u waiver, but rather, petition.

er sought to ex ereise his right undér the coneept of the

“equal protection of laws?" by electing the same privilege

sas nonresident attorneys pursuant to Rule 9 of the Dis-

va)

trict Court (App. D) without discrimination. In Bolling

v, Sharp, 247 U.S. 497, this Coirt fused the concepts of

“equal protection of laws’? and ‘due process of law’’

‘The concepts of equal protection of laws, and

‘due process of law,’ though not always interchang-

ible, ure vot mutually exclusive. Discrimination may

x SO unjustifiable as to be vioative of due process.

*** Liberty under law is not confined to mere free-

dom from bodily restraint; it extends to the full range

eo conduet whieh the individual is free to pursue * © %,

The Constitution of the United States forbids, so far

as civil and political right are concerned, discrimina

tion by the general government, or by the states.

agaist any eitizen * * %"?

a

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: . ‘ : a

Under question two (2) petitioner contends fiat

SOS. GA Section 1654, is uneonstitutional beennse

sane, Indefinite and transgresses—tHhe—eonctitutional di

vision of power repugnant ‘to Article 1, Seetion 1, and. vio-

vhs

— diseriminated against because he chooses to- represen! 1,

—12—

lates the essential elements and concepts of equal prot

tion of law and the full due process of Jaw secured by t

Fitth Amendment’ to the ‘Federal Enea

——nally ve Gene ral C onstr Seo. » 269 UL, S. 835, and da ( .

Eng «. Trinday, 271 U.S. 500, this Court held an att

an indefinite statute violated due process of Jaw. 7

dissenting opinion of Roserrs, McReyNotossand B

Hoacd & Sons v. United States, O07 UL OS. OSS, the at

therein, establishes a rule of law that cannot be igor

Section 1654 as it now stands, as construed by the lowes

courts, denies the parties acting pro se the same privil eze

as attorney s. Must a non-reident party stand coerced 5

self, while attorneys may have as many associate~ ~ th

wish? Must the herein petitioner stand alone against f°

(4) law firms? Is that the logical conelusion of due pr

éss of law and the equal protection of the laws? Petit

thinks not. The concepts found in Bolling ve Sharps sus

‘should be reaffirmed, a.

Conclusion.

The conflict herein, should be re eateed hy this ¢o

The petition | for a writ of certiorari should be granted

| ~ Respectfully submitted,

‘GEORGE HH. BRASTER, de

; na the $14 West 12th’ Stree.

' : ‘Tulsa, 19,° Oklahoma ;

J. A. HAYWARD, ie

Lincoln &, Nebraska,

Of Counsel.

”

40 enYoice a vague statute was not due process and tia

—

Appendix A.

GEORGE HH BRASIER, Plaintiff,

v.

CLARK JEARY, et al, Defendants.

Civ. No. 77 L.

United States District Court D. Nebraska.

Sept. “19, 104,

Civil Action. Plaintitf moved for rehearing on a rul-

‘ng of the court denying him the right to personally argue

certain motions which had been set tor hearing. The Dis-

trict Court, Van Pelt, J.. held that where plaintitf em-

ploved counsel; he had no right to. be heard in person, but

was. required to rely upon iis chosen counsel, notwith-

"standing ‘the fact that his‘ Vinal Complaint was signed

by himself pro se, and by © ounsel as resident attorney

for plaintiff. .

— order in Aycordane. With’ Opinion.

1, Attottiey and Client 62. bs

Where plaintiff employed counsel, he had no right te

Ie heard in person, but was required to rely upon his

chosen counsel, notwithstanding the fact that his original

complaint was signed by himself pro se, and by his coun-

has resident attorney for plair tiff. 28 U.S.C. AL, See,

004, poe , i)

2. Attorney and Client — 62.

Distriet Court rule providing that all attorneys resid-

‘ng outside of the district shall associate with them in an

4 >

.

af

f

Appendix J .) _ Appendiz

action, a resident attorney who shall sign the first plea.

ing and continue in the case unless other resident coun.

be substituted, has no application to case filed pros. to s_

Dist. Ct. Rules Neb., Rule 9. >.

J. A. Hayward, Lincoln, Neb, for vlaiatifl

__C, Russell Mattson, Lincoln, Neb., for defendant Cla:.

Jeary. .

| Jack M. Pace, Lincoln, Neb, for defendants Hricks«:

and Ash. 8 |

‘William L.: Walker, Lineoln, Neb., for defendant:

Brehm,, and others. ‘ :

_ Elmer Seheel, Lincoln, Neb. for defendant America

Forward Ass’ n, Ine.

Vv an Pelt, District Judge. .

> This matter is now “befare the Vourt on the Motion

. for Rehearing filed by plaintiff in w hich he complains o'

_the ruling of this Court of August 7, 1957, denying lai

tiff, who appeared before the Court, the right to persona!

ly argue the motions which were that day set for hearing

The Court, having been alerted to plaintiff's reques!

by plaintiff's counsel prior to August 7th, had some oy:

portunity to brief the question and upon considerati:

thereof, after the request was formally - made, denies

plaintiff personally the right td argue the motions and ora’:

ly stated its reasons for the ruling, The matter then pro -

ceeded with plaintiff’ s counsel arguing the -motion whic

had been set for hearing. oe

—16— |

Appendiz | Appendta

It should be stated as a part of the'fac ‘tual background

that plaintiff’s original Complaint was printed and is ~

signed personally by plaintiff and is also signed by -his

attorney, J. A. Hayward, as follows; .

—*/s' George H. Brasier, oan

Pro Se, and,

/3/ JL A. Hayward,

cov attorney for plaintiff, '

138 North 12th Street, Rin, 223,

Linegln 8, Nebraska. ”

The printed brief filed ip plaintiff in support of his .

“Motion tor Rehearing, and signed pro se, does not per-

suade the Court that it was in. error in the ruling an-

nounced and the Motion for Rehearing will be. overruled.

It is the Court’s judgment, based largely on experi-

ence as advocate in the trial of cases, because this judge’s

service on the bench began August Ist, that the orderly ad-

ministration of the judicial processes requires that when |

@ party has counsel, counsel shall make all appearances,

Incuding the argument of motions, ‘and counsel only shall

make the objections to be made to the reception of evi-

a and: the arguments to the Court or jury. It is the

Court’s opinion that to permit clients to do any one or -

more of these things or to -permit parties to do so where

they have designated themselves as appearing pro se and

in addition have employed. an attorney, would, not only

disturh the orderly administration: of judic ‘lal processes,

but would also result in delays in judicial administration.

: —_— | .

ie 5 | Appendizs

‘The Court has been advised that plaintiff in’ This case

may propose fo use counsel. to advise him on matters o:

law and the reception of evidence and expects at the tra

to. request the “right to examine and cToss- eXWMie Wit:

nesses and plaintiff believes that he has the right, and nits *

request permission, to make arguments, either to the Cour

or to the jury, The Court, therefore, has gone beyond tly

matters immediately before it, in order to. ansWer pais:

tiff’s inquiry as to the full impact of the Court’ 3 oraliy

announced ruling.

— (1)> This Court believes that the use of the disjune-

tive ‘‘or’’ in Vitle 28, U.S. C. A,, See. 1654, is controling:

and that in thé Federal Courts a party has no right to le

heard both in person and by an attorney. ‘Specifically, in

' this case, the plaintiff, having counsel, the Court hoids tha

plaintiff has no right to be heard in person whenever «i-

her his whim or his considered judgment dictates and lhiav-

ing employed counsel must rely upon his. chasen couse.

The Court believes that the riling of Judge Medina i:

United States v. Foster, D. €., 9 F .R _D. 367, is instructive

and correct. See, also, Shelton v. United States, 5 Cir.

WP. 240. ee .

us (2) Plaintiff in his brief contends that he has ase

. ciated a resident attorney with him pursuant to’ Rule $ «

this Court. Rule 9 cannot be read to apply to cases filed

' pro se. It reads: > ae

“Admission to Try a ales All attorney

residing outside of the District, and having business ©

Appendiz ai T° oo Appendiz

b this court, shall asociate with them in the action a resident

‘ attorney on whom notice may be served and who shall have

the authority. to act for and on behalf of the client in all

matters, including pre-trial conferences and the trial of

the ease: Such resident attorney shall sign the first plead-

ing filed and continue in the case unless other resident

counsel he substituted. .

An appropriate Order. will this day be entered.

Appendix B.

‘UNITED STATES COURT OF APPEALS

\. FOR THE EIGHTH CIRCUIT

No. 15,937 .

Appeal from the United States District Court for the

District of Nebraska. :

GEORGE H. BRASIER, Appellant,

: vs. : '

CLARK JEARY, PAT ASH, DAVID L. ERICKSON,

HARRY BREHM, GEORGE A. MEHSER, CONRAD

SCHNEIDER, JACK SCHLEGEL, WELFARE SOCIE-

TY, INC. AMERICAN FORWARD ASSOCIATION,

INC., and OTHERS UNKNOWN, Appellees.

(June 23, 1958.)

George H. Brasier, Appellant, pro se,

No brief filed on behalf of Appellees. ,

Before Gardner, Chief Judge, and eon and Matthes,

| -¢ ireuit Judges.

Vogel, (" rreuit Judge.

me 1 8 —_ <

Appendiz , Appendis

‘In this appeal there is raised the single question of

whether a party to’a civil suit may appear pro se and ine’

sist on the right to be represented by counsel at the same

time. Appellant, a non-resident. of Nebraska, commenced

this suit for damages signing the complaint ‘‘George H.

Brasier, Plaintiff, pro se.’’ The complaint was also signed

by “J. A. Hayward, Resident Attorney,’’ with whom appel-

; lant had a w ritten: contingent fee contract. Before con

mencement of the jury trial and in chambers, Mr. Hay-

ward made the following motion: able tee paras

“On behalf of the plaintiff we move the court for per-

mission for the plaintiff, inasmuch as he has filed his peti-

tion pro se here in this case, and wishes ‘to assist counsel .

in conference ontvarious questions and matters involved in

this case, and to assist counsel in argument, to. aid counsel

in making a statement to the court of sch matters either

- overlooked by counsel or that he considers proper in con:

nection with counsel’s statements during the progress of

the trial involved in this ease.”

The motion was denied. See the trial court’s opinicn,

Brasier v. Jeary, 1957, 154, F. Supp.-631, «J. A. Hayward:

— counsel’? appears on appellant’s brief i in this court but

appellant, personally, presented the ‘oral argument with-

out assistance.

28 1. S. A., See, 1654 provides: as follows:

See, 1654. penlies personally or by connsel 2

al! conrts of the United States the parties may plead an!

conduét their own eases personally or by counsel, as, bY

the rules of such courts, ape anies permitted: to

manage and conduct causes therein’? (Emphasis supplied

ne

~I9—

Appendiz : a : Appendiz

Appellant’s first contention is that the foregoing sta-

- tute is so’ indefinite and vague that it ««*.° © is violative of

the essentials of ‘due process of law’ secured by the Fifth.

Amendment to the Federal ( onstitution:’? His second con--

tention is that he possesses a fundamental right to appear __

in person in the federal courts and to ‘‘*.* * conduct the

“prosecution of his own controversy with aid of associate

counsel, and that Corigress and fhe Judiciary do not have

one scintilla of authority to deny that right, and to do so

—would be violative of ‘due process of law’ secured by the

Fifth Amendment to the’ Federal . Constitution. sop

~ We do not find See. 1654. vague and indefinite as con-

tended by the appellant. It seems to us that it clearly sets

forth that in all courts of the United States parties have |

the right to plead and -conduct their cases Personally or |

_by counsel and that- such representation by counsel shall

be in ace ordance with the rule of the courts.

Appellant directs our attention to Rule 9 of the District

Court of the Distriet of Nebraska as follows: : ‘Admission -

- to Try a Particular Case All attorneys residing outside of

_ the District, and having business in this court, shall associ-

ate with him in the action a resident attorney on whom

notice may be served and who shall have the authority to

ict for and on ‘behalf of the client in all matters, including

pre-trial conferences and the trial of the case. Such resi-

dent attorne Vv shall sign the first pleading filed and continue

in the case unless other resident counsel be substituted:’?

The rule is-Aire ected specifically, to non-resident attorneys

and is similar to rules adopted in most jurisdictions, hav-

™ —

_ ing the twin objective

- doing so he Possesses the fundamental right to also have

° © -

Appendiz Appendiz

-of convénience for service of process

and: the presence of counsel w ithin the jurisdiction of the

court. It i is not applicable to a pro se proceeding. If any.

attempt w ere made to force non- resident parties to eamploy

resident counsel in the manner contemplated by Rule 9,

supra, then grave doubt would be cast upon the legality of

“such proposed rule. It seemingly would violate 28°U. S.

C. A., See. 1654, supra. We think local Rule 9 is of no aid:

to appellant i in his present contention.

As to appellant’s second point, there is no doubt about

his possessing the right to appear in person and conduct the

prosecution. of his Own case, but we do not agree: that in

-

the aid of counsel. 28 U. 8. eC. A. See. 1654 i is direetly de TV

ed from the first eo Act of September 24; 1789, ¢.

20, See..35, J Stat. 73, 92, R. S. of 1873, See, 747." In its

ériginal form, the oat reads:

“Tn all the courts of the T ited States the parties may

plead and marfage their own & Ses personally, or by’ “the

assistance of such counsel’ or attorneys at law as. by the

rules of the said .courts, respectively, are permitted ti

manage and conduct causes therein.’? (Emphasis —_

‘Tn Oshorh v. United States Bank® 1824, 9 Wheat. (2

U.S.) 738, 829-830, Mr. Chief Justice Marshal],:in decidine

a related question, made the folloing,statement:

v

‘*Natural persons may appear in court, either by. them

selves, or by their atteedie. ** * A corporation, if is true.

can appear only by attorney, while a-natural person may ,

bas)

‘Appendix | iecoy ‘Appendix

*.

appear for himself, But when he waives this privilege, and

elects to appear by attorney, no reagpn is perceived, why °

. tye same evidence should’ not be required, that the indivi-

dua! professing to epresent him has the authority to do

Per

s0, (E mippasis supplied.)

” “The origina’ passage of the subject statute dete the

initial year of our present form of government and its sev-

eral re-enactments without substantial change do not pre-

clude the existence of a contrary fundamental constitution-

al right, but they are highly persuasive of its non-exist-

ence. The assumed proptiety and definition of the statute’s

* effect as indicated by Osborn y. United States Bank, supra,

further diminishes the probability of existence of the right

claimed here by ‘appella . In the absence of. any specific

provision in the Constitution’ or a showing of a practice in

the Colonies contrary to 28 U.S. C. A., Sec. 1654, resort

may be had to the prior law of England for a determina-

tion of appellant’s claimed right. See Murray’s Lessee v.

Hooken | and & Improvement Co., 1855, 18 How.*(59 J. S.)

ata, 296, 277, Research discloses that when attorneys weré

first pe mitted to appear for a party as a matter of course*

under the Statute of W estminster, Second, ch. 10 (A. D.

185) @oke’s Institutes, Second (Ed. of 1817), an appro-

digit writ commanded in part ‘that, the attorney whom |

S. shgll ake in his stead to do suit for him’’ be received

“in the place of the said S. for this purpose, *’ Fitzh. Nat.

Brey. 156 (1 534) (9th ed. he Se al

~

we,

“s

say ee

La

wie —-22-— ‘ .

Appendiz . ‘ , i Apperés:

In Coke’s Institutes, Fourth, (1644) (Ed. of IStt).

page 296, we find language similar to that of 2S U.S.C. 4

See. 1654:

‘‘And any person that is to Make any claim may ©

first day ef the eire (circuit vourt) either make it in pe

son or by attorney ** “See betore eqyp. dilstices in- Kinet

writ in the Regist(er). 19. a. W(estminster), 2, cap. le

(Emphasis and parentheses supplied.) .

We think it clear that the statutes and settled usage

of Englaid provides that parties litigant were to mak’

their claims-cither in person,or by attorney. ‘The alters

tive appears to be: very clear, justifying. the conclusie

that where a person elected to appear by attorney, |

- Waived the privilege of appearing for himself” CY. Osber. ”

v. United States Bank, supra. We find nothing in our re

search to justify appellant's fissertion that he posses

the fundamental right to appear, for himsell persona.

arid also be represented by counsel at the same time. De

nial of the right to appear in both capacities is notyin ow

. »

‘opinion, violative of ‘*due process of law’? as secured |

the Fitth Amendment, ‘

There is another factor which should be weighed

appellant’s claimed right. That is the power and resp

sibility of a federal judge in a jury trial to govern a!

‘ control the conduet of the trial, See Herron Vv. Seuthe

Pacitie Co., 1931, 283.U. S. 91, 95, wherein it is said:

‘In a trial by jury in a federal court, the jitdee Is he

a mere moderator, but is the governor of the trial tert

~

. —-23—.- .

Appendia . / : . Appendis

purpose oassuring its proper conduct and of determining

questions of law. This discharge of’ the judicial function

as at common law is an essential factor in the process for

which the Federal Coustitution provides.”’

It should be noted’here that attorney Hayward’s mo-

‘tion in behalf of the appellant requested that the appel-

lant be allowed to ‘‘assjst counsel in argument’’ and ‘‘to

aid counsel in making a statement to the court of*sueh mat-

ters either overlooked by counsel or that he considers prop-

ef in conection with counsel’s statements during the

progress of the trial * * _ This is an effort by a party to

a civil suit to have. colinsel represent him to also- have

the uilqualitied right to interfere: with the proceedings at

any point he desires, to join in the argunients, to court and

jury, and to supplement his éounsel’s statements whenever

he saw fit to do so. This we believe comes clearly within

the discretionary power of a trial judge to control and reg-

ulate the orderly procedure of the trial. Hersgn v. South-

ern Pacitic Co., supra. Even in criminal matters it has eou-

siste ntly heen held that it was not error to deny a defend-

at's request that he be permitted to act as his own coun-

wl ata time.when he was represented by couysel of his

choice. In the very recent: case of Egan v. Teets, 9 Cir.

Ie, 251 F.2d 571, 578-9, it was held that the trial court's

denial of Exan’'s request that he be permitted to act as

his own counsel at the same time that he was représented

hy counsel of liis own choice did not deprive Egan of any

‘ederal constitutional right. In United States v. Foster, et

& " . Fs . ;

al., D.C. N. Y., 9 BF. R. D. 367, Judge Medina held that a

91, 149 F. 2d 23, 26.”

a

—24— as .

Appendis : " Appendts

° 2

aceused has no right to be heard both in person and hy at

torney. In denying the request of one of the detendas

to be allowed to discharge his attorney (held to be mer

subterfuge and not in good taith) and argue. Atis OWL Gir

to the jury, Judge Medina stated, at page 37

**Tn the. federal courts, where a defendant tdbis ho rig:t

to be heard both in person and by attorney, it Would seer

clear that the control of the proce edings by the court iste

less extensive. Cr, Kury v. Hutf, 4 Cir, 1944, 141 F.

554; Overholser v. De Marcos, 1945, SO LU, . App. De

See also State v. Townley, 1921, 149. AYinn. 5, 182 3.

773, 17 A. L. R. 253, 271, certiorari denied, 297 U.S.

643. In Shelton v. United States, 5 Cir., 1958, 200 I. 2d 4,

812, the defendant in a criminal case was denied the right

‘‘to manage his own case and yet have the assistauee v

counsel.’? There “* * * defendant persisted: in his conte:

tion ‘that, under the ‘Constitution of the United States, lr

had the right to ‘assistance of counsel, as he interprete!

those words, and that the statute, Section 1654, Title =.

U.S. C. A., which undertook to state the defendant's riz!

in the alternative was contrary to the Constitution aan | il

valid.”’ The Court of Appeals for the Sth Circuit state:

page 813 of 205 F. 2d: . .

“We cannot agree with the defendant that the statul

was invalid or that the action of the court in‘declining !

permit the defendant to Dotinsian the way in which hiis ¢ eas

. . a= 256 ed B ‘ \

Appendix | _ — Appendts

should he tried, deprived him of any constitutional right.

Indeed, his stubborn and persisitent contentiousness in re-

spect to the reasonable: rulings and requests of the. trial

judge in the matter -of the conduct of the trial aml the

“judge's patience and uniform courtesy in conducting it

uuder great difficulties both tremendously and unduly pro-

longed the trial and alforded him the widest latitude to get

before the jury matters he wished tliem to know without

his having to take the stand. S

_ See United States v. Private Brands, ban, 2 Cie, 1954,

"250 F. 2d 554, certiorari denied, 255 U. S. 957; United

States v. Mitchell, 2 Cir., 1948, 137 Fy 2d 1004, rehearing

138 F, 2d 831, — denied, 321 U.S. 794, rehearing

denied 322 U. S. 768.

The Court of Appeals for the District of Columbia, in

Overholser v. De Maros, 1945, 149 F. 2d 23, 26, certiorari

denied, a U.S. 889, had occasion to comment ahque“the

conduct of a case in which the petitioner, in a habeas cor-.

pus proceedings, was represented by’ counsel but neverthe-

less conducted his own case:

‘During the hearing the petitioner was represented

by counsel. Nev ertheless the court permitted petitioner to

conduct the trial while his counsel sat silent.. This is an

undesirable practice, Where a party is’ represented by

competent Counsel his ease should’ be conducted by that

counsel unless it hecomes apparent that the interests of —

justice’ Fequire the party’s active participation pro se.

Such circumstances are rare and were not present in this +:

cuse,"?

‘party were allowed to actively participate in ‘the cond

termination of when such situations arise rests square:

eral defendants hiad “by way of conspizacy, fraud and ot.

1. =-26—,

Appendiz a" Appendu

We conclude thiat the appellant has no constitutions.

or other right to conduct his own case prose atid have t”

aid of counsel to speak and argue for him at the same to

It may be, as suggested by the Court of Appeals of

District of Columbia in Overholser v. De. Marcos. supr. ’

that in rare circumstances it might be good practice w

could aid in the fair presentation of claim or de ‘euse of

of the trial, even though represented by counsel, ‘The

With the trial judge, who bears the responsibility fort

orderly conduct of the trial, and an appellate court show:

not interfere with the trial court *s exercise of that disere

tion. Here the-appellant’s complaint asserted that the se:

.

er illegal means’ committed some 220 separate and distin:

see"? against the person and property” of ap

‘illegal acts

pellant. Appellant also claimed a consequent deprivat)’

of his civil rights. The orderly conduct of this potentials

complicated trial was the responsibflity ie trial jude

It was ‘within his power to grant or den the motion ma»

by appellant’s counsel. Iu exercising his discretion lie cot

mitted no error.

“Affirmed

- A true copy.

“Attest: Cerk, UL S. Court of Appeals, Eighth Cire’

Ly

»s * ‘—27—

aes * Appendix

Appendix C.

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT. — . :

No, 15937. September Term, 1957,

Appeal from the United States District Court for the Dis-

trict of Nebraska.

GEORGE H. BR ASTER, es

v8. ~

_ CLARK JEARY, et m

On consideration of Petition of the appellant for a

rehearing by this Court en bane in this cause. It is now

here ordered by this Court that the same be,’ and it is

hereby,. denied.

_ _ And it is-further ordered by this Court, on considera-

tion’of the further. motion of appellant for a stay of the

fmandate in this cause pending petition to the Supreme

Court of the United States for writ of certiorari, that the

- Issuance of the mandate be, and it is hereby, stayed for a

period of thirty days from and after this date, and if with-

in said period there is filed withthe Clerk of this Court a

certificate of the Clerk of the Supreme Court of the Unit-

td States that a petition for writ of certiorari and record

have-been filed, the stay hereby granted shall gontinue un:

til final disposition of this case by the Supreme Court.

July 21, 1958,

Appendix D.

«TU, a Section 1654:

“Ty all of the courts of the U nited States the parties

. may plead and conduct their own cases personally or by

Appendiz Fe - ; A ppendt :

counsel, as, by the rules of such -courts, respectively, ar

permitted to manage and conduct causes therein’? “As

amended May 24, 1949. See. G1063 Stat. 105.

°

Rule 9 of the District Court:

. Admission to Try a Particenlar ease.

“*All attorneys residing outside of the District, ar

having business in this court, shall associate with them >.

the action a resident attorney on whom notice may be ser

ed and who shall have authority to act for and on belia!!

of the chent in all matters, including pre-trial: conferences

and the trial of the case, Such resident attorney sha!

sign the first pleading filed and continue in the case unles

other resident counsel be substituted.”

Article I, Section. 1, Federal Constitution:

‘All legislative powers herein granted shall be veste:

in a Congress of the United States, * * *.””

--Fifth Amendment to the Federal Constitution:

“*.* * nor be deprived of life, liberty, or property.

without due process of law; * * *.7?” a

CERTIFICATE, - aa J

I do hereby certify that copies of the foregoife T°

tition have been miailed to attorneys for parties Jefe

eerned and the Solicitor General of the United States

ae) GEORGE TH. BRASIER.

August, 1958. 7 .