Petitioners Brief — Wood v. Georgia

Supreme

FILS

No. 79-6027 AUG15 1980

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

RAYMOND WOOD, EDNA ALLEN and JAMES TANTE,

Petitioners,

VS.

THE STATE OF GEORGIA,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF GEORGIA

BRIEF FOR PETITIONERS

GLENN ZELL

Suite 620

66 Luckie Street, N.W.

Atlanta, Georgia 30303

(404) 524-6878

Attorneys for Petitioners

enieadaaiaieinill

Washinaton OC e CLE PUBLISHERS @¢ LAW PRINTING CO e (707) 393 06275

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

No. 79-6027

RAYMOND WOOD, EDNA ALLEN and JAMES TANTE,

Petitioners,

vs.

THE STATE OF GEORGIA,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF GEORGIA

QUESTION PRESENTED

Once a trial judge has determined that probation is the

appropriate punishment for a particular offender, and im-

poses a fine to be paid on installments during the proba-

tionary period, may it, consistently with the Equal Protec-

tion and Due Process Clauses of the Fourteenth

Amendment, revoke the probation of the offender for failure

to pay the installments as directed where the evidence

established that the offender was indigent and that the

offender was not negligent in any manner, and did not

deliberately disburse or dissipate monies that resulted in his

inability to pay?

I

II

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

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SUMMARY OF THE ARGUMENT ................... 4

ARGUMENT

1. THE REVOKING OF PROBATION DUE

TO THE FINANCIAL INABILITY OF

THE PETITIONERS TO PAY $500.00

PER MONTH VIOLATES PETI-

TIONERS’ EQUAL PROTECTION

RIGHTS UNDER THE FOURTEENTH

By Pe er ee ee 5

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TABLE OF AUTHORITIES CITED

Page

Cases:

Allen and Tante v. State,

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Barnett v. Hopper,

rtm ° £ gil gs ) PR reper pete <a chara st tk 5

Barnett v. Hopper,

548 F2d 550 (Sth Cir. 1979), Vacated Hopper v.

meth, SP Wi. TSE CH HON ove centavos cavtsccees 6

III

Calhoun v. Couch,

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Dandridge v. Williams,

IED op cca redidduce vi scccevdccbésins 7

Douglas v. California,

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Draper v. Washington,

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Eskridge v. Washington State Board of Prison Terms,

ee aa as) ord wus ove 66 veien¥ oe sees 8

Frazier v. Jordan,

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Griffin v. Illinois,

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Harper v. Virginia State Board of Elections,

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Hensley v. U.S.,

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Hunter v. Dean,

iver vevewsverecacveeeccvess 5

Lane v. Brown,

S| Pee 8

Maher v. Roe,

UTD <. c cp cdusccscsvccvccccvssses 7,8

McDonald v. Board of Education,

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Morris v. Schoonfield,

301 F.Supp 158, vacated 399 U.S. 508 (1970). 5, 6, 11

Rinaldi v. Yeager,

es csp sk doen cbcceedcsessces 8

San Antonio School District v. Rodriguz,

ET ER Fe a 7,8

Shapiro v. Thompson,

sss 6 on ep eb koe ke #866 10, 11

Sherbert v. Verner,

ie he S| A ree Fe ae A 9,10

Skinner v. Oklahoma, ex rel Williamson,

Pe es ee I 5055s bates eedeweedeseues 9,10

Tate v. Short,

Me BE ee CREE ccccncaranetnk na cune cad ba O38 5, 6

U.S. v. Boswell,

8 Eye 2 Ae...) Serer ee 6

U.S. v. Savage,

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U.S. v. Taylor,

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Williams v. Illinois,

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Wood v. State, 8

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Wood v. State,

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Statutes:

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United States Constitution, Fourteenth

SE ogee ca es oa eee ee ak ek eke ies a, 3% 32

BRIEF OF PETITIONERS, WOOD, ALLEN,

AND TANTE ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF

GEORGIA

Petitioners, Raymond Wood, Edna Allen, and James

Tante pray that the opinion and judgment of the Court of

Appeals of Georgia be reversed.

OPINION BELOW

The opinion of the Court of Appeals of Georgia is reported

at 258 SE2d 171 (1979), and was filed on June 5, 1979, and

appears at p. 42 of the Appendix.

JURISDICTION

The judgment of the Court of Appeals of Georgia was

entered on June 5, 1979. A rehearing was denied on July 6,

1979. A copy of the denial appears as Appendix ““B”’ to the

Petition. Thereafter petitioners filed a Petitioin for Writ of

Certiorari to the Supreme Court of Georgia which was

denied on September 4, 1979. A copy of the denial appears

as Appendix “‘C” to the Petition. Mr. Justice Powell granted

an extension of time to and including February 1, 1980

within which to file a petition for Writ of Certiorari. A timely

petition for Writ of Certiorari was duly filed on February 1,

1980, and on May 19, 1980, the petition was granted.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent provisions of the Fourteenth Amendment to

the Constitution, and Ga. Code Ann. § 27-2901, appear as

Appendix “D”’ to the petition.

STATEMENT

Petitioners were placed on probation after being convicted

of distribution of obscene materials. Their cases are reported

at 240 SE2d 743, and 240 SE2d 754 (1977). Wood

received a ten thousand ($10,000.00) dollar fine and twelve

(12) months on probation on each of two (2) counts to run

consecutively. Tante and Allen each received a five

thousand ($5,000.00) dollar fine and twelve (12) months on

probation. (Appendix 11-16)

The remittiturs were made the judgment of the trial court

on October 23, 1978. The trial judge, in each probation

order, as a condition required each appellant to pay five

hundred ($500.00) dollars per month until the fine was paid.

(Appendix 17-25)

Thereafter, on January 12, 1979, or approximately 2 1/2

months after being placed on probation, a petition for

revocation of probation was filed against each petitioner and

the sole ground for revoking the probation was that the

petitioner failed to pay as directed. (Appendix 26-31)

A hearing was held on January 26, 1979. Jacqueline L.

Tomlin, Edna Allen’s probation officer, testified that the

petitioner was on unemployment compensation, and that

Allen had not paid the $500.00 per month and had no idea

how she would raise the fine money. (Tr. 4-6) Upon

3

questioning by her counsel, Allen testified that she received

$64.00 per week or about $250.00 per month, and has no

other assets or sources of income. (Tr. 7) Allen is presently

having eye trouble, is 54 years of age, and has been turned

down for employment. (Tr. 8, 9, 24, 25) She borrowed

money to pay for her eye glasses, and has no money left over,

after paying expenses, to pay on her fine. (Tr. 9-11)

Gene Odum, James Tante’s probation officer, testified

- that Tante had complied with the conditions of probation ex-

cept paying the $500.00 per month on the fine. Tante told

Odum that his employer was supposed to pay the fine, and

that he was on a very tight budget. (Tr. 33) Tante testified he

worked for the State of Georgia as a correctional officer. His

gross income is $540.00 per month, and he has no other

property or income. (Tr. 33, 35) His net pay is $516.00 per

month, and he had nothing left over in November and

December to pay on the fine. (Tr. 36, 37)

Tante is 60 years of age and was unemployed for eight

months and was on unemployment before he obtained his

present job. (Tr. 38-40)

Dixon E. Nash, Raymond Wood’s probation officer,

testified that Wood had not paid the fine as directed. Wood

had been terminated from his prior employment, and just

started a new job. His gross income is $120.00 per week at

his new job. (Tr. 53) Wood’s net pay was about $155.00

after deductions on his old job, and he had no money left over

to pay his fine. Also, he is the sole support of his wife and

three children and his wife is pregnant. (Tr. 54, 55)

The Court issued an Order revoking the probation of all

three petitioners on the sole ground that each petitioner

violated the terms of probation by not paying the fine as

directed, being $500.00 per month or $1500.00 for three

months. (Appendix 32-34, 38-41)

4

SUMMARY OF THE ARGUMENT

The issue presented in this case is simply whether a trial

judge may revoke the probation of the offender where he has

not paid the monthly installments set by the court due to his

indigency.

Petitioners contend that they are denied equal protection

of the law as applied since going to prison depends solely on

the petitioners’ financial ability to pay the fine. The fact that

the difference in treatment may be unintended, and results

from the judge enforcing a statute which is valid on its face,

does not preclude an attack on the court’s order on equal

protection grounds. Griffin v. Illinois, 351 U.S. 12 (1956).

Secondly there is no compelling state interest to collect the

fines and imprisonment and imprisonment certainly will not —

serve the State’s interest in the rehabilitation and re _1a-

tion of the three petitioners. The State, through civil process,

can always enforce the collection of the fines such as by levy

or garnishment. Imprisonment, due solely to their indigency,

does not promote the State’s interest as all this could

accomplish would be to incarcerate all poor people or

indigents who cannot pay their fines.

5

ARGUMENT

1.

THE REVOKING OF PROBATION DUE

TO THE FINANCIAL INABILITY OF THE

PETITIONERS TO PAY $500 PER MONTH

VIOLATES PETITIONERS’ EQUAL PRO-

TECTION RIGHTS UNDER THE FOUR-

TEENTH AMENDMENT.

The Court in Wood, et al. v. State, supra, relied on

Hunter v. Dean, 239 SE2d 791 (1977). See also Barnett v.

Hopper, 217 SE2d 280 (1975) and Calhoun v. Couch, 207

SE2d 455 (1974). In Hunter the Georgia Supreme Court

held that Tate v. Short, 401 U.S. 395 (1971), Morris v.

Schoonfield, 399 U.S. 508 (1970), and Williams v.

Illinois, 399 U.S. 235 (1970) are limited to their precise

facts, and therefore, a defendant may be imprisoned for

failure to pay his fine immediately.

It is true that the three Supreme Court precedents are

distinguishable from the case at bar. In Williams v. Illinois,

supra, this Court held that an individual unable to pay a fine

could not constitutionally be incarcerated beyond the

maximum duration fixed by statute. The Illinois defendant

had been sentenced to the maximum confinement and then

required to remain 101 days further to satisfy at $5 per day

his $505.00 fine and court costs. On the same day this Court

in Morris v. Schoonfield, supra, vacated a conviction and

remanded it for reconsideration in light of Williams v.

Illinois. Justice White, with three other justices concurring,

opined that an indigent could not be imprisoned for failure to

pay a fine immediately, regardless of whether this resulted in

incarceration for a term longer than the maximum permitted

6

under statute. This was based on the view that the constitu-

tion forbade converting a fine into a sentence due to

immediate financial inability to pay. The next term in Tate v.

Short, supra, this Court adopted the language from the

Morris case and held that it was unconstitutional to convert

a fine into imprisonment for failure to pay a fine im-

mediately.

However, in Tate v. Short, supra at 400, this Court stated

that:

‘“* * * Nor is our decision to be understood as

precluding imprisonment as an enforcement method

when alternative means are unsuccessful despite the

defendant’s reasonable efforts to satisfy the fines by

those means; the determination of the constitutionality

of imprisonment in that circumstance must await the

presentation of a concrete case.”

The facts of the present case appears to be the concrete

case mentioned in Tate.

The Federal courts have followed literally the rule set out

in Tate, supra at page 400, that:

“‘We emphasize that our holding today does not

suggest any constitutional infirmity in imprisonment of

a defendant with the means to pay a fine who refuses or

neglects to do so.”

In U.S. v. Boswell, 605 F.2d 171 (Sth Cir. 1979), the

Court held that a revocation of probation was erroneous if

defendant did not have the resources available, had no way

to acquire them, and was not negligent or deliberate in

allowing funds that he had to be disbursed or dissipated in a

manner that resulted in his inability to pay. See also Barnett

v. Hopper, 548 F.2d 550 (Sth Cir. 1979), vacated as moot,

Hopper v. Barnett, 439 U.S. 1041 (1978).

Similarly in U.S. v. Taylor, 321 F.2d 339 (4th Cir. 1963),

7

the Court held that if the defendant was too poor to pay the

fines, and was sincere in trying to pay the fines, his probation

should not be revoked.

In U.S. v. Savage, 440 F.2d 1237, 1239 (Sth Cir. 1971)

the Court held that a defendant:

“can not be held to be in violation of the condition (of his

parole) unless he is clearly at fault.”

The court held that the District Court could not revoke

appellant’s probation unless it is positively and clearly

shown that the failure to meet the condition was due to the

appellant’s neglect or default.

In Hensley v. U.S., 257 F.2d 61 (Sth Cir. 1958), the

probation was properly revoked since the defendant had

fraudulently transferred assets to avoid the payment of

taxes.

Petitioners argue that to imprison a person for financial

inability to pay a fine immediately violates equal protection

of the law since the sole distinction is one of wealth, and

therefore the procedure is invalid, Frazier v. Jordan, 457

F.2d 726 (Sth Cir. 1972).

Even though the proposition that wealth is a “suspect

classification” has been questioned by San Antonio School

District v. Rodriguez, 411 U.S. 1, 21 (1973), the basic

principle of law is sound.

Although this Court has characterized exclusions based

upon wealth as “traditionally disfavored.” Harper’ v.

Virginia State Board of Elections, 383 U.S. 663, 668

(1966), it has stopped short of branding wealth distinctions

across the board as “‘suspect”’ per se. In Maher v. Roe, 432

U.S. 464, 471, fn.6 (1977), this Court made it clear that its

restraint on the point has not been exhibited in cases

involving the administration of criminal justice but in such

areas as “economics and social welfare.”’ Dandridge v.

—

8

Williams, 397 U.S. 471 (1970) (family ceilings on

AFODC payments) San Antonio Independent School

District, v. Rodriguez, supra. (public school financing);

Maher v. Roe, supra. (Medicaid expenditures). These are

matters which are heavily laden with public policy consid-

erations, which are susceptible to a variety of legitimate

approaches, and which require a balancing of diverse

interests and priorities. In short, these are areas which are

especially within the legislative domain, and are areas in

which it would be impossible to decree “absolute equality or

precisely equal advantages.” San Antonio Independent

School District v. Rodriguez, supra, 411 U.S. at p. 24.

One must begin with the fundamental principle of Griffin

that justice must be administered to all persons equally.

‘There can be no equal justice where the kind of trial a man

gets depends on the amount of money he has.” Griffin v.

Illinois, supra, 351 U.S. at p. 19.

Decisions following Griffin have consistently reaffirmed

these fundamental principle of equal justice. Eskridge v.

Washington State Board of Prison Terms, 357 U.S. 214

(1958); Douglas v. California, 372 U.S. 353 (1963); Lane

v. Brown, 372 U.S. 477 (1963); Draper v. Washington, 372

U.S. 487 (1963).

It must be admitted that the equal protection clause does

not require “Absolute equality.”” Douglas v. California,

supra, 372 U.S. at 357. It is not “a demand that a statute

necessarily apply equally to all persons.” Rinaldi v. Yeager,

384 U.S. 305, 309 (1966), and it permits a state to “provide

for differences so long as the result does not amount to * * *

an ‘invidious discrimination.’”’ Douglas v. California,

supra, 372 U.S. at p. 356.

Simply stated the concept of the equal protection of the

laws compels recognition of the proposition that persons

9

similarly situated with respect to the legitimate purpose of

the law receive like treatment.

The traditional test has been that the ‘“‘distinction drawn

by a challenged statute must bear some rational relationship

to a legitimate state end and will be set aside as villative of the

Equal Protection Clause only if based on reasons totally

unrelated to the pursuit of that goal.” McDonald v. Board of

Education, 394 U.S. 802 (1969)

This Court has tended to employ a two level test in

reviewing legislative classifications under the equal protec-

tion clause. In the area of economic regulation, this Court

has experienced restraint, investing legislation with a

presumption of constitutionality and requiring, merely that

distinctions drawn by a challenged statute bear some

rational relationship to a conceivable legitimate state

purpose. McDonald v. Board of Education, supra, 394——~

U.S. at p. 809.

On the other hand cases involving suspect classifications

or touching on fundamental interests this court has adopted

an attitude of active and critical analysis, subjecting the

classification to strict scrutiny. Skinner v. Oklahoma, ex rel

Villiamson, 316 U.S. 535, 5414942); Sherbert v. Verner,

374 U.S. 398, 406 (1963).

Under the strict standard applied in such cases, the state

bears the burden of establishing not only that it has a

compelling interest which justifies the law but that the

distinctions drawn by the law are necessary to further its

purpose.

In Williams v. Illinois, supra, this Court dealt with the

equal protection clause in a factual setting very similar to the

one now before this court. This court applied the teachings of

the Griffin case, since the Illinois statute as applied to

Williams works on invidious discrimination solely because

10

he is unable to pay the fine. On its face the statute extends to

all defendants an apparently equal opportunity for limiting

confinement to the statutory maximum simply by satisfying

a money judgment. In fact, this is an illusory choice for

Williams or any indigent who, by definition is without funds.

Since only a convicted person with access to funds can avoid

the increased imprisonment the Illinois statute, in operative

effect, exposes only indigents to the risk of imprisonment

beyond the statutory maximum. By making the maximum

confinement, contingent upon one’s ability to pay, the State

has visited different consequences on two categories of

persons since the result is to make incarceration in excess of

statutory maximums applicable only to those without the

requisite resources to satisfy the money portion of the

judgment. This Court also appears to have concluded that

the discrimination inherent in the type of sentence in

Williams is not necessary to promote such “‘substantial and

legitimate’ interest. By pointing to the existence of alter-

native, less intrusive methods of promoting this interest, this

Court in effect demonstrated the lack of necessity. J/linois v.

Williams, supra.

In this case, as in Williams, this court is presented with an

example of discrimination between different groups or

classifications of convicted criminal defendants—those who

are poor and those who are not—or, to put it another way, of

discrimination based upon poverty.

Therefore, the instant case involves “‘suspect classifica-

tions%., which must be reviewed and evaluated under the

stricter standards mentioned in Skinner v. Oklahoma,

supra. See also Shapiro v. Thompson, 390 U.S. 618, 638

(1969); Sherbert v. Verner, 374 U.S. 398, 406 (1963).

We next turn to whether imprisonment of an indigent con-

victed defendant for non payment of a fine is “necessary to

1]

promote a compelling government interest, * **.” Shapiro v.

Thompson, supra, 394 U.S. at p. 634.

Assuming that the state’s interest in the collection of fines

and in the reformation and rehabilitation of convicted

defendants is “substantial and legitimate” as in Williams v.

Illinois, supra, the crucial question is whether the practice of

imprisoning indigent convicted defendants is necessary to

promote either of these interests.

First it would seem absurd that imprisonment can serve

the end of enforcing collection of the fine at all in the case

before this court. Proper use of imprisonment as a coersive

mechanism presupposes an ability to pay. In the instant case

we deal with the application of the practice to indigents.

Therefore, as applied to indigents, one fails to see how either

the threat or the actuality of imprisonment can force a man

who is without funds, to pay a fine. Morris v. Schoonfield,

supra, 301 F. Supp. 158, 163, vacated on other grounds,

399 U.S. 508.

Also since this Court in Williams pointed out that the

state has available to it alternative procedures for collecting

fines, one must conclude that imprisonment of indigents is

not necessary to promote this state interest. Williams v.

Illinois, supra, fn. 21.

Finally is imprisonment permissible because it serves the

State’s interest in the rehabilitation and reformation of

indigent offenders? The argument for imprisonment of an

indigent offender whould be that it impresses upon him his

responsibility to the county for his criminal behavior. It does

not follow, however, that the mere equating of the imprison-

ment of the indigent who cannot pay a fine with the cash

payment of the nonindigent who can, to the end of promoting

the rehabilitation of both classes of offenders, compels the

conclusion that the treatment of the former is constitu-

12

tionally permissible. By using alternative methods, and by

requiring compliance on the part of an indigent offender with

onerous conditions, this should serve to make him aware of

his responsibility for his criminal conduct and to encourage

him to become a law-abiding citizen.

In summary, the record before this Court shows beyond

any contradiction that the petitioners were granted probation

and that they were unable to pay their fines and their

probation was revoked solely because of their indigency.

They incurred imprisonment, not because they refused to

comply with the conditions of probation, but simply because

they were unable to do so. Although the trial judge had

apparently determined that a proper punishment for their

offenses did not require incarceration, the petitioners were

unable to obtain their freedom only because they were poor.

The inescapable conclusion is that petitioners’ probation

was revoked due to the inability to pay the fines imposed, and

that the imprisonment was not necessary to promote any

state interest, and constituted an invidious discrimination

based on their poverty in violation of the equal protection

clause of the Fourteenth Amendments.

13

CONCLUSION

In view of the foregoing, petitioners respectfully urge the

Court to reverse the decision below.

Respectfully submitted,

s/Glenn Zell

GLENN ZELL

Suite 620

66 Luckie Street, N.W.

Atlanta, Georgia 30303

(404) 524-6878

Attorney for Petitioners

CERTIFICATE OF SERVICE

I, GLENN ZELL, hereby certify that I have duly served a

copy of the foregoing Brief of Petitioners on Hon. Arthur

Bolton, Attorney General of Georgia, by placing same in the

U.S. Mail properly addressed with adequate postage

affixed.

This 22 day of July, 1980.

s/Glenn Zell

GLENN ZELL