Zatko v. California/Dissent Stevens

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Per Curiam Opinion of the Court
Dissenting Opinion

Justice STEVENS, with whom Justice BLACKMUN joins, dissenting.

Last Term, over the dissent of three Justices, the Court amended its Rule 39 for the "vital" purpose of protecting "the integrity of our process" from those indigent petitioners who file frivolous petitions for certiorari. [1] Since the amended rule became effective on July 1, 1991, indigent litigants have filed almost 1,000 petitions, which this Court has denied without pausing to determine whether they were frivolous within the meaning of Rule 39. In my judgment, well over half of these petitions could have been characterized as frivolous. Nevertheless, under procedures that have been in place for many years, the petitions were denied in the usual manner. The "integrity of our process" was not compromised in the slightest by the Court's refusal to spend valuable time deciding whether to enforce Rule 39 against so many indigent petitioners.

The Court has applied a different procedure to the petitioners in these cases. Their multiple filings have enabled the Court to single them out as candidates for enforcement of the amended rule. As a result, the order in their cases denies leave to proceed in forma pauperis pursuant to Rule 39.8, rather than simply denying certiorari. The practical effect of such an order is the same as a simple denial. [2] However, the symbolic effect of the Court's effort to draw distinctions among the multitude of frivolous petitions-none of which will be granted in any event-is powerful. Although the Court may have intended to send a message about the need for the orderly administration of justice and respect for the judicial process, the message that it actually conveys is that the Court does not have an overriding concern about equal access to justice for both the rich and the poor. [3]

By its action today, the Court places yet another barrier in the way of indigent petitioners. [4] By branding these petitioners under Rule 39.8, the Court increases the chances that their future petitions, which may very well contain a colorable claim, will not be evaluated with the attention they deserve.

Because I believe the Court has little to gain and much to lose by applying Rule 39.8 as it does today, I would deny certiorari in these cases, and will so vote in similar cases in the future.


^1  In re Amendment to Rule 39, 500 U.S. ----, 111 S.Ct. 1572, 114 L.Ed.2d 15 (1991). The amended rule, Rule 39.8 of the Rules of the Supreme Court of the United States, provides as follows:

"If satisfied that a petition for a writ of certiorari, jurisdictional statement, or petition for an extraordinary writ, as the case may be, is frivolous or malicious, the Court may deny a motion for leave to proceed in forma pauperis."

^2  In the past, I have noted that the work of the Court is "facilitated by the practice of simply denying certiorari once a determination is made that there is no merit to the petitioner's claim," rather than determining whether "the form of the order should be a denial or a dismissal" in cases of questionable jurisdiction. Davis v. Jacobs, 454 U.S. 911, 914-915, 102 S.Ct. 417, 418-420, 70 L.Ed.2d 226 (1981) (STEVENS, J., respecting denial of petitions for writs of certiorari).

^3  "Our longstanding tradition of leaving our door open to all classes of litigants is a proud and decent one worth maintaining. See Talamini v. Allstate Ins. Co., 470 U.S. 1067, 1070, 105 S.Ct. 1824, 1825, 85 L.Ed.2d 125 (1985) (STEVENS, J., concurring)." In re Sindram, 498 U.S. ----, ----, 111 S.Ct. 596, 599, 112 L.Ed.2d 599 (1991) (Marshall, J., dissenting, joined by BLACKMUN, and STEVENS, JJ.).

^4  "And with each barrier that it places in the way of indigent litigants, . . . the Court can only reinforce in the hearts and minds of our society's less fortunate members the unsettling message that their pleas are not welcome here." In re Demos, 500 U.S. ----, ----, 111 S.Ct. 1571, 1571-1572, --- L.Ed.2d ---- (1991) (Marshall, J., dissenting, joined by BLACKMUN and STEVENS, JJ.).

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).