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United States v. Kras409 U.S. 434 (1973)

Paul J. Wahlbeck, George Washington UniversityJames F. Spriggs, II, Washington UniversityForrest Maltzman, George Washington University

Supreme Court of the United States

Memorandum

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Memorandum

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To: Mr. Justice DouglasMr. Justice BrennanMr. Justice StewartMr. Justfce White

Mr. Justice E-trf-iiiallfMr. Justice BlackmunMr. Justice Powell

Mr. Justice Rehnquist':

SUPREME COURT OF THE UNITED STATERom:

No. 71-749 Circulated: J44

Recirculated

On Appeal from the UnitedStates District Court forthe Eastern District of NewYork.

United States, Appellant,v.

Robert William Kras.

[January 10, 19731

MR. CHIEF JUSTICE BURGER, concurring.

I concur fully in the Court's opinion. The painstakingand precise delineation by Mr. Justice Harlan of theinterests involved in Boddie ought not to be ignored asthe dissenting opinions would do. Moreover, the ex-clusivity of a State's control of marriage and divorce isa far cry from the degree of government control overrelations between debtor and creditor, as MR. JUSTICE

BLACKMUN has pointed out. In a bankruptcy proceed-ing the government, through the court, is no more thanthe overseer and the administrator of the process; it isnot the absolute and exclusive controller as with thedissolution of marriage. Like the descent and distribu-tion of property for which all States have providedstatutes and probate courts, the bankruptcy court isbut one mode of orderly adjustment with creditors; itis not the only one since many debtors work out bindingprivate adjustments with creditors.

Surely there are strong arguments, as a matter ofpolicy, for the result the dissenting view asserts. ButCongress has not yet seen fit to declare the policy thatthe dissenters now find in the Constitution. In 1970Congress authorized a tri-partite commission to reviewthe bankruptcy laws.' The Commission has been en-

' Pub. L. 91-354, 91st Cong., 2d Sess., 84 Stat. 468.

Asupremo (Court of tilt Pnitar ;%tattly

tolliniItrat, P. Tr zag4gCHAMBERS OF October 25, 1972

JUSTICE WILLIAM 0. DOUGLAS

Dear Potter:

Bill Brennan, Thurgood Marshall, and I

have been talking about possible dissents, and they

wonder if you would like to write in No. 71-749\■-

Kraa?

I thought I would write in No. 71-858 -

Ricci, but I would be happy if you would undertake

that.

Mr. Justice Stewart

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To: The Chief JusticeMr. Justice BrennanMr. Justice StewartMr. Justice WhiteMr. Justice Marshall

1st DRAFT Mr. Justice BlackmunMr. Justice Powell

SUPREME COURT OF THE UNITED STAT&' Justice RehnquistFrom: Douglas, 0.

Circulated:

On Appeal from tho„ITnitedliecirculated:

States District Court torthe Eastern District of NewYork.

[ December —, 1972]

MR. JUSTICE DOUGLAS.

While I join MR. JUSTICE STEW ART'S opinion I do so

with this explicit statement of reasons. We said inBolling v. Sharpe, 347 U. S. 497, when holding that segre-gation of students in the District of Columbia violatedthe Due Process Clause of the Fifth Amendment:

"The Fifth Amendment, which is applicable in theDistrict of Columbia, does not contain an equal pro-tection clause as does the Fourteenth Amendmentwhich applies only to the states. But the conceptsof equal protection and due process, both stemmingfrom our American ideal of fairness, are not mutu-ally exclusive. The 'equal protection of the laws'is a more explicit safeguard of prohibited unfairnessthan 'due process of law,' and, therefore, we do notimply that the two are always interchangeablephrases. But, as this Court has recognized, dis-crimination may be so unjustifiable as to be violativeof due process."

The invidious discrimination in the present case is adenial of due process because it denies equal protectionwithin our decisions which make particularly "invidious"discrimination based on wealth or race.

No. 71-749

United States, Appellant,


While we join MR. JUSTICE STEWART'S opinion we do so

with this explicit statement of reasons. We said in

Bolling v. Sharpe, 347 U. S. 497, when holding that segre-gation of students in the District of Columbia violated

the Due Process Clause of the Fifth Amendment:

"The Fifth Amendment, which is applicable in the

District of Columbia, does not contain an equal pro-

tection clause as does the Fourteenth Amendment

which applies only to the states. But the concepts

of equal protection and due process, both stemming

from our American ideal of fairness, are not mutu-

ally exclusive. The 'equal protection of the laws'

is a more explicit safeguard of prohibited unfairness

than `due process of law,' and, therefore, we do not

imply that the two are always interchangeable

phrases. But, as this Court has recognized,

crimination may be so unjustifiable as to be violative

of due process."

The invidious discrimination in the present case is a

denial of due process because it denies equal protection

within our decisions which make particularly "invidious"

discrimination based On wealth or race.

To: The Chief Justice 7:1Mr. Justice Brennan , 0tiMr. Justice StewartMr. Justice White , 1tml

Mr.. Justice MarshallMr. Justice Blackmun 01.1

2nd DRAFT Mr. Justice Powell 0Mr. Justice Rehnquist 4

SUPREME COURT OF THE UNITED STATES ....iFro:- -,

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No. 71-749 nCirculated: 0

DEC 1 1 1972 r-;

On Appeal from the -uailwculated: CaUnited States, Appellant, n

States District Court forv.

the Eastern District of New 0Robert William Kra s. York. cn

[December —, 1972]

MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN.

1st DRAFT

The Chief JusticeMr. Justice DouglasMr. Justice StewartMr. Justice White

/Mr. Justice MarshallMr. Justice BlackmunMr. Justice PowellMr. Justice Rehnquist




SUPREME COURT OF THE UNITED SATES Brennan' J.

Circulated: No. 71-749

Recirculated:

[December , 1972]

MR. JUSTICE BRENNAN, dissenting.

I would affirm for the reasons stated in my separateopinion in Boddie v. Connecticut, 401 U. S. 371, 386(1971) (BRENNAN, J., concurring).

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CHAMBERS OF

JUSTICE WM. J. BRENNAN, JR. December 11, 1972

Memorandum to the Conference

RE: No. 71-749 - United States v. Kras

I am joining Bill Douglas' opinion in

the above and therefore am withdrawing

my own.

W. J. B. Jr.

Simprenzt (Ccrort of tite latritert ,tatto211pp

CHAMBERS OF

JUSTICE WM. J. BRENNAN, JR. December 11, 1972

RE: No. 71-749 United States v. KraS

Dear Bill:

Please join me.

Sincerely,,

Mr. Justice Douglas

cc: The Conference

Mr. JusticeMr. JusticeMr. JusticeMr. JusticeMr. JusticeMr. JusticeMr, Justice

DouglasBrennanWhiteMarshall 3BlackmunPowellRehnquist

From:, Stewart, , JDEC 6 1972

SUPREME COURT OF THE UNITED MAWRecirculate4

1st DRAFT

No. 71-749

United States, Appellantv.



[November —, 1972]

MR. JUSTICE STEWART, dissenting.On May 28, 1971, Robert Kras, the appellee, sought to

file a voluntary petition in bankruptcy. In an accom-panying affidavit, he described his economic plight. Heresided in a 21/9-room apartment with his wife, his twoyoung children, his mother and her child. His eight-month-old son had cystic fibrosis and at the time of theaffidavit was undergoing hospital treatment. Unem-ployed since May 1969, except for odd jobs, he supportedhis household on a total public assistance allotment of$366.00 per month—all of which was consumed on rentand the most basic necessities of life. His sole assetsconsisted of $50 worth of clothing and essential house-hold goods.'

He sought a discharge from over $6,000 in debts, par-ticularly his indebtedness to a former employer that hecontended hampered his present efforts to find a perma-nent job: "I earnestly seek a discharge in bankruptcy .in order to relieve myself and my family of the distressof financial insolvency and creditor harassment and inorder to make a new start in life. . . . When I do geta job I want to be able to spend my wages for the sup-port of myself and my family and for the medical care

These items are exempt from distribution in bankruptcy pur-suant to 11 U. S. C. § 24 and N. Y. C. P. L. R. § 5205 (McKinney1963).


MR. JUSTICE STEWART, dissenting.

On May 28, 1971, Robert Kras, the appellee, sought tofile a voluntary petition in bankruptcy. In an accom-panying affidavit, he described his economic plight. Heresided in a 21/2-room apartment with his wife, his twoyoung children, his mother and her child. His eight-month-old son had cystic fibrosis and at the time of theaffidavit was undergoing hospital treatment. Unem-ployed since May 1969, except for odd jobs, he supportedhis household on a total public assistance allotment of$366.00 per month—all of which was consumed on rentand the most basic necessities of life. His sole assetsconsisted of $50 worth of clothing and essential house-hold goods.'

He sought a discharge from over $6,000 in debts, par-ticularly his indebtedness to a former employer that hecontended hampered his present efforts to find a perma-nent job: "I earnestly seek a discharge in bankruptcy .in order to relieve myself and my family of the distressof financial insolvency and creditor harassment and inorder to make a new start in life. . . . When I do geta job I want to be able to spend my wages for the sup-port of myself and my family and for the medical care

1 These items are exempt from distribution in bankruptcy pur-suant to 11 U. S. C. § 24 and N. Y. C. r. L. R. § 5205 (McKinney1903).

-6/ ) To: The Chief JusticeYr. Justice DouglasMr. Justice Brennan 0Yr. Justice WhiteM. Just ice Marshal110/'Mr. Justice Blackmun tT1Mr. Justice Powell

3rd DRAFT Mr. Justice Rehnquist

OI1um: Stewart, J.

No. 71-749 Recirculated° E C 8 1972

On Appeal from the UnitedStates District Court for :=3•the Eastern District of New

SUPREME COURT OF THE UNITED STATESCirculated:


Robert William Kras. r:14'

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To: The Chief Justicekr. Justice Douglasrr. Justice BrennanNT. Justice WhiteMr. Justice Marshall! 3Mr. Justice BlackmunMr. Justice PowellMr. Justice Rehnquist

4th DR AFTFrom: Stewart, J.:

SUPREME COURT OF THE UNITED STATESCirculated:

No. 71-749 Recirculated:111111a72.





MR. JUSTICE STEWART, with whom MR. JUSTICE DOUG-

LAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL

join, dissenting.On May 28, 1971, Robert Kras, the appellee, sought to

file a voluntary petition in bankruptcy. In an accom-panying affidavit, he described his economic plight. Heresided in a 2 1A-room apartment with his wife, his twoyoung children, his mother and her child. His eight-month-old son had cystic fibrosis and at the time of theaffidavit was undergoing hospital treatment. Unem-ployed since May 1969, except for odd jobs, he supportedhis household on a total public assistance allotment of$366.00 per month—all of which was consumed on rentand the most basic necessities of life. His sole assetsconsisted of $50 worth of clothing and essential house-hold goods.'

He sought a discharge from over $6,000 in debts, par-ticularly his indebtedness to a former employer that hecontended hampered his present efforts to find a perma-nent job: "I earnestly seek a discharge in bankruptcy ...in order to relieve myself and my family of the distressof financial insolvency and creditor harassment and in

1 These items are exempt from distribution in bankrupt cy pur-suant to 11 U. S. C. § 24 and N. Y. C. P. L. R. § 5205 (McKinney1963).


Memorandum

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CHAMBERS OF

JUSTICE BYRON R.WHITE

December 7, 1972

Re: No. 71-749 - U. S. v. Kras

Dear Harry:

This is chicken-narrow, but if legallysufficient to dispose of the case, I prefer itto dealing with Boddie at this time. That casein its pristine form has an overhang that isexerting uneven but discernible impact in thegeneral area of fees and counsel in civillitigation. I would rather not remove thatinfluence now. Must I in this case?

Sincerely,

Mr. Justice Blackmun

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CHAMBERS OF

JUSTICE BYRON R. WHITE

December 15, 1972

Re: No. 71-749 - United States v. Kras

Dear Harry:

Please join me.

Sincerely,


Copies to Conference

LREPRODMIED FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION; LIBRART-QF 'CONGRES.4;15,_-_,Feimmumajoemorititinyiewarrimmor,

oug asMr. Justice BrennanMr. Justice StewartMr. Justice WhiteMr. Justice BlackmunMr. Justice PowellMr. Justice Rehnquist

From: Marshall, J.

SUPREME COURT OF THE UNITED STATESDEC

No. 71-749 Recirculated:




December —, 1972]

MR. JUSTICE MARSHALL, dissenting.

The dissent of MR. JUSTICE STEWART, in which I havejoined, makes clear the majority's failure to distinguishthis case from Boddie v. Connecticut, 401 U. S. 371(1971). I add only some comments on the extraordinaryroute by which the majority reaches its conclusion.

A. The majority notes that the minimum amountthat appellee Kras must pay each week if he is permittedto pay the filing fees in installments is only $1.28. Itsays that "this much available revenue should be withinhis able-bodied reach." Ante, at

Appellee submitted an affidavit in which he claimedthat he was "unable to pay or promise to pay the filingfees, even in small installments." App. 5. This claimwas supported by detailed statements of his financial con-dition. The affidavit was unchallenged below, but themajority does challenge it. The District Judge properlyaccepted the factual allegations as true. See, e. g., Pollerv. Columbia Broadcasting System, 368 U. S. 464 (1962) ;First National Bank of Arizona v. Cities Service Co., 391U. S. 253 (1968) ; 35B C. J. S. Federal Civil Procedure§ 1197 n. 4. The majority seems to believe that it is notrestrained by the traditional notion that judges must ac-cept unchallenged, credible affidavits as true, for it dis-regards the factual allegations and the inferences which

1st DRAFT

11972

1st DRAFT

From: Elachmun, J.

SUPREME COURT OF THE UNITED Sfit&ted:Recirculated:

To: The Chief JusticeMr. Justice DouglasMr. Justice BrennanMr. Justice StewartMr. Justice White

4ir. Justice MarshallMr. Justice PowellMr. Justice Rehnquist

No. 71-740




[December —, 1972]

MR. JUSTICE BLACKMUN, memorandum.The Bankruptcy Act and one of this Court's com-

plementary Orders in Bankruptcy impose fees and makethe payment of those fees a condition to a dischargein voluntary bankruptcy.

Appellee Kras, an indigent petitioner in bankruptcy,challenged the fees on Fifth Amendment grounds. Uponreceiving notice of the constitutional issue in the Dis-trict Court, the Government moved to intervene as ofright under 28 U. S. C. § 2403 and Rule 24 (a) of theFederal Rules of Civil Procedure. Leave to intervenewas granted. The District Court held the fee provisionsto be unconstitutional as applied to Kras. 331 F. Supp.1207 (EDNY, 1971). It reached this conclusion in theface of an earlier contrary holding by a unanimous FirstCircuit. In re Garland, 428 F. 2d 1185 (1970), cert..denied, 402 U. S. 966 (1971). Pursuant to 28 U. S. C.§ 1252, the Government appealed. We noted probablejurisdiction. 405 U. S. 915 (1972).

Section 14 (b) (2) of the

I Bankruptcy Act, 11 U. S. C.

§ 32 (b) (2), provides that, upon the expiration of the

December 8, 1972

Re: No. 71-749 United States v. Kras

Dear Byron:

I take it, from your note of December 7, that you wantfrom me such response as I am able to give to your suggestedconcurrence.

I see nothing particularly wrong with your position as thatof a single Justice. I wonder, however, whether the Court itselfcould decide the case on that narrow ground. Judge Travia decidedit on Boddie as have the other district courts that lean in that direc-tion. The arguments here, pro and con, were on Boddie. My incli-nation has been that we must meet the issue head on. Of course, Isuspect, as I think you do, that this is a manufactured case with adistinct element of the ungenuine in it. Because of this, there istemptation to dispose of it summarily.

Boddie admittedly raises problems, as Hugo so easily fore-saw. I indicated, when Boddie was before us, that we might soonhave a case of an indigent wanting a $3 fishing license free. Kras,if my opinion holds, should put the brakes on that kind of thing.

Sincerely,

Mr. Justice Whi e


Memorandum

5 19 7-'S

To: The Chief JusticeMr. Justice DouglasMr. Justice BrennanMr. Justice StewartMr. Jiistice Val).teMr. Justice Marshal/Mr. Justice PowellMr. Justice Rehnauist

2nd DRAFT From: Blacan

SUPREME COURT OF THE UNITED STATESed:

Recirculated: //F/7.3No. 71-749




[January —, 1973]

MR. JUSTICE BLACKMUN delivered the opinion of theCourt.

The Bankruptcy Act and one of this Court's com-plementary Orders in Bankruptcy impose fees and makethe payment of those fees a condition to a dischargein voluntary bankruptcy.

Appellee Kras, an indigent petitioner in bankruptcy,challenged the fees on Fifth Amendment grounds. Uponreceiving notice of the constitutional issue in the Dis-trict Court, the Government moved to intervene as ofright under 28 U. S. C. § 2403 and Rule 24 (a) of theFederal Rules of Civil Procedure. Leave to intervenewas granted. The District Court held the fee provisionsto be unconstitutional as applied to Kras. 331 F. Supp.1207 (EDNY, 1971). It reached this conclusion in theface of an earlier contrary holding by a unanimous FirstCircuit. In re Garland, 428 F. 2d 1185 (1970), cert.denied, 402 U. S. 966 (1971). Pursuant to 28 U. S. C.§ 1252, the Government appealed. We noted probablejurisdiction. 405 U. S. 915 (1972).

Section 14 (b) (2) of the

I Bankruptcy Act, 11 U. S. C.

§ 32 (b) (2), provides that, upon the expiration of the-

June 20, 1974

Dear Bill and Potter:

Pe: United States v. Kras

It is so seldom that we get a follow-throughon cases. Because each of you has given me a hardtime on this one (Potter's dissent; Bill's comment onpage 175 of his last book), I thought you might be in,•torested in knowing that Mr. Kras, within six weeksof the rendition of our decision, paid the $50 filingfee in cash, in full. He was discharged in bankruptcyon March 15, 1973. So it goes.

Sincerely,

H A 6

Mr. Justice DouglafMr. Justice Stewart

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CHAMBERS OF

JUSTICE LEWIS F. POWELL, JR. December 7, 1972

Re: No. 71-749 U. S. v. Kras

Dear Harry:

Please join me.

Sincerely,

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cc: The Conference

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CHAMBERS OF

JUSTICE WILLIAM H. REHNQUIST

December 6, 1972

Re: No. 71-749 - United States v. Kras

Dear Harry:

Please join me.

Sincerely,

1.01/11


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