Swarb v. Lennox/Dissent Douglas

by William O. Douglas

MR. JUSTICE DOUGLAS, dissenting in part.

Pennsylvania permits creditors to extract from debtors their consent to a confession-of-judgment procedure which, while not rendering debtors completely defenseless, deprives them of many of the safeguards of ordinary civil procedure. A group of low-income plaintiffs asked the three-judge court below to enjoin the further operation of this scheme on the ground that debtors who consented to this abbreviated form of justice did so unwittingly or did so out of compulsion supplied by the standard form of adhesion contracts. The District Court granted limited relief, holding that the scheme worked a denial of procedural due process only when applied to individual debtors who earned less than $10,000 annually and who entered into nonmortgage credit transactions, except where it is shown prior to judgment that their waivers had been knowing and voluntary. The plaintiffs have appealed, arguing that the lower court should have invalidated the regime on its face and that, in any event, class relief was wrongly denied both to persons earning more than $10,000 yearly and to home mortgagors.

The Commonwealth did not cross-appeal but instead now confesses that the scheme is unconstitutional and agrees substantially with the appellants. Various lending institutions intervened below but have not taken [p204] cross-appeals.^[1] When the appeal was filed in this Court, they did, however, file a motion to dismiss that contained an argument on the law governing the main facets of the case. Moreover, at the request of this Court they filed a brief, maintaining that the District Court correctly excluded mortgage borrowers and consumer borrowers with incomes in excess of $10,000 from the class benefited by the decree and that it incorrectly found that the Pennsylvania cognovit procedure was unconstitutional unless the debtor knowingly and understandingly consented to the authorization to confess judgment.

[p205] The appellees are the county's prothonotary and sheriff and they are represented here by the Attorney General of Pennsylvania who concedes before us that the State's statutes in question are unconstitutional. No one suggests, however, that there is lacking a case or controversy. Appellants say the District Court did not go far enough. Whether we affirm, modify, or reverse, the decree of the District Court has an ongoing life. It has not become moot. Large interests ride on the outcome of this important litigation.

It is said, however, that the case is not appropriate for review. We refuse to let confessions of error exclusively govern the disposition of cases, acting only after our examination of the record.^[2] We have remanded for reconsideration in light of a confession of error. In Young v. United States, 315 U.S. 257 (1942), however, we declined to remand but instead incorporated into our holding the theory advanced by the Solicitor General in support of the petitioner. Obviously a remand does not bind the courts to the parties' view as to what the law is.

"The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed." Id., at 258-259.

As we stated in Sibron v. New York, 392 U.S. 40, 58:

"It is the uniform practice of this Court to conduct its own examination of the record in all cases where the Federal Government or a State confesses that a conviction has been erroneously obtained."

[p206] That is the practice in civil cases also. Cates v. Haderlein, 342 U.S. 804.

Moreover, once a case is properly here, our disposition does not necessarily follow the recommendations or concessions of the parties. Utah Comm'n v. El Paso Gas Co., 395 U.S. 464, 468-469. In that case, the appellant changed its view of the merits after the case reached us and, like the appellee, thought the appeal should be dismissed. An amicus, however, presented contrary views. We concluded that the decree of the District Court, after our prior remand, did not comply with our order. Consensus of the parties does not, in other words, control our decisionmaking process.^[3]

The Court, to be sure, approves that part of the District Court's opinion which holds that the Pennsylvania confession-of-judgment scheme cannot constitutionally be applied to the class of Pennsylvania residents who earn less than $10,000 annually and who enter into nonmortgage credit transactions, unless prior to judgment it is shown that they voluntarily and knowingly executed such instruments purporting to waive trial and appeal. On the other hand, the Court now affirms without discussion the refusals of the District Court (1) to extend similar class relief to confessed debtors who either enter into mortgage transactions and who earn more than $10,000 yearly, and (2) to declare the statutes facially unconstitutional. 314 F. Supp. 1091, 1102-1103, 1112 (1970).

[p207] It is anomalous that an appellee by confessing error can defeat an appeal. In the instant case we have not been handicapped by the appellees' refusal to oppose the judgment below. Finance companies intervened in the District Court. We have been fully informed by them and by amici of the many facets of this controversy. We should therefore discuss the merits and reach all issues tendered.

Notes

1. The absence of a cross-appeal means only that the appellate court will not upset any portion of the lower court's judgment not challenged by the appeal. As stated by Mr. Justice Cardozo in Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191-192:

   "Without a cross-appeal, an appellee may 'urge in support of a decree any matter appearing in the record although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.' United States v. American Railway Express Co., 265 U.S. 425, 435. What he may not do in the absence of a cross-appeal is to 'attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below.' Ibid. The rule is inveterate and certain... Findings may be revised at the instance of an appellant, if they are against the weight of evidence, where the case is one in equity. This does not mean that they are subject to like revision in behalf of appellees, at all events in circumstances where a revision of the findings carries with it as an incident a revision of the judgment. There is no need at this time to fix the limits of the rule more sharply. 'Where each party appeals each may assign error, but where only one party appeals the other is bound by the decree in the court below, and he cannot assign error in the appellate court, nor can he be heard if the proceedings in the appeal are correct, except in support of the decree from which the appeal of the other party is taken.'"

2. Mayberry v. Pennsylvania, 382 U.S. 286 (1965); Nicholson v. Boles, 375 U.S. 25 (1963). See R. Stern & E. Gressman, Supreme Court Practice 224-225 (4th ed. 1969).
3. Cf. California Welfare Rights Organization v. Superior Court of Alameda County, 5 Cal. 3d 730, 488 P. 2d 953 (1971), where a state official against whom an adverse judgment had been obtained took no appeal; but the judgment was challenged in California by an "aggrieved" organization which had been denied intervention in the lower court and which appealed both from the denial of intervention and from the judgment on the merits. The California Supreme Court reversed on the merits.