The appeal, involving the issue whether a Connecticut statutory
requirement that tenants wishing to appeal from an eviction
judgment must post a bond offends the Due Process or Equal
Protection Cause if applied to foreclose appellate review for
indigent tenants, is dismissed, as the record is ambiguous
regarding the underlying reason appellants were denied an
opportunity to appeal the eviction judgment.
5 Conn.Cir. 282, 250 A.2d 527, dismissed.
Page 399 U. S. 511
We noted probable jurisdiction in this case to decide whether §
52-542 of the Connecticut General Statutes [Footnote 1
] requiring a bond for the protection of his
landlord from a tenant who wished to appeal from a judgment in a
summary eviction proceeding offends either the Due Process or Equal
Protection Clause of the Fourteenth Amendment if applied to
foreclose appellate review for those too poor to post the bond, 394
U.S. 957 (1969). Because of an ambiguity in the record concerning
the underlying reason these appellants were denied an opportunity
to appeal the trial court's judgment ordering that they be evicted,
we now conclude that this appeal should be dismissed, DeBacker
v. Brainard, 396 U. S. 28
(1969); Rescue Army v. Municipal Court, 331 U.
(1947). After unsuccessfully litigating in the
trial court a summary eviction proceeding begun by their landlords,
Page 399 U. S. 512
moved in the trial court for a waiver of the bond requirement so
that they might appeal. The trial court, apparently of the view
that it had the power to waive the statutory bond requirement in an
appropriate case, denied appellants' motion on a finding that "this
appeal is being taken for the purpose of delay." App. 23.
Appellants sought review of the trial court's denial of their
motion in the Connecticut Circuit Court, and that court denied
review and dismissed appellants' appeal. It is unclear from that
court's opinion, however, whether it thought the bond requirement
of § 5542 left no room for a waiver, [Footnote 2
] or instead based its refusal to hear
appellants' appeal in part on the trial court's finding -- cited in
the Circuit Court's opinion [Footnote 3
] -- that the appeal
Page 399 U. S. 513
before it was taken only for purpose of delay. 5 Conn.Cir. 282,
250 A.2d 527 (1968). Appellants' petition to the Supreme Court of
Connecticut to certify the case for review was declined.
In these circumstances, we deem it inappropriate for this Court
to decide the constitutional issue tendered by appellants.
MR. JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
At the time of the decisions below in this case, § 52-542
"Bond on appeal; stay of execution. When any appeal is taken by
the defendant in an action of summary process, he shall give a
sufficient bond with surety to the adverse party, to answer for all
rents that may accrue or, where no lease had existed, for the
reasonable value for such use and occupancy, during the pendency of
such appeal, or which may be due at the time of its final disposal,
and execution shall be stayed for five days from the date judgment
has been rendered, but any Sunday or legal holiday intervening
shall be excluded in computing such five days. No appeal shall be
taken except within said period, and if an appeal is taken within
said period execution shall be stayed until the final determination
of the cause, unless it appears to the judge who tried the case
that the appeal was taken for the purpose of delay, and if
execution has not been stayed, as hereinbefore provided, execution
may then issue, except as otherwise provided in sections 52-543 to
This version of § 52-542 has been repealed and a revision
substituted effective as of October 1, 1969, see
Conn.Pub.Acts No. 296 (1969).
The opinion states in one place that "[a] sufficient bond with
surety is essential to a valid appeal." 5 Conn.Cir. 282, 285, 250
A.2d 527, 529 (1968). The court also said that
"[w]ant of bond with surety, where bond with surety is by
statute a prerequisite of review, furnishes a sufficient ground of
dismissal of the appeal."
at 288, 250 A.2d at 531. At oral argument here,
however, the State of Connecticut, appearing as amicus
contended that the statutory bond requirement could,
in an appropriate case, be waived. The opinion of the Circuit Court
did not expressly pass on this issue, which it appears was not
settled under Connecticut law at the time of its decision. A
subsequent decision of a Connecticut circuit court suggests that
the bond requirement is an absolute and necessary condition for an
appeal, but it too did not consider the waiver contention made by
the State before this Court, see Housing Authority v.
5 Conn.Cir. 350, 252 A.2d 465 (1968). Moreover, this
decision did not consider the effect of the 1969 amendment to §
52-542, see n
The opinion states in another place:
"On January 19, 1968, the trial court held a special hearing on
the defendants' application for waiver of security on appeal. The
court found that no rent had been paid since May 1, 1967, nor had
the defendants offered to pay any part of the rent due; that the
record contained 'dilatory tactics, and [was] loaded with defenses
interposed to delay and obstruct the summary process action,' and
that the 'appeal is being taken for the purpose of delay.'
Accordingly, the court denied the application for waiver of
security on appeal."
5 Conn.Cir. at 284, 250 A.2d at 529.
The same Circuit Court, in later granting the landlord's motion
for an order terminating a stay of execution of the eviction order,
expressly affirmed the trial court's findings, saying:
"We have before us the entire file in the case. The record and
briefs comprise some 140 typewritten pages. Upon a review of the
whole matter, we are satisfied that [the trial judge] was justified
in concluding, as he did when he denied the defendants' application
for a waiver of security on appeal, 'that this appeal is being
taken for the purpose of delay.'"
5 Conn.Cir. at 290, 250 A.2d at 532.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL joins,
This was a summary procedure brought by a landlord [Footnote 2/1
] to obtain possession from his
tenants for nonpayment of rent. The trial court found for the
landlord, and the tenants appealed.
Connecticut law requires one taking an appeal in such an action
to post a bond with surety. The tenants showed they were
financially unable to post the bond, and claimed that to require a
bond with surety to obtain an appeal would, under those
circumstances, be a denial of equal
Page 399 U. S. 514
protection. The trial court refused to waive the requirement for
a bond with surety, saying that "the appeal is being taken for the
purpose of delay."
The Circuit Court affirmed. The Appellate Division ordered the
termination of a stay of execution. 5 Conn.Cir. 282, 250 A.2d 527.
The Supreme Court denied certification.
I would reverse this judgment. A rich tenant, whatever his
motives for appeal, would obtain appellate review. These tenants,
because of their poverty, obtain none. I can imagine no clearer
violation of the requirement of equal protection unless it be
Griffin v. Illinois, 351 U. S. 12
Whether the case is criminal or civil, wealth, like race, is a
suspect criterion for classification of those who have rights and
those who do not. Harper v. Virginia Bd. of Elections,
383 U. S. 663
Lee v. Habib,
137 U.S.App.D.C. 403, 424 F.2d 891.
Page 399 U. S. 515
What the merits of the tenants' appeal may be is not for us to
say. But the appeal raised questions not easily answered. The terms
of the lease stated that it could be terminated by not less than 30
days' notice, while apparently no more than five days' notice was
given. A housing authority that is federally assisted has the right
by 42 U.S.C. § 1404a (1964 ed., Supp. V)
"to maintain an action or proceeding to recover possession of
any housing accommodations operated by it where such action is
authorized by the statute or regulations under which such housing
accommodations are administered."
There is not a word in appellee's argument that indicates that
the federal regulations permit eviction on five days' notice where
the lease requires 30 days' notice.
The case has been argued as if appellants are "cheapskates"
seeking to get something for nothing. T hat simply is not true, for
the record shows:
"Mrs. Faulkner: Your Honor, may I urge upon you that, if you
grant our motion to have the defendants deposit the rent in court,
the landlord will not be hurt any further by delay in this
proceedings. He will be protected because the monthly rent will be
deposited. If he is successful on appeal, he will be able to get
"The Court: Do you suggest, if that should be the conclusion,
that the clerk could issue an execution upon failure to pay?"
"Mrs. Faulkner: Yes."
"The Court: In other words, you will be willing to stipulate on
behalf of your clients that, if the rent were not paid, that the
clerk would, may be empowered forthwith to issue an execution?"
"Mrs. Faulkner: Yes, Your Honor."
"The Court: That appeal to you all right?"
"Mr. Philbin: Frankly it doesn't. During this period of time, it
could take a considerable period of
Page 399 U. S. 516
time, even if the tenant pays the fund into the clerk's office,
they are not available to the plaintiff, and we are still, as a
practical matter, losing the rents during that period of time.
Eventually if we prevail and get this money, this would be an
extended period of time."
The State of Connecticut represents that its summary eviction
statute is based on an English Act of 1737, 11 Geo. 2, c.19, and,
with all respect, the decisions below reflect an 18th century
lawyer's approach to the task of protecting a landed interest.
Every appeal, of course, entails delay, and, in a sense, all
appeals are antithetical to the spirit of summary eviction. But we
live today under a different regime. Unlike 1737, appellate courts
are no longer closed to the poor. Eviction laws emphasize speed for
the benefit of landlords. Equal protection often necessitates an
opportunity for the poor, as well as the affluent, to be heard. I
disagree with the Court that the issue is not squarely presented in
this case. [Footnote 2/3
] I would
reverse this judgment.
Appellee operates a federally assisted low-rent housing project
under the authority of Title V of the Housing Act of 1959, 73 Stat.
679, 42 U.S.C. § 1401 et seq.
(1964 ed. and Supp. V) and
Conn.Gen.Stat.Rev. § 8-38 et seq.
In that case, Judge J. Skelly Wright, speaking for the Court of
"The limits of a state's duty affirmatively to equalize a
defendant's ability to participate meaningfully in the judicial
process are only now being sketched out in the cases. The picture
is far from complete, but recent cases dealing with costs in
divorce cases and transcripts on appeal from proceedings involving
determination of parental rights, coupled with the expansive
readings being given to in forma pauperis
suggest that the trend seems to be toward more, not less,
affirmative action. Thus, while most of the cases extending equal
protection to the judicial process have involved criminal
proceedings, the constitutional mandate that there be no invidious
discrimination between indigent and rich litigants is being
recognized in civil cases as well."
"The equal protection clause applies to both civil and criminal
cases; the Constitution protects life, liberty and property. It is
the importance of the right to the individual, not the technical
distinction between civil and criminal, which should be of
importance to a court in deciding what procedures are
constitutionally required in each case. Often a poor litigant will
have more at stake in a civil case than in a criminal case."
137 U.S.App.D.C. at 412-413, 424 F.2d at 900-901.
On review, the Connecticut court stated that a "sufficient bond
with surety is essential to a valid appeal." But, in the setting of
the opinion as I read it, that meant no more than a description of
the normal manner of effecting an appeal. And the Connecticut
court's insistence that the tenants did not lack "the economic
power to make themselves heard in a court of law" refers to the
fact that they were ably represented by attorneys for the New Haven
Legal Assistance Association, Inc., a factor only emphasizing their
indigency. Not a word in the opinions of the Connecticut courts
suggests that the statutory bond requirement could not be