Petitioners, former employees of an "adult" movie theater and
bookstore, were convicted of distributing obscene materials in
violation of a Georgia statute and received fines and jail
sentences, but were placed on probation on the condition that they
make monthly installment payments toward the satisfaction of the
fines. When petitioners failed to make the payments, a probation
revocation hearing was held. Petitioners, who had by that time left
their jobs in the "adult" establishments, offered evidence of their
inability to make the payments and stated that they had expected
their former employer to pay the fines for them. When petitioners
were unable to make up their arrearages, the Georgia trial court
denied their motion to modify the probation conditions and ordered
petitioners to serve the remaining portions of their jail
sentences. After the Georgia Court of Appeals affirmed, this Court
granted a writ of certiorari to decide whether it is constitutional
under the Equal Protection Clause to imprison a probationer solely
because of his inability to make installment payments on fines.
Held: This is an inappropriate case in which to decide
the equal protection question. Since the record suggests that
petitioners may be in their present predicament because of their
counsel's divided loyalties, a possible due process violation is
apparent, and the case is remanded for further findings concerning
such possible violation. Pp.
450 U. S.
264-274.
(a) The transcript of the revocation hearing shows that
petitioners understood that their former employer would provide
legal assistance if they should face legal trouble as a result of
their employment, would pay any fines, and would post any necessary
bonds. Petitioners have been represented since the time of their
arrest by a single lawyer, who was paid by the employer and who
posted bonds in this case and paid other fines when each of the
petitioners was arrested a second time. If petitioners' counsel was
serving the employer's interest in obtaining an equal protection
ruling that offenders cannot be jailed for failure to pay fines
that are beyond their means, which could only occur if petitioners
received fines beyond their own means and then risked jail by
failing to pay, this conflict in goals may have influenced the
trial court's decisions to impose large fines and to revoke the
probations, rather than modify the conditions thereof. Pp.
450 U. S.
264-268.
Page 450 U. S. 262
(b) If counsel was influenced in his basic strategic decisions
by the employer's interest, petitioners' due process right to
representation free from conflicts of interest was not respected at
the revocation hearing, or at earlier stages of the proceedings.
The possibility of a conflict of interest was sufficiently apparent
at the time of the revocation hearing to impose upon the court a
duty to inquire further. If, on remand, the court finds that an
actual conflict of interest existed at the time of the probation
revocation or earlier, and that there was no valid waiver of the
right to independent counsel, it must hold a new revocation hearing
untainted by a legal representative serving conflicting interests.
Pp
450 U. S.
268-274.
150 Ga.App. 582,
258 S.E.2d
171, vacated and remanded.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. STEVENS,
J., filed a concurring opinion,
post, p.
450 U. S. 274.
BRENNAN, J., filed an opinion concurring in part and dissenting in
part, in which MARSHALL, J., joined,
post, p.
450 U. S. 274.
STEWART, J., filed an opinion concurring in part and dissenting in
part,
post, p.
450 U. S. 275.
WHITE, J., filed a dissenting opinion,
post, p.
450 U. S.
275.
JUSTICE POWELL delivered the opinion of the Court.
Petitioners in this case are three persons who were convicted of
distributing obscene materials and sentenced to periods of
probation on the condition that they make regular installment
payments toward the satisfaction of substantial fines. Because they
failed to make these payments, their probations were revoked by the
Georgia court, and they are now claiming that these revocations
discriminated against them on the basis of wealth in violation of
the Equal Protection Clause of the Fourteenth Amendment. Since the
record in this case
Page 450 U. S. 263
suggests that petitioners may be in their present predicament
because of the divided loyalties of their counsel, we have
concluded that it is inappropriate to reach the merits of this
difficult equal protection issue. Instead, we remand this case for
further findings concerning a possible due process violation.
I
Petitioners Tante and Allen were working, respectively, as the
projectionist and ticket taker at the Plaza Theatre in Atlanta when
they were arrested and charged with two counts of distributing
obscene materials in violation of Ga.Code § 2 2101 (1978). About
four months later, petitioner Wood was arrested and charged with
two violations of the same provision after he sold two magazines to
a policeman while working at the Plaza Adult Bookstore. There is no
evidence that any of these employees owned an interest in the
businesses they served or had any managerial responsibilities.
Tante and Allen were tried together and found guilty on both
counts by a jury. A separate jury convicted Wood on both counts.
All three were then sentenced by the same judge. Tante and Allen
each received a fine of $5,000 and two concurrent jail sentences of
12 months, but they were allowed immediate probation. Wood received
two $5,000 fines and two consecutive jail sentences of 12 months;
he also was placed on probation immediately.
After these convictions were affirmed on appeal, [
Footnote 1] the trial court issued orders
specifying the terms of probation. These required all three
petitioners to make installment payments on their fines of $500 per
month during the course of their periods of probation. After three
months had elapsed, none of the petitioners had made any of the
required payments, and the county probation officers therefore
moved for revocation
Page 450 U. S. 264
of their probations. At a hearing on January 26, 1979,
petitioners admitted that they had failed to make the installment
payments, but offered convincing evidence of their inability to
make these payments out of their own earnings. [
Footnote 2] They also stated that they had
expected their employer [
Footnote
3] to pay the fines for them. Faced with petitioners' complete
failure to satisfy a condition of their probations, the court
decided to revoke these probations unless petitioners made up their
arrearages within five days. Unable to do so, petitioners moved for
a modification of the conditions of their probations. This motion
was denied, and the court ordered petitioners to serve the
remaining portions of their jail sentences.
II
After this revocation decision was affirmed by the Georgia Court
of Appeals, [
Footnote 4] we
granted a writ of certiorari to decide a question presented by the
facts just summarized: whether it is constitutional under the Equal
Protection Clause to imprison a probationer solely because of his
inability to make installment payments on fines. 446 U.S. 951. On
closer inspection, however, the record reveals other facts that
make this an inappropriate case in which to decide the
constitutional question. Where, as here, a possible due process
violation is
Page 450 U. S. 265
apparent on the particular facts of a case, we are empowered to
consider the due process issue. [
Footnote 5] Moreover, for prudential reason, it is
preferable for us to remand for consideration of this issue, rather
than decide a novel constitutional question that may be avoided.
Cf. Spector Motor Service, Inc. v. McLaughlin,
323 U. S. 101,
323 U. S. 105
(1944) (broad constitutional
Page 450 U. S. 266
questions should be avoided where a case may be decided on
narrower, statutory grounds on remand).
Petitioners have been represented since the time of their
arrests by a single lawyer. The testimony of each petitioner at the
probation revocation hearing makes it clear that none of them ever
paid -- or was expected to pay -- the lawyer for his service.
[
Footnote 6] They understood
that this legal assistance was provided to them by their employer.
[
Footnote 7] In fact, the
transcript of this hearing reveals that legal representation was
only one aspect of the assistance that was promised to petitioners
if they should face legal trouble as a result of their employment.
They were told that their employer also would pay any fines and
post any necessary bonds, [
Footnote
8] and these promises were kept for the most part. In this case
itself, as petitioners' lawyer stated at oral argument, bonds were
posted with funds he provided. [
Footnote 9] In addition, when each of the petitioners was
arrested a second time, he paid the resulting fines. [
Footnote 10] All aspects of this
arrangement were revealed to the court at the revocation
hearing.
Page 450 U. S. 267
For some reason, however, the employer declined to provide money
to pay the fines in the cases presently under review. [
Footnote 11] Since it was this
decision by the employer that placed petitioners in their present
predicament, and since their counsel has acted as the agent of the
employer and has been paid by the employer, the risk of conflict of
interest in this situation is evident. The fact that the employer
chose to refuse payment of these fines, even as it [
Footnote 12] paid other fines and paid the
sums necessary to keep petitioners free on bond in this case,
suggests the possibility that it was seeking -- in its own interest
-- a resolution of the equal protection claim raised here. If
offenders cannot be jailed for failure to pay fines that are beyond
their own means, then this operator of "adult" establishments may
escape the burden of paying the fines imposed on its employees when
they are arrested for conducting its business. To obtain such a
ruling, however, it was necessary for petitioners to receive fines
that were beyond their own means, and then risk jail by failing to
pay.
Although we cannot be sure that the employer and petitioners'
attorney were seeking to create a test case, there is a clear
possibility of conflict of interest on these facts. Indications of
this apparent conflict of interest may be found at various stages
of the proceedings below. It was conceded at oral argument here
that petitioners raised no protest about the
Page 450 U. S. 268
size of the fines imposed at the time of sentencing. During the
three months leading up to the probation revocation hearing, they
failed to pay even small amounts toward their fines to indicate
their good faith. In fact, throughout this period, petitioners
apparently remained under the impression that -- as promised -- the
fines would be paid by the employer. Even at the revocation hearing
itself, petitioners attempted to prove their inability to make the
required payments, but failed to make a motion for a modification
of those requirements. That motion was not made until one day
before petitioners were due to be incarcerated. [
Footnote 13] A review of these facts
demonstrates that, if petitioners' counsel was serving the
employer's interest in setting a precedent, this conflict in goals
may well have influenced the decision of the trial court to impose
such large fines, as well as the decision to revoke petitioners'
probations, rather than to modify the conditions. [
Footnote 14]
III
Courts and commentators have recognized the inherent dangers
that arise when a criminal defendant is represented by a
Page 450 U. S. 269
lawyer hired and paid by a third party, particularly when the
third party is the operator of the alleged criminal enterprise.
[
Footnote 15] One risk is
that the lawyer will prevent his client from obtaining leniency by
preventing the client from offering testimony against his former
employer or from taking other actions contrary to the employer's
interest. [
Footnote 16]
Another kind of risk is
Page 450 U. S. 270
present where, as here, the party paying the fees may have had a
long-range interest in establishing a legal precedent, and could do
so only if the interests of the defendants themselves were
sacrifice. [
Footnote 17] As
suggested above, the factual setting of this case requires the
Court to take note of the potential unfairness resulting from this
particular third-party fee arrangement. Petitioners were mere
employees, performing the most routine duties, yet they received
heavy fines on the apparent assumption that their employer would
pay them. They now face prison terms solely because of the
employer's failure to pay the fines, having been represented
throughout
Page 450 U. S. 271
by a lawyer hired by that employer. The potential for injustice
in this situation is sufficiently serious to require us to consider
whether petitioners have been deprived of federal rights under the
Due Process Clause of the Fourteenth Amendment.
We have held that due process protections apply to parole and
probation revocations.
Gagnon v. Scarpelli, 411 U.
S. 778 (1973);
Morrissey v. Brewer,
408 U. S. 471
(1972). In
Scarpelli, we adopted a standard for deciding
when due process requires appointment of counsel for indigent
offenders during revocation hearings. Recognizing that the
"need for counsel at revocation hearings derives, not from the
invariable attributes of those hearings, but rather from the
peculiarities of particular cases,"
411 U.S. at
411 U. S. 789,
we left it to the state tribunals to identify, on a case-by-case
basis, the situations in which fundamental fairness requires
appointed counsel.
In the present case, petitioners appeared at the hearing with
retained counsel, as was their right under Ga.Code § 27-2713
(1978). But, significantly, petitioners would have had a right to
appointed counsel if they had made the showing of indigence on
which they now rely.
Scarpelli established a presumption
in favor of appointment of counsel in cases where the probation or
parole violation is a matter of record but
"there are substantial reasons which justified or mitigated the
violation and make revocation inappropriate, and . . . the reasons
are complex or otherwise difficult to develop or present."
411 U.S. at
411 U. S. 790.
This case, where there were assurances that the fines would be paid
by an unnamed employer, falls into that category.
Where a constitutional right to counsel exists, our Sixth
Amendment cases hold that there is a correlative right to
representation that is free from conflicts of interest.
E.g.,
Cuyler v. Sullivan, 446 U. S. 335
(1980);
Holloway v. Arkansas, 435 U.
S. 475,
435 U. S. 481
(1978). Here, petitioners were represented by their employer's
lawyer, who may not have pursued
Page 450 U. S. 272
their interests single-mindedly. It was his duty, originally at
sentencing and later at the revocation hearing, to seek to convince
the court to be lenient. On the record before us, we cannot be sure
whether counsel was influenced in his basic strategic decisions by
the interests of the employer who hired him. If this was the case,
the due process rights of petitioners were not respected at the
revocation hearing, or at earlier stages of the proceedings
below.
It is, however, difficult for this Court to determine whether an
actual conflict of interest was present, especially without the
benefit of briefing and argument on this issue. Nevertheless, the
record does demonstrate that the possibility of a conflict of
interest was sufficiently apparent at the time of the revocation
hearing to impose upon the court a duty to inquire further.
[
Footnote 18] The facts
outlined above were all made known at that time. The court must
have known that it had imposed disproportionately large fines --
penalties that almost certainly were increased because of an
assumption that the employer would pay the fines. [
Footnote 19] The court did know that
petitioners' counsel had been provided by that employer and was
pressing a constitutional attack rather than making the arguments
for leniency that might well have resulted in substantial
reductions in, or deferrals of, the fines. These facts demonstrate
convincingly the duty of the court to recognize the possibility of
a disqualifying conflict of interest. Any doubt as to whether the
court should have been aware of the problem is dispelled
Page 450 U. S. 273
by the fact that the State raised the conflict problem
explicitly and requested that the court look into it. [
Footnote 20]
For these reasons, we base our decision in this case on due
process grounds. The judgment below is vacated and the case
remanded with instructions that it be returned to the State Court
of Fulton County. That court should hold a hearing to determine
whether the conflict of interest that this record strongly suggests
actually existed at the time of,the probation revocation or
earlier. If the court finds that an actual conflict of interest
existed at that time, and that there
Page 450 U. S. 274
was no valid waiver of the right to independent counsel, it must
hold a new revocation hearing that is untainted by a legal
representative serving conflicting interests. [
Footnote 21]
Vacated and remanded.
[
Footnote 1]
Allen v. State, 144 Ga.App. 233,
240 S.E.2d
754 (1977),
cert. denied, 439 U.S. 899 (1978);
Wood v. State, 144 Ga.App. 236,
240 S.E.2d
743 (1977),
cert. denied, 439 U.S. 899 (1978).
[
Footnote 2]
According to their testimony, all of the petitioners had by that
time left their jobs in the "adult" establishments. Allen testified
that her only income was $250 per month from unemployment
insurance.
See Transcript of Revocation Hearing, State
Court of Fulton County, Criminal Division (Jan. 26, 1979)
(hereinafter Tr.), at 7. Tante testified that his income as a
correction officer was $540 per month.
Id. at 35. He had
been unemployed for eight months before obtaining that job.
Id. at 390. Wood testified that he was trying to support a
family and earning $120 per week working at a truck and trailer
rental yard.
Id. at 53-54.
[
Footnote 3]
The record suggests that the Plaza Theatre, which employed Tante
and Allen, and the Plaza Adult Bookstore, which employed Wood, were
under common ownership.
[
Footnote 4]
150 Ga.App. 682, 268 . E.2d 171 (1979).
[
Footnote 5]
JUSTICE WHITE's dissenting opinion argues that this Court lacks
jurisdiction to remand this case on due process grounds because, in
his view, the conflict of interest issue has not been properly
presented. To be sure, it was not raised on appeal below or
included as a question in the petition for certiorari. These facts
merely emphasize, however, why it is appropriate for us to consider
the issue. The party who argued the appeal and prepared the
petition for certiorari was the lawyer on whom the conflict of
interest charge focused. It is unlikely that he would concede that
he had continued improperly to act as counsel. And certainly the
State's Solicitor, whose duty it was to support the judgment below,
could not be expected to do more than call the problem to the
attention of the courts, as he did. Petitioners were low-level
employees, and now appear to be indigent.
See n 2,
supra. We cannot assume
that they, on their own initiative, were capable of protecting
their interests.
As indicated,
post at
450 U. S.
277-278, n. 1;
see also n 20,
infra, it is abundantly clear
that the possibility of a conflict of interest was pointed out to
the trial court at the revocation hearing. The State's Solicitor
raised the issue repeatedly. The State's Brief in Opposition 4, n.
2, again identified the apparent conflict.
See n 20,
infra. Accordingly,
counsel for petitioners cannot be heard to complain of any lack of
notice.
In this context, it is appropriate to treat the due process
issue as one "raised" below, and proceed to consider it here.
See Boynton v. Virginia, 364 U. S. 454,
364 U. S. 457
(1960) (deciding a case on a statutory issue raised below but not
raised in this Court). Even if one considers that the conflict of
interest question was not technically raised below, there is ample
support for a remand required in the interests of justice.
See 28 U.S.C. § 2106 (authorizing this Court to "require
such further proceedings to be had as may be just under the
circumstances"); R. Stern & E. Gressman, Supreme Court Practice
§ 6.27, p. 460 (5th ed.1978) (in review of state cases, "the Court
doubtless limits its power to notice plain error to those
situations where it feels the error is so serious as to constitute
a fundamental unfairness in the proceedings").
See also Vachon
v. New Hampshire, 414 U. S. 478
(1974).
[
Footnote 6]
See Tr. 26 (Allen);
id. at 43 (Tante);
id. at 63 (Wood).
[
Footnote 7]
E.g., id. at 42-43 (Tante).
[
Footnote 8]
As petitioners' lawyer himself put it:
"I want to bring this before the Solicitor and the Court, that I
believe Mrs. Allen told me and she told the Probation Officer that
she -- they were told, given information that their fine would be
paid. The bond would be paid and a lawyer would be representing
them."
Id. at 14.
See also id. at 63 (Wood). During
oral argument in this Court, the lawyer conceded that he had been
paid by the employer during petitioners' trials. Tr. of Oral Arg.
15-16. He indicated that these payments stopped when petitioners
went on probation and left their jobs with this employer, but he
has never dispelled the implication that he has an ongoing
employment arrangement with the employer.
[
Footnote 9]
Id. at 8. The fact that the employer provided appeal
bonds for petitioners after the probation revocation hearing
suggests that his involvement with the case did not end when
petitioners quit work in these "adult" establishments.
[
Footnote 10]
Tr. 12, 41, 667. These payments took place while the instant
cases were still on direct appeal.
[
Footnote 11]
Counsel suggested at oral argument that the reason for this
decision not to pay the fines was a change of ownership. It might
also be explained by the fact that petitioners were no longer
working for the "adult" establishments. Neither of these facts
suggests, however, that the employer had lost interest in the case,
since appeal bonds were provided for petitioners. Indeed, the
providing of these appeal bonds suggests that the decision not to
pay the fines themselves was a conscious one. And the fact that
petitioners had left their jobs may have allowed the employer to
pursue his goals without any concern about losing petitioners'
services in the event of a probation revocation.
[
Footnote 12]
The record does not make clear whether the employer was an
individual or a corporation, or indeed even identify the
employer.
[
Footnote 13]
Petitioners' counsel states that he did attempt to alert the
court to the problem of petitioners' inability to pay by letter,
soon after their probations began. But no motion was made.
[
Footnote 14]
There is also a danger that petitioners' lawyer was influenced
in his strategic decisions by other improper considerations. Rather
than relying solely on the equal protection claims, he could have
sought leniency at the probation hearing by arguing that the stiff
sentences imposed on petitioners should be modified in light of the
employer's unanticipated refusal to pay the fines. But this would
have required him to dwell on the apparent bad faith of his own
employer, and to emphasize the possibly improper arrangement by
which he came to represent petitioners. Thus, it is not correct, as
JUSTICE WHITE argues,
post at
450 U. S. 281,
that the "conflict of interests . . . only emerges by assuming that
the employer . . . set out to construct a constitutional test
case." Even if the employer's motives were unrelated to its
interest in establishing a precedent, its refusal to pay the fines
put the attorney in a position of conflicting obligations.
[
Footnote 15]
As one court has stated:
"A conflict of interest inheres in every such situation. . . .
It is inherently wrong to represent both the employer and the
employee if the employee's interest may, and the public interest
will, be advanced by the employee's disclosure of his employer's
criminal conduct. For the same reasons, it is also inherently wrong
for an attorney who represents only the employee to accept a
promise to pay from one whose criminal liability may turn on the
employee's testimony."
In re Abrams, 56 N.J. 271, 276,
266
A.2d 275, 278 (1970).
See also In re Investigation Before
April 1975 Grand Jury, 174 U.S.App.D.C. 268, 274, n. 11, 531
F.2d 600, 606, n. 11 (1976);
Pirillo v. Takiff, 462 Pa.
511,
341 A.2d
896 (1975),
appeal dism'd and cert. denied, 423 U.S.
1083 (1976); ABA Model Code of Professional Responsibility DR
5-107(A),(b) (1980); ABA Standards for Criminal Justice 4-3.5(c)
(2d ed.1980); Lowenthal, Joint Representation in Criminal Cases: A
Critical Appraisal, 64 Va.L.Rev. 939, 960-961 (1978).
[
Footnote 16]
There are indications in the transcript of the revocation
hearing that the State had been unable to learn the name of
petitioner' employer, and that petitioners were concealing its
identity. At one point, the Solicitor stated: "Mrs. Allen, is it
not true each time you were arrested that we sought to get your
cooperation to find out who is operating these places?" Tr. 28.
Later, during the Solicitor's cross-examination of Tante, the
following colloquy took place:
"Q Mr. Tante, who did you call when you said you called and told
them to get someone else out there?"
"A I called the secretary of the union first."
"Q And what about the company? Did you call them?"
"A And the company, I gave notice to -- whatever his name was.
Mister -- what was his name ?"
"MR. ZELL [petitioners' attorney] I'm sorry, I wasn't
listening."
"A The manager of the theatre, Mister -- I think it was you I
told first. I said, 'I want to get out of the theatre as soon as
possible. In fact, I'd like to leave now.' And I said, 'As far as
I'm concerned, I'm out, and that's it.'"
"Q You called Mr. Zell to tell him to get someone else out there
to operate the theatre?"
"A No, sir. I called my business secretary at the union, told
them I wanted out; to find me another job. If they wanted to put a
man in there, send them out. And they informed me to get on out of
there, that they would not send another union man out there."
"Q But you also talked to someone with the company, you
said?"
"A At the time, I did not, sir. I told Mister -- Mrs. Allen, I
said -- "
"MR. ZELL: Hold it. Hold it, Mr. Tante. It's now ten-thirty,
Your Honor. We're getting into areas that -- the only question here
is violation or failure to pay as directed."
Id. at 45-46.
[
Footnote 17]
The ABA Model Code of Professional Responsibility EC 5-23 (1980)
states:
"A person or organization that pays or furnishes lawyers to
represent others possesses a potential power to exert strong
pressures against the independent judgment of those lawyers. Some
employers may be interested in furthering their own economic,
political, or social goals without regard to the professional
responsibility of the lawyer to his individual client.
Others
may be far more concerned with establishment or extension of legal
principles than in the immediate protection of the rights of the
lawyer's individual client. . . . Since a lawyer must always
be free to exercise his professional judgment without regard to the
interests or motives of a third person, the lawyer who is employed
by one to represent another must constantly guard against erosion
of his professional freedom."
(Emphasis added.)
[
Footnote 18]
JUSTICE WHITE's dissent states that we have gone beyond the
recent decision in
Cuyler v. Sullivan, 446 U.
S. 335 (1980). Yet nothing in that case rules out the
raising of a conflict of interest problem that is apparent in the
record. Moreover,
Sullivan mandates a reversal when the
trial court has failed to make an inquiry even though it "knows or
reasonably should know that a particular conflict exists."
Id. at
446 U. S.
347.
[
Footnote 19]
Both counsel agreed that, in light of the size of the fines
imposed on petitioners -- relatively minor and impecunious
participants in the criminal enterprises -- the judge must have
assumed that the employer would pay. Tr. of Oral Arg. 13, 40.
[
Footnote 20]
At one point during the discussion of Allen's case, the
Solicitor, Mr. Rhodes, put it this way:
"MR. RHODES: What I'm trying to show is, Your Honor, that she in
fact -- that Mr. Zell [the attorney] was hired by someone else. She
did not make the choice. That they sent Mr. Zell down here to
represent her. And she may have acquiesced in it, but that she did
not employ Mr. Zell to represent her."
"THE COURT: All right. How is that relevant to this issue?"
"MR. RHODES: To what I say,
there's a conflict of interest
in this case."
"Mr. Zell is representing her employer, and there's two
different interests there."
"They had promised this woman that they would pay her fine and
they would take care of all these expenses.
There's a
conflict."
"Mr. Zell's, as I said, his first duty is to the persons that
pay him. And that's what he's doing. He's trying to take care of
them."
Tr. 227 (emphasis added).
See also id. at 115.
As noted in
n 5,
supra, the State raised this problem here as an argument
against a grant of certiorari. The State's Brief in Opposition 4,
n. 2, stated:
"During the probation revocation hearing, there were several
discussions between the Court, the Petitioner's [
sic]
lawyer and the Solicitor concerning the fact that the Petitioner's
[
sic] lawyer also represents the Plaza Theater, the
theater in which Petitioners Allen and Tante were employed. The
argument of the Solicitor was that the employer had agreed to pay
the fines, and now was attempting to get out of paying the fines by
arguing that there was no agreement, and that Petitioners were now
indigents. . . ."
[
Footnote 21]
Because we are presented here only with the question of
petitioners' probation revocations, we do not order more sweeping
relief, such as vacating petitioners' sentences or reversing their
convictions. Such actions do, however, remain within the discretion
of the trial court upon appropriate motion.
There also is the possibility that this relief may be available
in habeas corpus proceedings, if petitioners can show an actual
conflict of interest during the trials or at the time of
sentencing.
JUSTICE STEVENS, concurring.
Although I join the Court's opinion, my view that the potential
conflict of interest disclosed by the record requires that the
judgment be vacated does not rest on the hypothesis that the
petitioners' employer may have contrived a test case.
See
ante at
450 U. S.
267-268,
450 U. S.
269-270. It rests instead on the likelihood that the
state trial court would have imposed a significantly different
sentence if it had not been led to believe that the employer would
pay the fines.
Independent counsel for these individuals surely would not have
permitted the trial judge to impose fines that were manifestly
beyond their ability to pay without obtaining an enforceable
commitment from the employer. But a lawyer faithfully representing
the interest of the employer surely would not make any such
commitment gratuitously. The net result of the conflicting
interests represented by one lawyer is a manifestly unfair prison
sentence imposed on employees of the person who is probably the
principal wrongdoer.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in
part and dissenting in part.
While I agree with the Court that "there is a clear possibility
of conflict of interest" shown on this record,
ante at
450 U. S.
267,
Page 450 U. S. 275
and that the Court has the option to remand on this issue, I
would nevertheless finally dispose of this case. That can be done,
as JUSTICE WHITE concludes, by reversing the judgment of the
Georgia Court of Appeals, for the reason that
Tate v.
Short, 401 U. S. 395
(1971), compels that conclusion. I would, however, reverse the
conviction for distributing obscene materials in violation of
Ga.Code § 26-2101 (1978) under the view I have frequently
expressed, and to which I adhere, that such an obscenity statute is
facially unconstitutional.
See Paris Adult Theatre I v.
Slaton, 413 U. S. 49,
413 U. S. 73,
413 U. S. 113
(1973) (BRENNAN, J., dissenting);
McKinney v. Alabama,
424 U. S. 669,
424 U. S. 678
(1976) (separate opinion of BRENNAN, J.).
JUSTICE STEWART, concurring in part and dissenting in part.
In my view, the Court is correct in remanding because of the
"clear possibility of conflict of interest" shown on the record in
this case. I would, however, go further and reverse the convictions
themselves, which were for violations of an obscenity statute. I
believe that that statute, Ga.Code § 26-2101 (1978), is facially
unconstitutional.
JUSTICE WHITE, dissenting.
The Court's disposition of this case is twice flawed: first,
there is no jurisdiction to vacate the judgment on the federal a
constitutional ground upon which the Court rests; second, the
record does not sustain the factual inferences required to support
the Court's judgment.
I
The petition for certiorari presented a single federal question:
does the Equal Protection Clause of the Fourteenth Amendment permit
a State to revoke an indigent's probation because he has failed to
make regular payments toward the satisfaction of a fine? This issue
was properly presented to and ruled upon by the Georgia courts. No
other federal constitutional
Page 450 U. S. 276
issue was presented there or brought here. The Court, however,
disposes of this case on another ground, but a ground that also
involves a constitutional issue: the possibly divided loyalties of
petitioners' counsel may have deprived petitioners of due process
and their constitutional right to counsel. Thus, we are to avoid
one constitutional issue in favor of another, which was not raised
by petitioners either here or below. I do not believe that this
Court has jurisdiction even to reach this question, nor do I see
why we should prefer one constitutional issue to another, even if
we had the jurisdiction.
The Court,
ante at
450 U. S. 273,
n. 20, suggests that the conflict of interest issue was presented
here by respondent, the State of Georgia. But the State merely
argued that petitioners' attorney was also the attorney for
petitioners' employer who had agreed to pay the fine and who was
now seeking to avoid payment by arguing petitioners' indigency.
Neither here nor in the trial court has the State ever suggested
that petitioners were deprived of due process or raised any other
federal constitutional issue. The State has surely not confessed
error or given any other indication that it is seeking anything but
an affirmance of the decision below -- hardly an appropriate
disposition if the State is suggesting that petitioners were denied
their constitutional right to counsel. Moreover, nowhere in the
passage of the response cited by the Court are the terms "conflict
of interest" used, nor is there even a clear suggestion made that
counsel was acting other than in the interests of petitioners in
arguing that an indigent's probation cannot be revoked for failure
to pay a fine.
However, the State's argument here is to be characterized, this
case comes to us on writ of certiorari to a state court. Our
jurisdiction therefore, arises under 28 U.S.C. § 1257(3), and is
limited here to federal rights and privileges that have been
"specially set up or claimed," and upon which there has been a
final decision by the highest state court in which a
Page 450 U. S. 277
decision could be had. The right to counsel claim was never
raised in the state court, nor did the State court ever render a
decision on the issue: there is, thus, a jurisdictional bar to our
reaching the issue.
Moore v. Illinois, 408 U.
S. 786,
408 U. S. 799
(1972);
Hill v. California, 401 U.
S. 797,
401 U. S. 805
(1971);
Cardinal v. Louisiana, 394 U.
S. 437 (1969), and cases cited there.
It is as clear as could be that no federal constitutional claim
of any kind was made in the state courts with respect to a conflict
of interest and the adequacy of petitioners' counsel. At the
revocation hearing, petitioners testified that they were without
funds to pay the fines, and their counsel urged that to incarcerate
them would violate the Equal Protection Clause of the Fourteenth
Amendment. On cross-examination, petitioners indicated that they
had been assured by their employer that the employer would pay
employee fines if they were convicted in cases such as this. The
State's attorney then asserted several times that there was a
conflict of interest because petitioners' counsel also represented
petitioners' corporate employer and was being paid by that concern
to represent petitioners. [
Footnote
2/1] But, far from suggesting that the
Page 450 U. S. 278
alleged conflict was a ground of relief for petitioners, the
State suggested that petitioners and their counsel had misled the
court into thinking that the employer would pay the fines, and that
the employer's undertaking should be enforced by sending
petitioners "out to the jail for a while," [
Footnote 2/2] rather than permit the employer to renege
and free petitions on equal protection grounds. This would convince
the employer to pay, because it would not want other employees to
know that they would not be taken care of in the event trouble
arose. [
Footnote 2/3]
Page 450 U. S. 279
In the course of these arguments, the State never mentioned the
Federal Constitution.
Petitioners' attorney, in turn, responded that, although there
had been an advance arrangement between petitioners and their
employer that fines would be paid by the latter, the employer had
not paid, and the only issue was whether petitioners should go to
jail when they were without funds themselves to pay the fines. He
urged,hat jailing them would violate the Equal Protection Clause.
[
Footnote 2/4] He also suggested
that, if the asserted conflict of interest raised an ethical
problem in the mind of the State's attorney, a complaint should be
filed with the State Bar. [
Footnote
2/5]
The judge, apparently rejecting the equal protection claim,
revoked petitioners' probation, although petitioners have remained
free on bond pending appeal. The sole issue in the Georgia Court of
Appeals was whether petitioners had been denied the equal
protection of the laws. That claim was rejected, the judgment of
revocation was affirmed, and the Georgia Supreme Court denied
further review. The equal protection issue, as I have said, is the
only federal constitutional issue that has been presented here.
The Court asserts that "it is appropriate to treat the due
process issue as one
raised' below, and proceed to consider it
here." Ante at 450 U. S. 265,
n. 5. However, the Court fails to cite any passage from the record
in which the alleged conflict of interest was presented to the
state courts as a problem of constitutional dimension. The Court
relies on 28 U.S.C. § 2106,
Page 450 U. S. 280
but that section does not purport to expand the statutory limits
on the Court's jurisdiction; rather, it relates only to the
disposition of the case once jurisdiction exists. What JUSTICE
REHNQUIST wrote in
Vachon v. New Hampshire, 414 U.
S. 478,
414 U. S. 482
(1974) (dissenting opinion), is equally applicable here:
"A litigant seeking to preserve a constitutional claim for
review in this Court must not only make clear to the lower courts
the nature of his claim, but he must also make it clear that the
claim is constitutionally grounded.
Bailey v. Anderson,
326 U. S.
203 (1945)."
Petitioners have done neither; nor has respondent done it for
them.
The Court apparently believes that, under
Cuyler v.
Sullivan, 446 U. S. 335
(1980), the possibility of a conflict of interest of constitutional
dimensions should have prompted further inquiry by the trial judge.
But
Cuyler v. Sullivan did not purport to give this Court
jurisdiction over a claim otherwise beyond its reach.
Cuyler held only that, if a trial court "reasonably should
know that a particular conflict exists,"
id. at
446 U. S. 347,
then a failure to initiate an inquiry may constitute a Sixth
Amendment violation. If this is the case here, then petitioners
remain free to seek collateral relief in the lower courts.
[
Footnote 2/6]
Page 450 U. S. 281
A majority of the Court, however, proceeds on the basis that it
has jurisdiction to address the due process/adequacy of counsel
issue. Accordingly, I proceed on that assumption.
II
As I see it, the Court's disposition of the case rests upon
critical factual assumptions that are not supported by the record.
Certainly the mere fact that petitioners' counsel was paid by their
employer does not, in itself, constitute a conflict of interest of
constitutional dimension. [
Footnote
2/7] Indeed, one would expect that in the normal course of
things the interests of petitioners and of their employer would
have corresponded throughout the proceedings. It would have been
just as much in the employer's as in the employees' interest to
have had the employees adjudged innocent. Similarly, assuming that
the employer had promised to pay whatever fines might be levied
against the employees, it was in the employer's interest, just as
it was in their interest, to have these fines set at the lowest
possible amount. The conflict of interests, therefore, only emerges
by assuming that the employer, the owner of an adult bookstore and
a movie theater, set out to construct a constitutional test case,
and the petitioners' counsel represented the employer in this
regard. Not even a decision to pursue a test case, however, would,
in itself, create a conflict of interest. One must assume, further,
that it was for the sake of this interest that the employer decided
not to pay the fines, and for the sake of this interest of the
employer
Page 450 U. S. 282
that petitioners' attorney did not object to the size of the
fines or move in timely fashion for a modification of the
conditions of probation.
I recognize that the Court's conclusion relies only upon the
"possibility" of this scenario, but I find these assumptions
implausible, and would require a much stronger showing than this
record reveals before I would speculate on the likelihood of such a
motive of the employer and the knowing cooperation of counsel to
this end, let alone dispose of the case on that basis. [
Footnote 2/8] First, since the only
submission of petitioners was that they should not go to jail for
failure to pay their fines, even if the court sustained their
position, their liability on the fine would remain -- as would that
of the employer if it had an enforceable obligation to pay. It is,
therefore, difficult to find any interest that the employer might
have in litigating a test case on this issue through the Georgia
courts and to this Court. Second, the record suggests two much more
plausible explanations of the employer's failure to pay the fines,
neither of which implies a conflict of interest: the employer may
have reneged on its promise to pay fines because petitioners were
no longer working for the employer, or it may have reneged because
ownership of the establishments changed
Page 450 U. S. 283
hands. [
Footnote 2/9] The fact
that the employer may have continued to meet some of the expenses,
but did not pay the substantial fines, does not indicate to me that
the employer, manipulated the situation to create a test case; more
likely, the employer reneged on his promise because, given the
change in circumstances of both the employer and the petitioners,
the expense was simply greater than that which the employer was
willing to bear at this point.
If the employer was simply unwilling to pay the fines, then the
arguments advanced by the attorney may very well have been the best
and only arguments available to petitioners. [
Footnote 2/10] Indeed, the employer having failed
to pay, counsel would have been derelict not to press the equal
protection claim on behalf of his indigent clients. Obviously,
success on this ground would have advantaged petitioners; and I
fail to see, as apparently the trial court failed to see, Tr. 15,
28, how petitioners will be constitutionally deprived by assertion
of the equal protection claim. The fact that petitioners did move,
although belatedly, for a modification of the conditions of parole
[
Footnote 2/11] further indicates
that the employer was more interested
Page 450 U. S. 284
in cutting his costs than creating a test case. [
Footnote 2/12] On this record, therefore,
I believe it necessary to reach the substantive question that we
granted certiorari to resolve.
III
Although I think that there are circumstances in which a State
may impose a suitable jail term in lieu of a fine when the
defendant cannot or will not pay the fine, there are constitutional
limits on those circumstances, and the State of Georgia has
exceeded the limits in this case.
In
Williams v. Illinois, 399 U.
S. 235 (1970), Williams, convicted of petty theft,
received the maximum sentence of one year's imprisonment and a $500
fine (plus $5 in court costs). As permitted by Illinois statute,
the judgment provided that, if, when the one-year sentence expired,
Williams did not immediately pay the fine and court costs, he was
to remain in jail a length of time sufficient to satisfy the total
debt, calculated at the rate of $5 per day. We held that
"the Equal Protection Clause of the Fourteenth Amendment
requires that the statutory ceiling placed on imprisonment for any
substantive offense be the same for all defendants irrespective of
their economic status."
Id. at
399 U. S. 244.
Therefore, the Illinois statute, as applied to Williams, who was
too poor to pay the fine, violated the Equal Protection Clause.
Tate v. Short, 401 U. S. 395
(1971), involved an indigent defendant incarcerated for nonpayment
of fines imposed for
Page 450 U. S. 285
violating traffic ordinances. Under Texas law, traffic offenses
were punishable only by fines, not imprisonment. When Tate could
not pay $425 in fines imposed for nine traffic convictions, he was
jailed pursuant to the provisions of another Texas statute and a
municipal ordinance that required him to remain in jail a
sufficient time to satisfy the fines, again calculated at the rate
of $5 per day. We reversed on the authority of
Williams v.
Illinois, saying:
"Since Texas has legislated a 'fines only' policy for traffic
offenses, that statutory ceiling cannot, consistently with the
Equal Protection Clause, limit the punishment to payment of the
fine if one is able to pay it, yet convert the fine into a prison
term for an indigent defendant without the means to pay his
fine."
401 U.S. at
401 U. S. 399.
The Court, however, was careful to repeat what it had said in
Williams: "
The state is not powerless to enforce
judgments against those financially unable to pay a fine,'" and is
free to choose other means to effectuate this end. 401 U.S. at
401 U. S.
399.
In
Williams v. Illinois, supra at
399 U. S. 243,
the Court emphasized that its holding "does not deal with a
judgment of confinement for nonpayment of a fine in the familiar
pattern of alternative sentence of $30 or 30 days." In neither
Williams nor
Tate did it appear that
"jail [was] a rational and necessary trade-off to punish the
individual who possesses no accumulated assets . . . since the
substitute sentence provision, phrased in terms of a judgment
collection statute, [did] not impose a discretionary jail term as
an alternative sentence, but rather equate[d] days in jail with a
fixed sum."
Williams v. Illinois, supra at
399 U. S. 265
(Harlan, J., concurring in result). As both the Court and Justice
Harlan implied, if the Court had confronted a legislative scheme
that imposed alternative sentences, the analysis would have been
different.
Indigency does not insulate those who have violated the criminal
law from any punishment whatsoever. As I see it, if an indigent
cannot pay a fine, even in installments, the
Page 450 U. S. 286
Equal Protection Clause does not bar the State from specifying
other punishment, even a jail term, in lieu of the fine. [
Footnote 2/13] To comply with the Equal
Protection Clause, however, the State must make clear that the
specified jail term in such circumstances is essentially a
substitute for the fine, and serves the same purpose of enforcing
the particular statute that the defendant violated. In both
Williams and
Tate, the State violated this
principle by speaking inconsistently: in each case, the legislature
declared its interest in penalizing a particular offense to be
satisfied by a specified jail term (in
Tate, no jail term
at all) and at the same time subjected the indigent offender to a
greater term of punishment.
The incarceration of the petitioners in this case cannot be
distinguished from that which we found to be unconstitutional in
Williams and
Tate. Here, the State imposed
probated prison terms and fines, but made installment payment of
the fines a condition of probation: had the fines been paid in full
and other conditions of probation satisfied, there would have been
no time in jail at all. Thus, the ends of the State's criminal
justice system did not call for any loss of liberty except that
incident to probation.
Under these circumstances, the State's only interest in
incarcerating these petitioners for not paying their fines was to
impose a loss of liberty that would be as efficacious as the fines
in satisfying the State's interests in enforcing the criminal law
involved. However, no calculation like that was made here. Upon
nonpayment, probation was automatically revoked, and petitioners
were sentenced to their full prison
Page 450 U. S. 287
terms. [
Footnote 2/14] There
was no attempt to provide, in addition to the jail terms for which
they were given probation, a term of imprisonment that would be a
proper substitute for the fines. In fact, even at the conclusion of
their prison terms, petitioners will apparently be liable for the
unpaid fines. This is little more than imprisonment for failure to
pay a fine, without regard to the goals of the criminal justice
system. As in
Williams and
Tate, the State is
speaking inconsistently concerning the necessity of imprisonment to
meet its penal objectives; imprisonment of an indigent under these
circumstances is constitutionally impermissible.
This case falls well within the limits of what we meant to
prohibit when we announced, in
Tate v. Short, supra at
401 U. S. 398,
quoting
Morris v. Schoonfield, 399 U.
S. 508,
399 U. S. 509
(1970), that the
"'Constitution prohibits the State from imposing a fine as a
sentence and then automatically converting it into a jail term
solely because the defendant is indigent.'"
Accordingly, I would reverse the judgment.
[
Footnote 2/1]
The following colloquy, similar to others, took place at one
point in the revocation hearing:
"MR. RHODES: Your Honor, I submit that actually what we have
here is a conflict of interest on Mr. Zell's part. He's
representing the company and he's trying to get out of paying this
money that these people expect that company to pay that money. Mr.
Zell is here purporting to represent her while he legally
represents a company that has promised to pay all these expenses
and fines for these people. And I would ask the Court to look into
that and make a determination of that, and if necessary, see that
these people have Counsel to enforce that agreement between that
company and these people."
"THE COURT: State that again now."
"MR. RHODES: Mr. Zell is here representing Mrs. Allen. Now, Mrs.
Allen contends that that company promised to pay all this so that
she wouldn't have to go through all of this."
"Now they have not done it."
"And I submit that Mr. Zell represents that company. That he is,
his first allegiance is to that company, and not to Mrs.
Allen."
"And that there's a conflict of interest, and that this ought to
be looked into by this Court."
"THE COURT: You wish to respond?"
"MR. ZELL: I don't think it makes any sense, what he's saying,
but I will if the Court wants me to. I don't think I'm required
to."
"THE COURT: I don't know whether there's anything the Court
could look into. What specifically do you want the Court to look
into?"
"MR. RHODES: Mr. Zell is here supposedly representing Mrs.
Allen. He at the same time represents the people who promised to
take care of these things and to pay these fines."
"Now those people are not doing it. And they apparently have
reneged on it at this point. I think, if you sent these people out
to the jail for a while, I think they would pay it, because they
don't want the other employees to know that they are not taking
care of these things when they come up."
Transcript of Revocation Hearing (Tr.) 115. The transcript is an
appendix to the response of respondent. Other discussions appear in
id. at 25-28.
[
Footnote 2/2]
Id. at 15.
[
Footnote 2/3]
The State's position in this regard is clear from its response
to the petition for certiorari:
"In fact, Respondent believes that the Petitioners have no
intention whatsoever in paying these fines, as their testimony
indicates that they are of the opinion that their employers should
have paid these fines. The Petitioners are thus holding the
enforcement of fines as a recognized sentencing tool a hostage
because of their beliefs that others should pay their fines for
them. By arguing at this time that they are indigent, they are
using this as a shield to hide behind their responsibility to pay a
fine, which they earlier agreed to pay by virtue of their silence
which led the sentencing court to conclude that they were able to
pay these fines."
Brief in Opposition 10.
Elsewhere, the State suggested "that they be put out there in
jail and start serving . . . that's the only way really I know, to
enforce this sentence at this point." Tr. 74.
[
Footnote 2/4]
Id. at 120.
[
Footnote 2/5]
Id. at 27:
"I would suggest Mr. Rhodes report this to the State Bar of
Georgia and be glad at a hearing to testify if there is any
impropriety and submit to any questions before the State Bar."
[
Footnote 2/6]
This Court's Rule 34.1(a), the plain error rule, does not
purport to authorize the Court to vacate state court judgments on
the ground of a "possible" due process or other constitutional
violation which the Court,
sua sponte, has discovered in
the record but which was neither raised nor decided in the state
courts. Where an issue has been properly raised and decided in
state litigation but not raised here, Rule 34.1(a) would permit us
to reach that issue though not presented by the parties.
Cf.
Boynton v. Virginia, 364 U. S. 454,
364 U. S. 457
(1960).
In
Vachon v. New Hampshire, 414 U.
S. 478 (1974), the Court relied on our "plain error"
rule to reach an issue not presented in the jurisdictional
statement. However, appellant there had unsuccessfully argued the
issue -- sufficiency of the evidence -- below and the issue had
been addressed by the State Supreme Court. The dissent in
Vachon did not contend that appellant had failed to raise
the issue below; rather, it argued that, although raied, the issue
had not been presented to the State Courts as a "federal
constitutional claim." The majority, evidently, thought that it
had.
[
Footnote 2/7]
Although petitioner' counsel admitted at oral argument that he
had been paid by petitioners' employer at the time of trial, he
indicated that the payment from the employer ended at the time
petitioners were put on probation. Tr. 116.
[
Footnote 2/8]
Petitioners' attorney also said:
"I want the court to know, and Mr. Rhodes to know that I've
attempted, at least was asked, to get the fines paid. And of
course, you can see the result of it."
"I told the three defendants I would represent them to the best
of my ability, and I've explained this to the defendants, and I
would like to make an explanation to the court."
Id. at 68.
Interesting also is the following exchange from the
cross-examination of one of the petitioners:
"Q Did you select Mr. Zell as your attorney?"
"A Yes, sir. I've known him a long time, and I trust him. And
he's the only lawyer I've ever had to have in my life, and yes,
sir, I selected him."
Id. at 42. As far as this record reveals, none of the
petitioners to this date has complained about the legal
representation.
[
Footnote 2/9]
There is no indication in the record that the employer owned
other adult establishments. If, as counsel suggested at oral
argument, ownership has in fact changed hands, then it seems
unlikely that the ex-employer would continue to be interested in
creating and litigating a test case in a matter with which he is no
longer concerned.
[
Footnote 2/10]
I note that petitioners argue in their response that the trial
court was fully aware of their financial situation. Response for
Petitioner 2. This is amply supported by the record. The Court,
therefore, creates an artificial issue when it argues that
counsel's conflicting loyalties may have prevented him from arguing
for leniency in light of the employer's failure to pay the fines.
The point was made repeatedly that these petitioners were indigent,
and could not themselves pay. Petitioners' attorney conceded that a
defendant who has been fined and who himself could pay the fine
could not hide behind the promise of another that the latter would
pay. Tr. 69.
[
Footnote 2/11]
The fact that this motion was made and rejected indicates that a
remand to the trial court to reconsider this issue is not likely to
lead to a different result. It also suggests that the inadequacy of
counsel suggested by the Court amounts to nothing more than his
late filing of this motion, not a failure to ask for leniency.
[
Footnote 2/12]
Even this statement asserts more than the evidence of record
supports: other than the assertions of the State's attorney in a
colloquy with the judge at the revocation hearing, there is no
suggestion in this record that the employer directed this
litigation in any way. The fact that counsel was paid for some
period by the employer does not support an inference that counsel
was representing the interests of the employer, rather than those
of petitioners.
See ABA Model Code of Professional
Responsibility, DR 107(b) (1980).
[
Footnote 2/13]
In imposing an alternative sentence, the State focuses on the
penalty appropriate for the particular offense, and structures two
punishments, each tailored to meet the State's ends in responding
to the offense committed. Such tailoring may consider the financial
situation of the defendant,
Williams v. New York,
337 U. S. 241,
337 U. S.
246-250 (1949), but it does so only in the context of
structuring a penalty appropriate to the offense committed.
[
Footnote 2/14]
As the majority opinion makes clear, the fines were quite heavy,
perhaps in anticipation of payment by the employer. There was no
expectation that these defendants, if they performed well on
probation, would serve any time in jail, let alone a long-term.