Mr. Justice CLARK, with whom Mr. Justice HARLAN joins, dissenting.
Congress has provided that no indigent appeal may be taken 'if the trial court certifies in writing that it is not taken in good faith,' i.e., is frivolous. 28 U.S.C. § 1915(a), 28 U.S.C.A. § 1915(a). With the opinion today the Court for all practical purposes repeals this statute by placing the burden on the Government to sustain such a certification rather than on the indigent to overturn it. This position is a sub silentio reversal of our previous holding in Farley v. United States, 354 U.S. 521, 523, 77 S.Ct. 1371, 1372, 1 L.Ed.2d 1529 (1957), where we said that 'petitioner has not yet been afforded an adequate opportunity to show the Court of Appeals that his claimed errors are not frivolous * * *.' Accord, Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957). [1] Moreover, the Court goes against a long line of cases holding that the trial judge's certificate of frivolity is entitled to 'great weight'-a rule which the opinion here notes but fails to recognize. If the finding is entitled to 'great weight,' in fact controlling weight in the absence of 'some showing that the certificate is made without warrant * * *,' Wells v. United States, 318 U.S. 257, 259, 63 S.Ct. 582, 584, 87 L.Ed. 746 (1943), how can it be said the Government has the burden of upholding it' The Court seems to say the burden is upon the Government because when it files a motion to dismiss in a nonindigent case it has the burden of showing frivolity. I submit the two are not at all analogous. In the case of paid appeals Congress has not provided for a determination by the trial court of whether the issues warrant further review, and to treat nonpaid appeals like paid appeals is to ignore such a provision in the statute governing indigent appeals.
The Court does not make clear on what grounds it bases its assumption that the Government has the burden of showing frivolity. It professes to act 'within the statutory framework for appeals created by Congress'; but it intimates that it is 'impelled by considerations beyond the corners of 28 U.S.C. § 1915, 28 U.S.C.A. § 1915,' and the touchstone of its opinion is a principle arising from cases based on the Equal Protection Clause of the Fourteenth Amendment. I do not believe, however, that a disparity in the burden of showing frivolity denies equal justice as between paid and nonpaid appeals. They both remain subject to the same peril. Congress has set up a special procedure which subjects every nonpaid appeal to an examination to determine if further briefing and oral argument are necessary. Such an examination in the case of paid appeals is left to the initiative of the court or the Government. This distinction does not give rise to a discrimination of constitutional proportions. As was pointed out in Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943), '(t)he Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. * * * Congress may hit at a particular danger where it is seen, without providing for others which are not so evident or so urgent.' I see no constitutional impediment to asking one who seeks a free ride to show that he is not just a joyrider. Although a government that affords appellate review must pay the cost of meritorious indigent appeals, surely it may protect itself from frivolous ones (which incidentally in numbers overwhelmingly predominate) being 'subsidized and public moneys * * * needlessly spent.' Griffin v. Illinois, 351 U.S. 12, 24, 76 S.Ct. 585, 593, 100 L.Ed. 891 (1956) (concurring opinion).
The Court holds that petitioner is entitled to oral argument in the Court of Appeals on new briefs. An examination of the record shows that the action of the Court of Appeals was on the basis of a complete transcript and extensive briefs filed by counsel. With due deference to the Court's suggestion that these briefs were only preliminary, I find them to be substantially similar in both bulk and substance to the ones filed here on which petitioner asks for a decision on the merits. Upon such presentation the Court of Appeals found itself satisfied that petitioner's conviction was proper. It is true that no oral argument was permitted. However, having come to the conclusion that the case had no merit, the court had to put a stop to the review proceeding. This is true whether the appeal is paid or nonpaid. See United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1946). We adjudicate most of our appeals in the same manner, i.e., by dismissing or affirming on the briefs without argument. Inasmuch as the case had arisen within the procedural confines of appeals in forma pauperis, the Court of Appeals simply denied leave to appeal. It could have granted leave to proceed and then summarily affirmed or dismissed the appeal under Rule 39(a), Fed.Rules Crim.Proc. I see no substantial distinction between the two dispositions.
The Court, however, is remanding the case for further review proceedings because it has concluded that at least two of petitioner's claims are not frivolous and that the Court of Appeals therefore erred in not allowing the review to run its full length. The Court in reaching this conclusion has, in my view, misplaced the burden on the issue of frivolity, but even assuming arguendo that petitioner's contentions are not frivolous, I cannot agree to the fruitless approach the Court has taken.
To be sure, frivolity or some analogous standard delimits those appeals, paid or nonpaid, which can be decided without oral argument. However, it would seem that any error by a Court of Appeals in evaluating frivolity upon such a full presentation as was had below is often not only incorrectable but harmless. Concededly, this Court has of late consistently remanded cases in which a Court of Appeals has mistakenly characterized contentions as frivolous. Experience has shown this tack to be unsatisfactory, and perhaps it is now time to re-evaluate our approach.
This is not to say that we should do a complete turn about and never remand a case for further review. What I am suggesting is that we give substance to the congressional mandate and yet analyze, inter alia, the thoroughness of the review below, the character of the issues raised, the beneficiality of further action by a lower court, and the strength or weakness of the contentions made. Applying such criteria to the present case, I am convinced that to remand this case will only compel the lower court to go through wasteful formalities to the detriment of its consideration of other appeals and put off to another day action by this Court. [2] The Court speaks of long delays, but by remanding it appears to have contributed to the very evil which it seeks to eliminate. I would follow the teaching of Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), and Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941), and decide the merits of petitioner's contentions now. I therefore dissent.
Notes
edit- ↑ Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), is inapposite. There the Court was concerned with the standard governing the allowance of appeals in forma pauperis, not with where rests the burden of showing frivolity in the face of a certification by the trial court.
- ↑ For a case in which a similar warning was sounded, see Lurk v. United States, 366 U.S. 712, 81 S.Ct. 1229, 6 L.Ed.2d 845 (1961) (dissenting opinion). Subsequent events have shown this admonition to be words of wisdom indeed. See 111 U.S.App.D.C. 238, 296 F.2d 360, certiorari granted, 368 U.S. 815, 82 S.Ct. 110, 7 L.Ed.2d 23. (For subsequent decision of this Court see 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671.)
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