On petition for writ of certiorari to the Supreme Court of Alabama.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, dissenting.
I vote to hear this case because I assume that equal protection and due process of law under our Constitution apply to the rich as well as to the poor, to whites as well as to the minorities. 1
In Alabama a certified transcript or sufficient statement of the evidence must be filed within 60 days from the taking of an appeal or from the trial court's ruling on [409 U.S. 937 , 938] a motion for new trial, whichever is later. 2 Petitioner filed his transcript three days beyond the deadline. The Courts of Appeals dismissed his appeal as out of time. Hadley v. State, 47 Ala.App. 738, 259 So.2d 853 ( 1971).
The Supreme Court of the State of Alabama affirmed, with three justices dissenting. Ex parte Hadley. Under the case law of the Supreme Court of Alabama, had petitioner been an indigent, such tardiness would not have prevented appeal. In Leonard v. State, 43 Ala.App. 454, 192 So.2d 461 (1966), the transcript of evidence was filed approximately sixteen (16) days after its due date. The court did not dismiss for tardiness but laid down a new procedure '. . . this court will not honor requests to strike when a lower court . . . has ordered a free transcript. See Rule 48.' Such motion to dismiss was also denied in Brummitt v. State, 44 Ala.App. 78, 203 So.2d 133 (1967), where the court allowed a late filing on a showing of indigency the day after defendant's arrest, although no formal adjudication of indigency was ever made.
The question petitioner Hadley raises here and raised in the Alabama Supreme Court below, is whether by case law, a State can give more time for filing of a transcript [409 U.S. 937 , 939] for a person without funds than for a person of wealth. 3 The exception for indigents was created by Rule 48 of the Supreme Court of Alabama which puts within the court's discretion the power to take appeals in cases where the transcript filing is late but within time for taking an appeal. 4 Such was the case here. The spirit of the Rule is a generous and progressive one. Although not written to create classes of appellants, the courts have added that feature. The class is defined by wealth. We have held that a class based on wealth is inherently suspect. William v. Illinois, 399 U.S. 235 (1970), Tate v. Short, 401 U.S. 395 (1971), Boddie v. Connecticut, 401 U.S. 371 (1971), Harper v. Virginia, 383 U.S. 663 (1966). And when a suspect classification is made in such a manner as to impair a fundamental right, the burden on the State to prove a compelling state interest is a heavy one. While there is no constitutional right to appeal, a State may not grant appellate review in such a way as to discriminate between those appellants based who are wealthy and those who are poor. Griffin v. Illinois, 351 U.S. 12, 18 (1955).
Alabama's law seems to be out of line with that principle. I would therefore grant the petition and put the case down for oral argument.
[ Footnote 1 ] In Johnson v. Committee on Examinations, 407 U.S. 915 , the Court last Term denied a petition for certiorari in a case from Arizona where a white candidate for admission to the Bar claimed discrimination against him as compared with the treatment accorded Black candidates. It seems that the passing grade on Arizona Bar Exam is 70. Petitioner alleged that he got below 70 and was rejected, while these Blacks were admitted whose grades were likewise below 70 and no better than his own. I dissented from the denial of certiorari in that case. Like the present one, it seems to be case of reverse discrimination.
[ Footnote 2 ] Code of Alabama, Title VII 827(4):
[ Footnote 3 ] Petitioner obtained private counsel at trial and paid personally for the transcript, but was without counsel on appeal.
[ Footnote 4 ] Supreme Court of Alabama Rule 48.