The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_1188/91_1188.zd1

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SUPREME COURT OF THE UNITED STATES
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No. 91-1188
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JAMES ROWLAND, FORMER DIRECTOR, CALI-
FORNIA DEPARTMENT OF CORRECTIONS,
 et al., PETITIONERS v. CALIFORNIA
MEN'S COLONY, UNIT II MEN'S
ADVISORY COUNCIL
on writ of certiorari to the united states court
of appeals for the ninth circuit
[January 12, 1993]

  Justice Thomas, with whom Justice Blackmun,
Justice Stevens, and Justice Kennedy join, dissenting.
  The parties agree that the interpretive point of depar-
ture in deciding whether an association is a -person- for
purposes of the in forma pauperis statute, 28 U. S. C.
1915, is the first section of the United States Code.  The
question presented in this case may thus be formulated
as follows: Must the presumption codified in 1 U. S. C.
1-namely, that -[i]n determining the meaning of any
Act of Congress,- the word -person- should be construed
to include an association-be given effect in determining
the meaning of the in forma pauperis statute, or has the
presumption been overcome because the context -indicates
otherwise-?  The answer to that question ultimately turns
on the meaning of the phrase -unless the context indicates
otherwise.-  In my view, the Court's holding rests on an
impermissibly broad reading of that language.  I see no
basis for concluding that an association is not entitled to
in forma pauperis status.
  The Court states that the word -context- in 1 U. S. C.
1 -means the text of the Act of Congress surrounding the
word at issue, or the texts of other related congressional
Acts.-  Ante, at 4-5.  The Court then goes on to say that
the word -indicates- has a broader scope than the word
-context-; that it -imposes less of a burden than, say,
`requires' or `necessitates'-; and that -a contrary `indica-
tion' may raise a specter short of inanity, and with
something less than syllogistic force.-  Ante, at 5, 6.  I
share the Court's understanding of the word -context.-
I do not share the Court's understanding of the word
-indicates,- however, because its gloss on that word
apparently permits (and perhaps even requires) courts to
look beyond the words of a statute, and to consider the
policy judgments on which those words may or may not
be based.  (It certainly enables the Court to do so in this
case.)  I agree that the exception to the rule of construc-
tion codified in 1 U. S. C. 1 is not susceptible of precise
definition, and that determining whether -the context
indicates otherwise- in any given case is necessarily -a
matter of judgment.-  Ante, at 5.  Whatever -unless the
context indicates otherwise- means, however, it cannot
mean -unless there are sound policy reasons for conclud-
ing otherwise.-
                            I
  The in forma pauperis statute authorizes courts to allow
-[1] the commencement, prosecution or defense of any suit,
action or proceeding, civil or criminal, or appeal therein,
without prepayment of fees and costs or security there-
for, by a person who [2] makes affidavit that he is [3]
unable to pay such costs or give security therefor.-  28
U. S. C. 1915(a).  Section 1915(a) thus contemplates that
the -person- who is entitled to the benefits of the provi-
sion will have three characteristics: He will have the
capacity to sue or be sued, to make an affidavit, and to
be unable to pay court costs.  An association clearly has
the capacity to do each of these things, and that, in my
view, should be the end of the matter.
  An artificial entity has the capacity to sue or be sued
in federal court as long as it has that capacity under state
law (and, in some circumstances, even when it does not).
See Fed. Rule Civ. Proc. 17(b).  An artificial entity can
make an affidavit through an agent.  See, e.g., Davidson
v. Jones, Sullivan & Jones, 196 S. W. 571, 572 (Tex. Civ.
App. 1917) (partnership); Sime v. Hunter, 50 Cal. App.
629, 634, 195 P. 935, 937 (1920) (partnership); In re
McGill's Estate, 52 Nev. 35, 44, 280 P. 321, 323 (1929)
(corporation); Payne v. Civil Service Employees Assn., Inc.,
27 Misc. 2d 1006, 1006-1007, 218 N. Y. S. 2d 871, 872
(Sup.) (association), aff'd, 15 A. D. 2d 265, 222 N. Y. S.
2d 725 (1961); Kepl v. Manzanita Corp., 246 Ore. 170,
178, 424 P. 2d 674, 678 (1967) (corporation); Federal Land
Bank of St. Paul v. Anderson, 401 N. W. 2d 709, 712
(N. D. 1987) (corporation).  And an artificial entity, like
any other litigant, can lack the wherewithal to pay costs.
  Permitting artificial entities to proceed in forma paupe-
ris may be unwise, and it may be an inefficient use of the
Government's limited resources, but I see nothing in the
text of the in forma pauperis statute indicating that
Congress has chosen to exclude such entities from the
benefits of that law.  While the -context indicates- that
an artificial entity is not a -person- for purposes of a
statute providing benefits to individuals with disabilities,
the same cannot be said of 28 U. S. C. 1915, which
provides benefits to impecunious litigants-a class encom-
passing both natural and artificial -persons.-

                           II
  The Court's holding rests on the view that 1915 has
four -contextual features,- ante, at 6, indicating that only
a natural person is entitled to in forma pauperis status.
These -features- include a few select words in 1915 and
a number of practical problems that may arise when
artificial entities seek to proceed in forma pauperis.  I do
not believe that 1915 contains any language indicating
that an association is not a -person- for purposes of that
provision, and I do not think it is appropriate to rely upon
what are at bottom policy considerations in deciding
whether -the context indicates otherwise.-  In my view,
none of the -contextual features- discussed by the Court,
either alone or in combination with the others, can
overcome the statutory presumption that an association
is a -person.-
                            A
  The first -contextual feature- identified by the Court is
the portion of the in forma pauperis statute providing that
-[t]he court may request an attorney to represent any
such person unable to employ counsel.-  28 U. S. C.
1915(d).  Because a corporation, partnership, or associa-
tion may appear in federal court only through licensed
counsel, and because the permissive language of 1915(d)
suggests that Congress assumed that there would be many
cases in which the court would not appoint counsel,
Congress, the Court says, -was thinking in terms of
`persons' who could petition courts themselves and appear
pro se, that is, of natural persons only.-  Ante, at 8.
  This does not follow at all.  Congress' use of the word
-may- is entirely consistent with an intent to include
artificial entities among those -persons- entitled to the
benefits of the in forma pauperis statute, and it does not
necessarily rest on an -assumption that litigants proceed-
ing in forma pauperis may represent themselves.-  Ibid.
Section 1915 gives courts discretion both with respect to
granting in forma pauperis status and with respect to
appointing counsel.  When a natural person seeks the
benefits of 1915, a court will often allow that person to
proceed in forma pauperis but refuse to appoint counsel.
Under such circumstances, the person may either obtain
counsel elsewhere or proceed pro se.  When an artificial
person seeks the benefits of 1915, a court might likewise
permit that -person- to proceed in forma pauperis but
refuse to appoint counsel.  Under these circumstances, the
artificial person has fewer options than a natural person:
It can either obtain counsel elsewhere or lose the opportu-
nity to appear in federal court.  That an artificial entity
without funds may in some circumstances be unable to
have its case heard in federal court, however, does not
prove that Congress intended to exclude such an entity
from the benefits of the in forma pauperis statute.  An
artificial entity's inability to proceed pro se bears upon the
extent to which such an entity may benefit from 1915,
but it has no bearing upon whether it may benefit.  And
that, after all, is the question presented in this case.
  The second -contextual feature- on which the Court
focuses is the use of the word -poverty- in 1915(d).
-Poverty,- in the Court's view, is a -human condition-;
artificial entities -may be insolvent, but they are not well
spoken of as `poor.'-  Ante, at 8, 9.
  I am not so sure.  -Poverty- may well be a human
condition in its -primary sense,- ante, at 8, but I doubt
that using the word in connection with an artificial entity
departs in any significant way from settled principles of
English usage.  One certainly need not search long or far
to find examples of the use of -poor- in connection with
nonhuman entities-and, indeed, in connection with the
very entities listed in 1 U. S. C. 1.  No less a figure
than Justice Holmes had occasion to write that the
issuance of stock dividends renders a corporation -no
poorer- than it was before their distribution, Towne v.
Eisner, 245 U. S. 418, 426 (1918), and other judges have
used the word -poor- (or one of its derivatives) in a
similar fashion, see, e.g., Ordinetz v. Springfield Family
Center, Inc., 142 Vt. 466, 468, 457 A. 2d 282, 283 (1983)
(-[A] nonprofit corporation may be . . . wealthy or impov-
erished-); In re Whitley v. Klauber, 51 N. Y. 2d 555, 579,
416 N. E. 2d 569, 581 (1980) (Fuchsberg, J., dissenting)
(-[T]he corporation is no richer or poorer for the transac-
tion-).  More important for our purposes, Congress itself
has used the word -poor- to describe entities other than
natural persons, referring in at least two provisions of the
United States Code to the world's -poorest countries--a
term that is used as a synonym for the least developed
of the so-called -developing- countries.  See 22 U. S. C.
262p-4f(a)(3), 2151d(d)(4).  If Congress has seen fit to
describe a country as -poor,- I see no reason for conclud-
ing that the notion of a -poor- corporation, partnership,
or association ought not to be -imputed to Congress.-
Ante, at 9.
                            B
  The third -contextual feature- is 1915's affidavit
requirement, which, in the Court's view, raises a number
of -difficulties.-  Ante, at 10.  One such -difficulty- is the
-problem of establishing an affiant's authorization-; a court
may have trouble determining whether a member of an
unincorporated association -has any business purporting
to bind it by affidavit.-  Ibid.  Another -difficulty- is that
the affidavit requirement's deterrent function cannot be
served -fully- when the litigant is an artificial entity.
Ibid.  This is because -[n]atural persons can be impris-
oned for perjury, but artificial entities can only be fined,-
ante, at 11, and because the possibility of prosecuting the
entity's perjurious agent is only a -`second-best' solution,-
ante, at 11, n. 7.
  But these are classic policy considerations-the concerns
of a legislature, not a court.  Unlike the majority, I am
perfectly willing to assume that in adding the word
-person- to 1915 Congress took into account the fact that
it might be difficult to determine whether an association's
member has the authority to speak on its behalf, and that
the possibility of a perjury prosecution might not deter
artificial entities sufficiently.  In deciding that -the context
indicates otherwise,- the Court has simply second-guessed
Congress' policy judgments.
  The fourth -contextual feature- identified by the Court
is the difficulty of the -issues raised by applying an
`inability to pay' standard to artificial entities,- ante, at
11, and the difficulty of determining -when to look beyond
the entity to its owners or members in determining ability
to pay,- ante, at 12.  These, too, are policy matters that
Congress should be presumed to have considered when it
inserted the word -person- into 1915.  As with the
difficulties associated with the affidavit requirement, any
difficulties associated with the -inability to pay- test are
relevant to the issue of why Congress might have chosen
to include artificial entities among those -persons- entitled
to in forma pauperis status, but they are not relevant to
the issue of whether Congress has in fact made this
choice.
  Petitioners essentially concede that this argument is
ultimately one of policy when they say that the -test for
indigency- will create -procedural problems- and will have
-practical effects . . . on the administration of justice.-
Brief for Petitioners 17.  Today the Court accepts this
argument, but a unanimous Court rejected a similar
argument only four Terms ago in a case involving another
provision of the in forma pauperis statute.  Neitzke v.
Williams, 490 U. S. 319 (1989), presented the question
whether a complaint that fails to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure is neces-
sarily -frivolous- for purposes of 28 U. S. C. 1915(d).
Rejecting the argument that an affirmative answer to that
question would help to lighten the burden that the in
forma pauperis statute imposes on -efficient judicial
administration,- we stated that -our role in appraising
petitioners' reading of 1915(d) is not to make policy, but
to interpret a statute,- and that the proposed reading
might be appealing -as a broadbrush means of pruning
meritless complaints from the federal docket,- but -as a
matter of statutory construction it is untenable.-  490
U. S., at 326.
  The Court suggests that a reading of 1915 under
which an artificial entity is entitled to in forma pauperis
status would force it to confront -difficult issues of policy
and administration.-  Ante, at 14.  Far from avoiding
policy determinations, however, the Court effectively
engages in policymaking by refusing to credit the legisla-
tive judgments that are implicit in the statutory language.
Any reading of the phrase -unless the context indicates
otherwise- that permits courts to override congressional
policy judgments is in my view too broad.  Congress has
spoken, and we should give effect to its words.

                           III
  Congress has created a rule of statutory construction (an
association is a -person-) and an exception to that rule (an
association is not a -person- if the -context indicates
otherwise-), but the Court has permitted the exception to
devour the rule.  In deciding that an association is not a
-person- for purposes of 28 U. S. C. 1915(a), the Court
effectively reads 1 U. S. C. 1 as if the presumption ran
the other way-as if the statute said that -in determining
the meaning of any Act of Congress, unless the context
indicates otherwise, the word `person' does not include
corporations, partnerships, and associations.-  While it
might make sense as a matter of policy to exclude associa-
tions and other artificial entities from the benefits of the
in forma pauperis statute, I do not believe that Congress
has done so.
  I respectfully dissent.