402 U.S. 966 (1971), 5048, Meltzer v. C. Buck Lecraw & Co.

Docket Nº:No. 5048.
Citation:402 U.S. 966, 91 S.Ct. 1624, 29 L.Ed.2d 105, 29 L.Ed.2d 107, 29 L.Ed.2d 109, 29 L.Ed.2d 124, 29 L.Ed.2d 128, 29 L.Ed.2d 130
Party Name:Yvette MELTZER and Marcy Stine v. C. BUCK LeCRAW & COMPANY.
Case Date:May 03, 1971
Court:United States Supreme Court

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402 U.S. 954 (1971)

91 S.Ct. 1624, 29 L.Ed.2d 105, 29 L.Ed.2d 107, 29 L.Ed.2d 109, 29 L.Ed.2d 124, 29 L.Ed.2d 128, 29 L.Ed.2d 130

Yvette MELTZER and Marcy Stine



No. 5048.

United States Supreme Court.

May 3, 1971

Facts and opinion, 225 Ga. 91, 166 S.E.2d 88; Frederick v. Schwartz, D.C., 296 F.Supp. 1321; Beverly v. Scotland Urban Enterprises, 255 La. 346, 230 So.2d 837; In Matter of Garland, 1 Cir., 428 F.2d 1185; Sloatman v. Gibbons, 8 Ariz.App. 554, 448 P.2d 124; Id., 104 Ariz. 429, 454 P.2d 574; In re Robinson, 8 Cal.App.3d 783, 87 Cal.Rptr. 678.


Petition for writ of certiorari to the Supreme Court of Georgia.


Mr. Justice BLACK.

On March 2, 1971, this Court decided Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, holding that Connecticut could not consistently with the Due Process and Equal Protection Clauses deny access to its divorce courts to indigents unable to pay relatively small filing and service of process fees. 1 We now have eight other cases pending on appeal or on petition for writ of certiorari in which indigents were denied access to civil courts because of their poverty.

One case, Sloatman v. Gibbons, No. 5067, is distinguishable from Boddie only by the fact that Arizona permits an extension of time for an indigent to pay to statutory fee when filing for a divorce. In re Garland, No. 5971, involves the right of a bankrupt to file a petition for discharge in bankruptcy without payment of the $50 statutory fee. Meltzer v. LeCraw, No. 5048, involves a slightly more subtle form of handicap to the indigent seeking judicial resolution to a dispute. In that case a tenant who fights his eviction by resort to

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the judicial process risks the penalty of a judgment for double the rent due during the litigation if he loses. Two other cases, Frederick v. Schwartz, No. 5050, and Bourbeau v. Lancaster, No. 5054, involve indigents who have lost civil cases--a welfare claim and child guardianship claim--and who cannot afford to pay the fees for docketing an appeal. Beverly v. Scotland Urban Enterprises, Inc., No. 5208, and Lindsey v. Normet, No. 6158, involve indigents who cannot post the penalty bonds required to appeal from adverse judgments in housing eviction cases. And finally, Kaufman v. Carter, No. 6375, [91 S.Ct. 1625] is perhaps the most surprising of all eight cases because in that case an indigent mother was denied court-appointed counsel to defend herself against a state civil suit to declare her an unfit mother and take five of her seven children away from her.

The Court has decided to note probable jurisdiction in No. 6158, Lindsey v. Normet. Review will be denied in five of the other cases--Nos. 5048, 5208, 5054, 5971, and 6375--while the decisions on the two remaining cases are to be vacated and the cases remanded for reconsideration in light of the decision in Boddie. I agree with my Brethren that Lindsey v. Normet should be set for argument, but I cannot understand why that case is singled out for special treatment and why distinctions are made between the other cases. For the reasons set out below I would grant the petitions or note probable jurisdiction in each of the other cases and set them for argument or reverse them outright on the basis of the decision in Boddie.

In my view, the decision in Boddie v. Connecticut can safely rest on only one crucial foundation--that the civil courts of the United States and each of the States belong to the people of this country and that no person can be denied access to those courts, either for a trial or an appeal, because he cannot pay a fee, finance a

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bond, risk a penalty or afford to hire an attorney. Some may sincerely believe that the decision in Boddie was far more limited in scope--that is, applies only to divorce cases. Other people might recognize that this constitutional decision will eventually extend to all civil cases but believe that it can only be enforced slowly step-by-step, so that the country will have time to absorb its full import. But in my judgment Boddie cannot and should not be limited to either its facts or its language, and I believe there can be no doubt that this country can afford to provide court costs and lawyers to Americans who are now barred by their poverty from resort to the law for resolution of their disputes.

The opinion in Boddie attempts to draw two distinctions between divorce and other disputes. The Court there stated that access to the judicial process in divorce matters is the 'exclusive precondition to the adjustment of a fundamental human relationship.' 401 U.S., at 383, 91 S.Ct., at 788. The two elements then that require open access to the courts are that the judicial mechanism be the 'exclusive' means of resolving the dispute and that the dispute involve 'fundamental' subject matter. The first element--the 'exclusiveness' of the judicial process as a remedy--is no limitation at all. The States and the Federal Government hold the ultimate power of enforcement in almost every dispute. Every law student learns in the first semester of law school that property, for instance, is 'valuable' only because the state will enforce the collection of rights that attach to its ownership. Thus, the state holds the ultimate remedy in almost every property dispute. Similarly, the wrong that gives rise to a right of damages in tort exists only because the society's lawmakers have created a standard of care and a duty to abide by that standard. The alternatives to resort to the judicial process in tort cases are negotiation and settlement, abandonment of recovery, private self-

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help, and perhaps insurance. With the exception of insurance, the alternatives are exactly the same as in a divorce case--negotiate a separation agreement, decide to continue the marriage relationship, or violate the law. Likewise, contracts are valuable only because the society will enforce them. Indeed, marriage itself when analyzed in purely legal terms is a contract that cannot be revoked without governmental approval. 2 [91 S.Ct. 1626] Thus, the judicial process is the exclusive means through which almost any dispute can ultimately be resolved short of brute force.

The other distinction between divorce and different kinds of controversies suggested in the Boddie opinion is the degree to which the disputes are regarded as 'fundamental.' The extent to which this requirement limits the holding of Boddie is found in the very facts of that decision--that right to seek a divorce is simply not very 'fundamental' in the hierarchy of disputes. Marriage is one of the cornerstones of our civilized society. Society generally places a...

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