Ortwein v. Schwab

• Decision Date: 22 June 1972
• Citation: 262 Or. 375,95 Or.Adv.Sh. 104,498 P.2d 757
• Parties: Raymond N. ORTWEIN and Gwendolyn Faubion, Petitioners, v. Herbert M. SCHWAB et al., Respondents.
• Court: Oregon Supreme Court

Page 757

498 P.2d 757

262 Or. 375

Raymond N. ORTWEIN and Gwendolyn Faubion, Petitioners, v. Herbert M. SCHWAB et al., Respondents.

Supreme Court of Oregon, In Banc.

Submitted on Petition Jan. 31, 1972.

Decided June 22, 1972.

John A. Strait, Portland, and D. Richard Fischer, Eugene, for the petition.

Lee Johnson, Atty. Gen., John W. Osburn, Sol. Gen. and A. J. Laue, Asst. Atty. Gen., Salem, contra.

DENECKE, Justice.

Petitioners have attempted to file a petition in this court for a writ of mandamus, commanding the Court of Appeals to accept, without payment of the $25 filing fee, a petition for review of administrative orders. They request they be permitted to file the petition without payment of the filing fee for this court. Petitioners filed affidavits stating facts indicating indigency and alleging they were unable to pay the filing fee in either court.

Petitioners are welfare recipients and seek judicial review of decisions of the State Welfare Division reducing their welfare payments. ORS 183.480 provides that a person adversely affected by a final administrative order is entitled to judicial review of such order. In cases such as this the review is before the Court of Appeals.

Petitioners contend that the statutes requiring filing fees of these indigents are invalid as they are contrary to the first and fourteenth amendments to the United States Constitution and Art. I, § 10, of the Oregon Constitution. ¹

Petitioners' first amendment contention is grounded upon that part of the amendment prohibiting abridging the right 'to petition the Government for a redress of grievances.'

This phrase of the First Amendment emerged into popularity in Mr. Justice Black's majority opinions in Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar., 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964), and United Mine Workers of America, Dist. 12 v. Illinois State Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967). These decisions held that the rights of workers to associate for the selection of legal counsel was a right protected by the First Amendment, including the right to petition clause.

Based upon the issues in those decisions, later decisions concerning the right of access to the courts without paying filing fees, which do not mention such clause, and our understanding of the historical background of that clause, we are of the opinion that the First Amendment is not relevant to our present inquiry.

Petitioners contend requiring filing fees of indigent petitioners would violate the due process clause of the Fourteenth Amendment. Petitioners rely primarily upon Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), and Frederick v. Schwartz, 402 U.S. 937, 91 S.Ct. 1624, 29 L.Ed.2d 105 (1971).

Boddie v. Connecticut, supra (401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113), was an action by welfare recipients challenging state statutes requiring the payment of court fees and the costs of service of process required in divorce proceedings. The majority held the statutes unconstitutional as applied to appellants. In the opinion, written by Mr. Justice Harlan, the Court concluded that the Due Process Clause was violated. The requirement of filing fees from indigents would deprive the indigents of access to the courts. Mr. Justice Harlan wrote that there were two reasons why this result would violate the Due Process Clause: First, the state court is the only forum that can change the status of marriage; in other types of disputes other means of solving the disputes are available. Second, 'that due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.' 401 U.S. at 377, 91 S.Ct. at 785.

The majority went on to find that the state's interest in requiring filing fees was to prevent frivolous litigation and to help pay the cost of operating the judiciary. It concluded this was not 'a countervailing state interest of overriding significance.'

Mr. Justice Douglas concurred, but based his opinion upon equal protection. Mr. Justice Brennan concurred that the state violated due process; however, he would not limit the ruling to divorce cases. Mr. Justice Brennan also believed the statutes as applied to the appellants violated the Equal Protection Clause. Mr. Justice Black dissented.

In Frederick v. Schwartz, 296 F.Supp. 1321 (D.Conn.1969), welfare recipients attemped to appeal from rulings of the state welfare commissioner to the state circuit court. The filing fee for the circuit court was $7 and the plaintiffs sought to have it waived because of their indigency. The clerk of the court refused. An action was brought in Federal District Court, seeking to hold invalid the statutes requiring the fee. A three-judge court was empaneled. This was prior to the decision of the United States Supreme Court in Boddie v. Connecticut, supra (401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113). The three-judge court held:

'* * * Ordinarily there is no constitutional right to judicial review of administrative action * * *. Where the right has been granted by the legislature it may be conditioned on the payment of a modest filing fee because of the legitimate interest of the state in financial support of the courts and in discouraging frivolous appeals by those able to pay as well as those unable to do so. * * *.' 296 F.Supp. at 1322.

This was the same three-judge panel that previously decied in Boddie v. Connecticut, 286 F.Supp. 968 (D.Conn.1968), that the Connecticut statute requiring a filing fee for divorces was valid as applied to indigents. The court relief upon the Boddie opinion in deciding in Frederick v. Schwartz, supra (296 F.Supp. 1321), that the requirement of a filing fee was valid, even as applied to indigents.

Frederick was appealed. The ruling of the United States Supreme Court was 'Judgment vacated and case remanded for reconsideration in light of this Court's decision in Boddie v. Connecticut (citation).' 402 U.S. at 937, 91 S.Ct. at 1624. Mr. Justice Black wrote an opinion. He stated that while he dissented in Boddie v. Connecticut, supra (401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113), that case established what was now the law and he did not believe the Frederick case was distinguishable.

The three-judge Federal District Court ordered a rehearing of Frederick v. Schwartz and thereafter on September 24, 1971, order the Connecticut circuit court to accept the appeals from the welfare commissioner without requiring the payment of filing fees. ²

The Boddie case is distinguishable. In that case petitioner's marital status could only be changed by a court. The other party's consent would be insufficient and, under the state of the law, no administrative tribunal nor any other institution could change the marital status. In our case, the State Welfare Division can decrease petitioners' welfare benefits. Access to the courts is only sought when the welfare recipient desires that another body review the decision of the Welfare Division.

Frederick v. Schwartz, supra (402 U.S. 937, 91 S.Ct. 1624, 29 L.Ed.2d 105), appears identical to the instant case; however, the action of the United States Supreme Court is ambiguous. If a majority of that Court was of the opinion that the case had been incorrectly decided it could have reversed summarily, which it did not do.

We conclude that the decisions of the United States Supreme Court do not direct what our decision must be. ³

As stated, this is an attempted appeal from an administrative agency. We have held that due process does not require a right of appeal from a trial court to an appellate court in either criminal or civil cases. Gairson v. Gladden, 247 Or. 88, 425 P.2d 761 (1967); Rea v. Rea, 195 Or. 252, 278, 245 P.2d 884, 35 A.L.R.2d 612 (1952). The Unied States Supreme Court has also so held in both criminal and civil cases. National Union of Marine Cooks, and Stewards v. Arnold, 348 U.S. 37, 43, 75 S.Ct. 92, 99 L.Ed. 46 (1954); Dist. of Columbia v. Clawans, 300 U.S. 617, 627, 57 S.Ct. 660, 81 L.Ed. 843 (1937).

We have also stated and held that due process does not demand that there be judicial review of administrative decisions. Inland Nav. Co. v. Chambers, 202 Or. 339, 350, 274 P.2d 104 (1954); White v. State Ind. Acc. Com., 227 Or. 306, 324--325, 362 P.2d 302 (1961). The United States Supreme Court has not been as positive. Kenneth Culp Davis heads one of the sections of his treatise on administrative law, 'Does Due Process Require Opportunity for Judicial Review of Issues of Law?', § 28.18. He answers, 'In the abstract, one might suppose that each part of this question would be answerable on the basis of clear authority. But the fact is that the Supreme Court has managed to leave open nearly all parts of the question.' 4 Davis, Administrative Law Treatise, p. 93 (1958).

The contentions that petitioners wish to have heard by the Court of Appeals are that the Welfare Division's order is not supported by the evidence and is contrary to federal and state law and regulation. We conclude that failure to provide for judicial review of such administrative orders upon such grounds is no violation of the Due Process Clause.

The Oregon Constitution reads, '* * * every man shall have remedy by due course of law for injury done him in his person, property, or reputation.' Art. I, § 10. We also conclude that this provision is not violated by not providing judicial review of the Welfare Division's orders in this case. White v. State Ind. Acc. Com., supra (227 Or. 306, 362 P.2d 302), may have so held.

For the above-stated reasons, we hold that there is no violation of the due process clause or the Oregon Constitution to require the payment of filing fees in order to secure judicial review of the Welfare Division's orders.

Petitioners also contend...