Ter Ter Ter Ter Ter Ter Ter Ter Ter Ter 402 936 402 937 402 939 402 941 402 954 402 964 402 966 29 107 29 109 Meltzer v. Lecraw

Decision Date03 May 1971
Docket NumberNo. 5048,5048
Citation91 S.Ct. 1624
PartiesTER>TER>TER>TER>TER>TER>TER>TER>TER>TER> 402 U.S. 936 402 U.S. 937 402 U.S. 939 402 U.S. 941 402 U.S. 954 402 U.S. 964 402 U.S. 966 29 L.Ed.2d 107 29 L.Ed. 2d 109 MELTZER et al v. C. Buck LECRAW & Co
CourtU.S. Supreme Court

Certiorari denied.

MR. JUSTICE BLACK.

On March 2, 1971, this Court decided Boddie v. Connecticut, 401 U.S. 371, 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. 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 distinguished from Boddie only by the fact that Arizona permits an extension of time for an indigent to pay the 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 & Co., No. 5048, involves a slightly more subtle form of handicap to the indigent seeking judicial resolution of 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, 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 judgments in 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." Supra, at 383. 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 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-help,

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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 society will enforce them. Indeed, marriage itself when analyzed in purely legal terms is a contract that cannot be revoked without governmental approval. 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 -- the 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 high value on marriage and a low value on the right to divorce. And since Boddie held that the right to a divorce was "fundamental," I can only conclude that almost every other kind of legally

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enforceable right is also fundamental to our society. Society generally encourages people to seek recompense when they suffer damages through the fault of others. And I cannot believe that my Brethren would find the rights of a man with both legs cut off by a negligent railroad less "fundamental" than a person's right to seek a divorce. Even the need to be on the welfare rolls or to file for a discharge in bankruptcy seems to me to be more "fundamental" than a person's right to seek a divorce. Society provides welfare to ensure the survival of the unfortunate. And bankruptcy is designed to permit a man to make a new start unhampered by overwhelming debts in hopes of achieving a useful life. For this Court to have first provided for governmental assumption of civil court costs in a divorce case seems to me a most unfortunate point of departure. But since that step has now been taken, I would either overrule Boddie at once or extend the benefits of government-paid costs to other civil litigants whose interests are at least as important to an orderly society.

In my judgment, the crucial foundation on which Boddie rests also forbids denial of an indigent's right of appeal in civil cases merely because he is too poor to pay appeal costs. Once the right to unhampered access to the judicial process has been established, that right is diluted unless the indigent litigant has an opportunity to assert and obtain review of the errors committed at trial. Since Boddie rejected distinctions between the civil and the criminal process in determining the permissibility of restrictions upon access to the courts, we need only apply to civil cases our long line of holdings that indigent criminals cannot because of their indigency be denied an appeal or the right to a state-furnished record on appeal. See Griffin v. Illinois, 351 U.S. 12 (1956); Draper v. Washington, 372 U.S. 487 (1963); Long v. District Court of Iowa, 385 U.S. 192 (1966); Roberts v. LaVallee, 389

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U.S. 40 (1967); Williams v. Oklahoma City, 395 U.S. 458 (1969). See also Douglas v. California, 372 U.S. 353 (1963).

Finally, there cannot be meaningful access to the judicial process until every serious litigant is represented by competent counsel. Cf. Gideon v. Wainwright, 372 U.S. 335 (1963); Douglas v. California, supra. Of course, not every litigant would be entitled to appointed counsel no matter how frivolous his claims might be. See Ellis v. United...

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