In Boddie v. Connecticut,2167 Justice Harlan carried a majority of the Court with him in using a due process analysis to evaluate the constitutionality of a state’s filing fees in divorce actions that a group of welfare assistance recipients attacked as preventing them from obtaining divorces. The Court found that, when the state monopolized the avenues to a pacific settlement of a dispute over a fundamental matter such as marriage— only the state could terminate the marital status—then it denied due process by inflexibly imposing fees that kept some persons from using that avenue. Justice Harlan’s opinion averred that a facially neutral law or policy that did in fact deprive an individual of a protected right would be held invalid even though as a general proposition its enforcement served a legitimate governmental interest. The opinion concluded with a cautioning observation that the case was not to be taken as establishing a general right to access to the courts.
The Boddie opinion left unsettled whether a litigant’s interest in judicial access to effect a pacific settlement of some dispute was an interest entitled to some measure of constitutional protection as a value of independent worth or whether a litigant must be seeking to resolve a matter involving a fundamental interest in the only forum in which any resolution was possible. Subsequent decisions established that the latter answer was the choice of the Court. In United States v. Kras,2168 the Court held that the imposition of filing fees that blocked the access of an indigent to a discharge of his debts in bankruptcy denied the indigent neither due process nor equal protection. The marital relationship in Boddie was a fundamental interest, the Court said, and upon its dissolution depended associational interests of great importance; however, an interest in the elimination of the burden of debt and in obtaining a new start in life, while important, did not rise to the same constitutional level as marriage. Moreover, a debtor’s access to relief in bankruptcy had not been monopolized by the government to the same degree as dissolution of a marriage; one may, “in theory, and often in actuality,” manage to resolve the issue of his debts by some other means, such as negotiation. While the alternatives in many cases, such as Kras, seem barely likely of successful pursuit, the Court seemed to be suggesting that absolute preclusion was a necessary element before a right of access could be considered.2169
Subsequently, on the initial appeal papers and without hearing oral argument, the Court summarily upheld the application to indigents of filing fees that in effect precluded them from appealing decisions of a state administrative agency reducing or terminating public assistance.2170
The continuing vitality of Griffin v. Illinois, however, is seen in M.L.B. v. S.L.J.,2171 where the Court considered whether a state seeking to terminate the parental rights of an indigent must pay for the preparation of the transcript required for pursuing an appeal. Unlike in Boddie, the state, Mississippi, had afforded the plaintiff a trial on the merits, and thus the “monopolization” of the avenues of relief alleged in Boddie was not at issue. As in Boddie, however, the Court focused on the substantive due process implications of the state’s limiting “[c]hoices about marriage, family life, and the upbringing of children,”2172 while also referencing cases establishing a right of equal access to criminal appellate review. Noting that even a petty offender had a right to have the state pay for the transcript needed for an effective appeal,2173 and that the forced dissolution of parental rights was “more substantial than mere loss of money,”2174 the Court ordered Mississippi to provide the plaintiff the court records necessary to pursue her appeal.
- 401 U.S. 371 (1971). [Back to text]
- 409 U.S. 434 (1973). [Back to text]
- 409 U.S. at 443–46. The equal protection argument was rejected by using the traditional standard of review, bankruptcy legislation being placed in the area of economics and social welfare, and the use of fees to create a self-sustaining bankruptcy system being considered to be a rational basis. Dissenting, Justice Stewart argued that Boddie required a different result, denied that absolute preclusion of alternatives was necessary, and would have evaluated the importance of an interest asserted rather than providing that it need be fundamental. Id. at 451. Justice Marshall’s dissent was premised on an asserted constitutional right to be heard in court, a constitutional right of access regardless of the interest involved. Id. at 458. Justices Douglas and Brennan concurred in Justice Stewart’s dissent, as indeed did Justice Marshall. [Back to text]
- Ortwein v. Schwab, 410 U.S. 656 (1973). The division was the same 5-to-4 that prevailed in Kras. See also Lindsey v. Normet, 405 U.S. 56 (1972). But cases involving the Boddie principle do continue to arise. Little v. Streater, 452 U.S. 1 (1981) (in paternity suit that State required complainant to initiate, indigent defendant entitled to have State pay for essential blood grouping test); Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (recognizing general right of indigent parent to appointed counsel when state seeks to terminate parental status, but using balancing test to determine that right was not present in this case). [Back to text]
- 519 U.S. 102 (1996). [Back to text]
- 519 U.S. at 106. See Boddie v. Connecticut, 401 U.S. 371 (1971). [Back to text]
- Mayer v. Chicago, 404 U.S. 189 (1971). [Back to text]
- 519 U.S. at 121 (quoting Santosky v. Kramer, 455 U.S. 745, 756 (1982)). [Back to text]