BODDIE v. CONNECTICUT
Gladys Boddie was a married resident of Connecticut receiving welfare benefits. She filed for a divorce in New Haven County Superior Court. However, Boddie was not given a hearing because she had not paid the filing fee under Section 52-259 of the Connecticut General Statutes. Given her welfare status, she was unable to pay the fee. Her requests for fee waivers were also denied. Boddie and others who were denied divorces under Section 52-259 challenged the fee requirement in the United States District Court for the District of Connecticut. They alleged that the fee requirement violated the Due Process Clause of the Fourteenth Amendment. The District Court upheld the requirement. Boddie appealed to the Supreme Court.
Did Connecticut's fee requirement for divorce filings violate the Due Process Clause of the Fourteenth Amendment?
Legal provision: Due Process
Yes. In an 8-1 decision, the Court reversed the District Court and held the fee requirement unconstitutional. In a majority opinion authored by Justice John M. Harlan, the Court recognized the importance of "access to the courts" for Boddie, as state court was the only method of obtaining a divorce in Connecticut. While the Court acknowledged Connecticut's interest in conserving limited resources and preventing "frivolous litigation," this interest was not a "sufficient countervailing justification." Therefore, Connecticut's refusal to allow Boddie to proceed with her divorce was "a denial of due process" in violation of the Fourteenth Amendment. Justice William O. Douglas concurred in the result. Justice William J. Brennan, Jr. concurred in part.
Argument of Arthur Lafrance
Chief Justice Warren E. Burger: Number 265, Boddie against Connecticut.
Mr. LaFrance we may proceed whenever you're ready.
Mr. Arthur Lafrance: Thank you Mr. Chief Justice, and may it please the Court.
Mr. Padnos closed by saying that when he sought was the opportunity to get into court.
I might begin by saying that that is precisely what the appellant seek in this case.
The appellants initiated this proceeding by bringing a civil rights action in the United States District Court for the District of Connecticut.
They allege in their complaint that they wished, intended to sue their husbands for divorce in the Connecticut Superior Courts, but that is welfare recipients they could not afford to pay the court cost of approximately $60.00 or more.
As a consequence, they had set their divorce papers to the Superior Court for New Haven County, with applications asking that court to waive the filing fees and to arrange service of process.
These papers where all set back by the clerk of that court.
Upon received of these papers, appellants then asked Superior Court Judge Longo and after speaking with him, the State Supreme Court Administrator Justice Carter to reverse the position which had been taken by the Superior Court Clerk Edward Orimits.
They sustained that position and as a consequence, appellants were effectively bard from access to the courts of the State of Connecticut.
They further alleged in their complaint in the District Court that this denied them constitutional rights involving Due Process and equal protection.
The appellee is moved to dismiss their motion with sustain by a -- or granted by a three-judge-panel and this direct appeal was taken to this Court.
The question which is thus presented is has Connecticut by erecting economic barriers to its court denied these appellants the rights to Due Process and equal protection of laws guaranteed to them by the Fourteenth Amendment of the United States Constitution.
If I may turn first to our Due Process contention, we founded upon the right to petition for redress of grievances, a right which is expressed in the First Amendment to the United States Constitution and which is incorporated into the Fourteenth.
The decisions of this Court in NAACP versus Button, United Mine Workers versus The Brotherhood of Railway Engineers and the United Mine Workers -- I'm sorry, the United Mine Workers versus Illinois Bar Association and the Brotherhood of Railway Trainman versus Virginia, all of these cases are squarely precedent for this.
The appellees may attempt to distinguish them on the ground that the litigation contemplated in Button was of a political nature whereas the litigation appellants contemplate is of a personal nature, but that distinction was rejected in the Mine Worker's case; a second distinction maybe that these cases involved the right of assembly rather than the right to petition for redress of grievances, but we submit that the language of these three cases discusses these two rights independently and accords to them equal status.
The right of assembly and the right to petition for redress of grievances indeed in these cases, their would hardly have been any point to assembly at all if it had not been to unable individuals as here to bring suits on their on behalf.
This is a fundamental right.
This Court has said that the right sue and defend in the courts is the alternative of force in an organize society.
It is the right conservative of all other rights and lies at the foundations of orderly Government.
Turning to our equal protection contention, it is clear that the equal protection of the laws can be denied by economic discrimination as surely as racial discrimination.
This Court recognized that in Edwards versus California in 1941 and as reaffirmed it in many decisions sense most recently in McDonald versus Board of Elections.
Perhaps the most significant case here is Griffin versus Illinois where this Court held that appellant remedies could not be denied to a person convicted of crime simply because of its inability to purchase a transcript for appeal.
Appellees brief at great length has attempted to distinguish Griffin from this case.
Appellees have set first that Griffin is a criminal case and that this is a civil case, the present proceeding.
And point of fact, however, this is a distinction which is not recognized by the constitution appears no where in the Equal Protection Clause and was not expressed by this Court in the decision in Griffin versus Illinois.
That decision dealt not with criminal procedure, but with court procedure, and it is court procedure which these appellants seek to pursue.
A second distinction offered in their brief by appellees is that in Griffin, liberty was involved whereas these appellants are at large to go about as they choose.
But in point of fact, the liberty of these appellants is substantially curd by their inability to obtain divorces in the courts of Connecticut and this Court has recognized that liberty consist of more than simply freedom from physical restraint.
A final point which appellees have made in their brief is that Griffin should not govern here because in Griffin, the state was the participating adversary.
It was the state which had put Mr. Griffin in custody whereas the divorce actions contemplated by appellants are private matters between husband and wife.
This however is an elusory distinction.
It is the state which has bard these appellants from its courts.
It is the state which has said to these appellants that they may not settle their marital affairs out of the court.
Thus on the one hand, the state has required these appellants to go in the court and at the same time has told them that they may not do so.
We submit then that the state is fully as much as an adversary in this proceeding at it was in Griffin versus Illinois.
Justice Potter Stewart: Is that the basic difference do you suppose between your case and other civil litigation generally that parties are always afraid to compromise or settle?
Are their quarrels within the form of litigation or not but the divorce matter that is a civil case which can only be decided by a judicial decree and cannot be compromised is that right?
Mr. Arthur Lafrance: That is certainly one distinction Your Honor.
Justice Potter Stewart: -- compromised here, something short of divorce?
Mr. Arthur Lafrance: Pardon?
Justice Potter Stewart: I supposed there could be a settlement here by something short of divorce just this -- like there can be and if somebody suing you for $100,000.00, you settled for short of that?
Mr. Arthur Lafrance: I don't know if any legal proceeding in Connecticut which would extend to these appellants half the divorce for one third or one fourths.
Justice Potter Stewart: Well it could agree to live apart?
Justice Potter Stewart: They could agree to live apart if they were to agree to that which in point a fact most of them have done.
What would happen is that they would be locked into marriages which were meaningless, which was barren.
They would also be cut off from some rather important rights, the right to remarried, the right to appropriate, the right to form new families.
And this Court is said that those rights are rights of considerably significant.
I might also note as we have in our brief that denial of access to divorce for the poor opposes peculiar problems which may not be post for other segments of society because denial of that access aggravates the economic circumstances under which the poor live.
It may also further weakened the family structure patterns which sociologist indicate are prevalent among the poor.
Whether or not that peculiar problem for the poor are cognoscible by this Court, it is at least clear that by Connecticut's law, anybody who is cutoff from divorce is cutoff from remarriage and is cutoff from appropriation with anyone other than her legal spouse.
What we are submitting is that since and in fact these marriages have seized to exist in legal contemplation; that fact ought to be recognized.
Justice Byron R. White: Mr. LaFrance, I gathered the sums involved here are minimum about $45.00 and a maximum about $200.00.Is that right?
Mr. Arthur Lafrance: The sums are accurate.
I would not characterize them as minimum -- minimal nor with my clients.
Justice Byron R. White: -- the facts targeting.
Mr. Arthur Lafrance: Yes.
Justice William J. Brennan: And that $45.00 to a $100.00, that's the amount of money that needs to be put up in order to --
Mr. Arthur Lafrance: A routine divorce of case would cost approximately $60.00 Your Honor.
Justice Byron R. White: $60.00?
Mr. Arthur Lafrance: Yes.
Justice Byron R. White: If you prevail of those cases, how do we contain a decision to just divorce actions?
Mr. Arthur Lafrance: I suppose this --
Justice Byron R. White: You would be involved in take a negligence actions -- any kind of civil actions, contract actions?
Mr. Arthur Lafrance: Let me first say that this Court could draw a distinction between this type of case and a case which involves purely personal private issues, a negligence, suit or contract suit are examples of litigation which does not involved with state in the same fashion that a criminal prosecution does or divorce prosecution -- pardon me, a divorce suit does.
Justice William J. Brennan: How about there has to be proceeding.
Mr. Arthur Lafrance: In Connecticut, a baster the proceeding involves the state rather extensively.
I don't know about other states.
I would not urge this distinction upon the court.
The court of course is free to adapt it.
What I would urge upon the court is simply this that anytime the states, where it be the State of Connecticut or any other state creates a state remedy through its courts.
I submit that that the remedy must be available to the poor and the wealthy alike whether it involved negligence, divorce, bastardy or whatever.
I would note that are some limitations on the reach of reasoning.
The appellees have noted that this reasoning would carry over to dog licenses, road tolls and whatever.
I contend that it is not.
The issue here is whether a constitutional right, the access to the courts maybe deny by economic barriers.
There is no constitutional right to a dog license or I supposed --
Chief Justice Warren E. Burger: On equal protection --
Mr. Arthur Lafrance: To passage through a road toll station.
Justice Byron R. White: That's a right to travel, isn't it?
Mr. Arthur Lafrance: If the right to travel were totally bard by a state by toll stations, then I would submit that the person who he is thus bard has a constitutional claim.
In Thompson versus Shapiro would be as good as citation for that as any, so with Edwards versus California.
But I did not understand that was the argument being made by the appellees.
If there is no constitutional right involved as they clearly is here, then perhaps this Court might distinguish future litigation from present litigation.
Justice William O. Douglas: Where this plaintiff said, the appellants have lawyers?
Mr. Arthur Lafrance: Do they have a lawyer?
Justice William O. Douglas: Do they have lawyers in the divorce action?
Mr. Arthur Lafrance: Yes, they do.
Chief Justice Warren E. Burger: Must they have them?
Mr. Arthur Lafrance: Oh I'm sorry, no.
I do not believe that they must.
Justice William O. Douglas: I'm just wondering extent to which this goal, if you require them to get in without payment of fees, they couldn't get very far without benefits of legal advice.
Is this lead to the appointment of lawyers in civil cases?
Mr. Arthur Lafrance: I submit that it does not.
The right to access to the courts is clearly provided for in the constitution by express provision.
There is no similar provision for appointment of counsel in civil cases or for appointment of expert assistance.
So in constitutional contemplation, there is a distinction between access to the courts and appointment of counsel.
In point of fact also there is a distinction.
Once in court, a litigate has an opportunity to obtain justice given a reasonably compassionate judge and a reasonably good case and affirm amount of intelligence.
We have those in reasonable abundance in the State of Connecticut, but if bard from court, if her papers are simply set back by the clerk of court without any consideration, there's no opportunity to obtain justice at all.
Justice Thurgood Marshall: What about appeal?
Mr. Arthur Lafrance: I'm sorry, I don't understand the question.
Justice Thurgood Marshall: Well assuming that very capable in hard rending courts here have been Connecticut go wrong and the petition I think she was desirable and above divorce and didn't get it, what is she have to pay for her appeal?
Mr. Arthur Lafrance: I would submit that she does not have to pay the court cost incident to an appeal.
Justice Thurgood Marshall: Or printing of briefs or records or any cost?
Mr. Arthur Lafrance: She might have to retain her own counsel if she desired counsel.
Chief Justice Warren E. Burger: If she can't afforded this, she can't --
Mr. Arthur Lafrance: If she cannot afford it -- the -- I supposed one other factor which is worth noting and that is that the prevalence of legal services programs and the availability of legal services attorneys take some of the urgency out of the concern for availability of counsel.
It does not relieve the urgency which is behind the issues raised by appellants in this case.
Chief Justice Warren E. Burger: Is that a factor which could be taken into if this precasten constitutional terms in fact if there is a neighborhood legal services and legal aid?
Either, there is a constitutional right to counsel or there isn't?
Mr. Arthur Lafrance: That is true Your Honor.
Justice William O. Douglas: I was thinking in terms of the equal protection clause if there was a constitution is a very specific as respects equal protection like in Griffin and Illinois to give the -- for the record free?
There's no reference to the right of appeal and the constitution.
Mr. Arthur Lafrance: Well that is correct Your Honor.
In terms of whether the absence of a reference to appeal by the constitution in Griffin case in terms of whether that therefore would require compelling the appointment of counsel in civil cases, I would only respond that the appointment of counsel is a matter which in criminal cases specifically provided for and the absence of reference to civil cases could justify this Court and inferring that the drafters of the constitution did not contemplate appointing counsel in civil cases.
Now, I have somewhat handicap in arguing a case which I'm not bringing, but I do submit that if that cases brought for the appointment of counsel in a civil case, this Court might well be justified in distinguishing this case from the arguments which would be submitted at a later time.
Justice William O. Douglas: Or it might say that the counsel should be appointed or indigence in all civil cases?
Mr. Arthur Lafrance: You might well say that or you might say only an important civil cases, defining that in various ways.
The problem here is not much different from the problem which this Court is cope with for exampling Gideon versus Wainwrigth in determining of whether counsel must be appointed only Felony cases or in misdemeanor cases determining the limit of the appointment requirements of the constitution.
Chief Justice Warren E. Burger: I suppose since -- if we accepted your arguments that the right to a divorce of this absolute nature, it would follow that the right to go into the married state would be at least comfortable statute, would it not?
Mr. Arthur Lafrance: Yes.
Chief Justice Warren E. Burger: What about two people who presented themselves for a $10.00 marriage license, said they didn't have any money but they wanted the license?
Mr. Arthur Lafrance: On this Court's rulings in Loving versus Virginia, Skinner versus Oklahoma, I would say that the state would be required to raise -- I'm sorry waive that filling fee in application for marriage if the applicants establish they could not pay fee and if the state could not show a legitimate basis for imposing the fee.
Now, I say that with the important emphasis that what is involved is a fundamental right in marriage according to this Court's decisions, and I would therefore distinguish this from a dog license --
Justice Byron R. White: Or a hunting license?
Mr. Arthur Lafrance: Or perhaps a hunting license.
Chief Justice Warren E. Burger: Would you think --
Justice Byron R. White: How about a dog house license?
Chief Justice Warren E. Burger: With an automobile license, the question then becomes or rather difficult one of equal protection of the laws.
Presumably, there is no constitution part --
Justice Harry A. Blackmun: I take it you also have the right travel involvement?
Mr. Arthur Lafrance: Yes and --
Justice Byron R. White: And the work?
Mr. Arthur Lafrance: The right to work would then raise the economic considerations which might be to a conclusion that equal protection have been denied the right to travel in itself would be a constitutional consideration and protected by decisions of this Court.
Justice Byron R. White: What provision the constitution do you claim affords the right to have access to the courts?
Mr. Arthur Lafrance: The First Amendment as incorporated into the Fourteenth, the First Amendment providing for a right of assembly and a right to petition the courts for redress the Fourteenth.
Justice Byron R. White: Redress of grievances from about whom, about official action or about private action?
Mr. Arthur Lafrance: As I read this Court's opinions in the Mine Worker's case and in the Brotherhood of Railway Trainman case, the right to petition for redress of grievances involves both private and official grievances.
Justice Byron R. White: But note the Button case?
Mr. Arthur Lafrance: The Button case was primarily focused upon official grievances in the sense that the group there was involved with advancing the political social interest of a minority group which was being impressed -- discriminating against.
Justice William J. Brennan: How about most been agreed by address -- was addressed to govern officials, who practice the policy of segregation that this was addressed to public officials, would it?
Mr. Arthur Lafrance: In Button; that is true but in the Mine Worker's case and the Brotherhood of Railway Trainman, the litigation contemplated was for private gain, for individual benefit.
Justice Byron R. White: You say that the state is constitutional required provide a form or litigating any claim of one private person against another.
It may not say that that like our courts are courts of limited of jurisdiction and to have jurisdiction decides some kind of -- to hear some kind of claims but not others.
There are just some kind things that at lead to the private sector workout the best they can.
Mr. Arthur Lafrance: What I'm saying is that, under our first Due Process argument, I'm saying that the states must afford the opportunity to come in to court and raised a claim.
The state may not provide redress for the claim, but it must at least provide an opportunity to petition for redress.
Under our equal protection argument, I am saying that where the state provides a cause of action or a remedy, it must provide equally.
Now it happens that the State of Connecticut provides for divorce.
Given that, it seems to me that it cannot say to the appellants that they may not come into court and ask for divorce, norm that it may have say to appellants that divorce is available to everybody excepting the poor.
Justice Byron R. White: Well, let's just say the equal protection argument.
Mr. Arthur Lafrance: The two arguments are quite close.
Justice Byron R. White: That's not saying that this is just a burden on a constitutional right unless you can say that the constitutional right I suppose.
Mr. Arthur Lafrance: The significance of the right to petition for redress of grievances in this case comes about because of this Court's decisions of such cases as Shapiro versus Thompson in which the court had said that in order to justify racial discrimination or economic discrimination as legitimate legislative policy, a state must show that there is a compelling necessity for that discrimination.
It may not show simply that there is a rational basis for it, there must a compelling necessity.
We of course submit in our brief that there is no such necessity.
Justice Byron R. White: Well, I understand, but that's preminence on their being a constitutional right to be in burden and you say the constitutional right here is a right to petition for redress of grievances by filling a suit in the court?
Mr. Arthur Lafrance: Yes.
Justice Byron R. White: And concededly not because anybody is agreed to what the state's done to them, but because of their dissatisfaction was to conduct of some other private person?
Mr. Arthur Lafrance: I do not conceive that.
I maintain that the state has taken two entirely different types of action against these appellants: First, the procedural action of barding them from its court by imposing economic barriers; Secondly, the anacidence substantive action of requiring that the appellants go into court in order to settle their marital status.
Justice Byron R. White: Well that's -- that might make sense if they were bringing a suit to a -- how did the suits start out?
The suit started out by our sending divorce papers.
Mr. Arthur Lafrance: Yes, but you didn't -- but didn't start a suit attacking the statutes which might then be a petition for redress of grievances revolving on you from the state?
Justice Byron R. White: I suppose that what we did is tend amount to precisely that because attach to our divorce papers, we asked the state of Connecticut to waive the filling fees and arrange service of process for these papers.
Now, prior to our doing that, there was no ruling in the State of Connecticut which said that the courts lack the power to do so.
Once their ruling became apparent, we then raised the issue by raising the constitutionality of the clerk's action with the Superior Court Judge, Ms.Judge Longo and the Supreme Court Administrator, Justice Carter.
So I suppose that we've done precisely what you have suggested.
Justice Thurgood Marshall: Mr. LaFrance they have service of publication?
Mr. Arthur Lafrance: At Connecticut law provides for that, yes.
Justice Thurgood Marshall: Well under your argument, who paid for that, the state?
Mr. Arthur Lafrance: Yes.
Chief Justice Warren E. Burger: Or waived the publication?
Mr. Arthur Lafrance: Or waived the publication if that were consistent with Due Process requirements or provide for alternative means of service or notice.
Chief Justice Warren E. Burger: What about a state that allows annulments as many states do with your claims with seem to in compass that, the right to dissolve a marriage by annulment which would be a very important right to some people, would it not?
Mr. Arthur Lafrance: Yes, I believe the answer is yes.
Chief Justice Warren E. Burger: That's a -- it's a civil action, is it not?
Mr. Arthur Lafrance: Yes.
Chief Justice Warren E. Burger: I suppose --
Mr. Arthur Lafrance: Quite frankly, I'm not --
Chief Justice Warren E. Burger: Some state I suppose, it's an equitable action, but that would make any difference.
But you -- it can follow that if we agreed you, annulment would --
Mr. Arthur Lafrance: Well, I'm simply not familiar with annulment procedure.
Chief Justice Warren E. Burger: Well, it's termination of the marriage of declaration that a marriage very existed where it is legally thought to exist.
Mr. Arthur Lafrance: Without -- I would assume that my arguments would extend to that as well as to divorce.
With the court's permission, I'd like to reserve two or three minutes for rebuttal if it --
Chief Justice Warren E. Burger: Very well Mr. LaFrance.
Mr. Arthur Lafrance: If you're appropriate, thank you.
Chief Justice Warren E. Burger: Mr. Cannon.
Argument of Raymond J. Cannon
Mr. Raymond J. Cannon: Mr. Chief Justice and may it please the court.
The statute that's under attack in this case, that portion of it, 52-259 excuse me, they shall be paid to the clerks of the Supreme Court or the Superior Court for which civil cost $45.00.
That is the entry fee.
Now the problem in this case is not particularly the court cost.
It's the marrying which cases started at least in Connecticut that client or person goes usually to a lawyer if he has or a person has a case, the writ is drawn, the lawyer gives it to the sheriff or brought a proper officer for service.
And the service officer makes a fee, makes a service and returns the writ to court.
Now, the fee payable to the sheriff is paid by the client or the lawyer.
The state does not enter into that angle of the case at all.
The case is returned to court after service.
Now if they are not arrest in defendants, the sheriff has to go over the court or with the representations affidavit made the lawyer showing the type of service which would most likely reach the attention of the defendant.
Very often, that calls for publication and sometimes a series of publications, two or more.
So, it was on their basis of these features and many other features that we argued in the lower court that this is matter of legislative action rather than judicial determination.
Every state in the union so far as I know including the support of the Federal Courts have entry fees and court fees.
They're waived in the Federal Court by a form of pauper statute.
That is true to in some other states.
They have form of pauper statutes.
But there are so many factors to be taken into consideration for form of pauper statute that it would seem to me a pauper domain for the legislature.
And then that regard, we mentioned in the brief that in Connecticut right now as of July 1, they've started through the Welfare department of pilot program.
Including in it is a legal services and appropriations for it and last week before coming down, we checked in the progress of this pilot program which is funded by the Welfare department.
It's mentioned in our brief and there' a schedule attached there to showing the appropriations available.
Now that case among other actions they've had through the legal assistance program in Middlesex in County, it's involved and I think three counties, smaller counties to give it a test program, to promote and advocate legislation in the next turn around.
They have six divorces' cases printing since July 1.
They are making or negotiating a contract with the Middlesex Bar Association to conduct this because it was not only divorce case and it's not only welfare cases that probably need access to courts, but there are many, many indigence probably who can't afford litigations.
Some of there rights are waived.
The OEO or legal assistance in New Haven has paid for entry fees.
They do have appropriations entry fees.
They could have well brought this case.
It seems to me in one situation bringing the a declaratory judgment in the Connecticut Court give the Connecticut Courts of proper way to pass on this issue in a judicial fashion.
The Federal Court has held this and another cases that the clerk and the judge who says you can't get in to court unless you pay the entry fee, I have no power to waive the statute, but I can't -- the judicial capacity, we're acting these administrators and the Federal Court says that exactly that that they're acting in administrative capacity when they say they have no power to waive the court.
Whether the Connecticut Courts would have done anything on that, I do not know.
No one else, they do and I don't have the opportunity to pass on it as a group decided the Supreme Court.
The only issues here are the -- if there is any constitutional problem in this case, it's whether or not the entry fees statute provides equal protection.
It seems necessary to have these entry fee statutes, court cost, if they're reasonable in nature and do not impose an undo burden and no unfair discrimination, no invidious discrimination.
They are arbitrary or harsh, then, the fall has been allowed.
I do not know if this is a case of first impression.
There was no other similar situation and this Court has not expanded the Griffin doctrine to situations such as this.
The civil suit which doesn't have in and over itself for a no state participation whatsoever, it's a dispute between two individuals and this case here, if the judgment was rendered on this case, this is for welfare recipients.
Hundreds of other people in Connecticut that are indigent can't afford it, but there not welfare recipients.
The judgment of this case could well revert and reverse discrimination.
That's why we say it's a matter for the legislature.
At Due Process, the parties, the plaintiffs made the same claim in the Federal Court about the Due Process, but Due Process -- this three-judge court didn't even consider the issue of Due Process.
I think Due Process is pertinent cases of this type.
They have the right to go to get into court.
The only thing is the condition of getting in is him by a reasonably entry fee as these entry fees prevails throughout the United States or court cost prevailed throughout the United States.
And appeals even the federal statute of 1915, incidentally provides only that in a civil case brought in form paupers, the court may request an attorney to represent any such person unable to employ counsel.
There's plenty of cases on that and they have been interpreted to mean only that the court may request.
They cannot order representation by counsel such as they do in all civil cases.
We of course in Connecticut have numerous situations which by statute or specific circumstances allow people to get in the court without payment of fees.
Where workman's compensation, the uniform support, that's been waive, but on the statute has been waive as a matter of policy with most dates and there's others that for the moment, I just skip my mind.
Justice Potter Stewart: General Cannon, I notice in the appendix, appendix A to the brief of the National Legal Aid and Defender Association amicus brief that Connecticut as listed here is having the court's there of having power to waive these fees, is that --
Mr. Raymond J. Cannon: That's in the Uniform Reciprocals Enforcement Support Act and yes Your Honor and they waived them as the matter of policy in all cases that uniform Reciprocals Support Act provides that state may waive the cost.
That is where they collect for a wife in Connecticut, a husband some other state or vice versa.
A wife can enforce support for herself and the children by having proceedings in one state orders in the other state.
Justice Potter Stewart: I see.
So, it's limited only to the kind of an action?
Mr. Raymond J. Cannon: That's correct.
Justice Potter Stewart: An action for maintenance and support?
Mr. Raymond J. Cannon: That's correct Your Honor.
Justice Potter Stewart: I see.
Mr. Raymond J. Cannon: They have a notation there as I recall it $60.00.
Justice Potter Stewart: I see that under UERESA, I'd now see it.
Mr. Raymond J. Cannon: But there's no $60.00 fee in any court cost in Connecticut.
It would be combination of the -- if it's $60.00, the combination of $45.00 or entry fee and the $15.00 fee which the client owes to share but not the court do not involved in this situation at all.
Before it closing, either --
Justice Hugo L. Black: $15.00 fee for service?
Mr. Raymond J. Cannon: I beg your pardon sir.
Justice Hugo L. Black: $15.00 fee for what, service?
Mr. Raymond J. Cannon: Service or process against the defendant citing them in.
Served the living with him or as the usual place for both, must be the resident of the state.
Justice Hugo L. Black: What are the other cost?
Mr. Raymond J. Cannon: Well in divorce, it probably not other, but there is witness fees, investigation ordinary cases, investigation fees and the counts of course.
Justice Hugo L. Black: Investigation fees?
Mr. Raymond J. Cannon: Not in divorce, I mean --
Justice Hugo L. Black: Other things.
Mr. Raymond J. Cannon: In divorce fees -- divorce cases, I would say there's probably rate cost, the sheriff, the witnesses and publication.
Justice Hugo L. Black: Suppose the defendant comes in, suppose the plaintiff comes in and files a petition for divorce and the other spouse comes in and agrees to accept service, is there any cost there?
Mr. Raymond J. Cannon: I've never heard of that situation Your Honor.
Justice Hugo L. Black: Of accepting service?
Mr. Raymond J. Cannon: Well, the service has to do.
There some and then under the Connecticut statute by a written summons to appear in court.
Now, for word of proper form and were signed by an attorney or ordered sign by a clerk or judge rather, then they could accept service.
Justice Hugo L. Black: They could accept.
Can they just come into the court and file an answer for that in the summons of service summon?
Mr. Raymond J. Cannon: Without actually making the summons or making actual service of the summons, yes.
But there's another statute would says in every civil action shall be in a special form.
Justice Hugo L. Black: And they consent this?
Mr. Raymond J. Cannon: With the writ of summons and complaint.
Justice Hugo L. Black: And they consent for the case to be tried right way.
I'm talking about some practices that I know exist over the country.
Mr. Raymond J. Cannon: No, there's a 90-day waiting period in Connecticut.
Justice Hugo L. Black: They have to wait 90 days?
Mr. Raymond J. Cannon: After waiting 90 days at any event after they return day before it be brought to trial.
Justice Hugo L. Black: And they have to take evidence of course?
Mr. Raymond J. Cannon: They have to take evidence and it's usually two or three witnesses requires.
Justice Hugo L. Black: And why?
Mr. Raymond J. Cannon: It's usually two or three supporting witnesses required.
Justice John M. Harlan: Mr. Cannon, how would you describe the state interest that's involved in closing the door of its court circumstances of this kind?
What do you think the real estate interest is?
Mr. Raymond J. Cannon: Well I think this Your Honor, I think the fees are reasonable and then the only way it can be done it seems to me is by discretionary whereby legislature.
Justice John M. Harlan: What interest this, is the state serving consuming for the moment that there is some kind of a screening process to prevent abusive resorts of to the courts.
What others in the statement personal?
Mr. Raymond J. Cannon: I'm not sure --
Justice John M. Harlan: Not merely is the legislature because the better body to do it, but what is the -- to make the change and what is the state interest?
Mr. Raymond J. Cannon: The state interest is only -- I presumed to prevent frivolous litigation.
Justice John M. Harlan: Well, I supposed --
Mr. Raymond J. Cannon: Tend to prevent it rather.
Justice John M. Harlan: Supposing you protected it self by setting up procedures screening process of some kind that you said no or we won't waive these fees frivolous, untenable litigation, and what interest is there in the state requires across the board application?
Mr. Raymond J. Cannon: I don't think that state has legitimate interest to waive all court fees, a license within the realm of the legislature to do it, they could have do it of course, but they have to provide tax measure elsewhere, thus the entry fee do, can or do help to support the judiciary system.
As far as disputes between the parties are concerned in a divorce case, the state is a more on standing under the sidelines.
They are not a party to the action.
They don't represent, the only place that possible in their state would get interested in a divorce case as if they were minor children on welfare or in hospital or mentally retarded institution or somewhat in that sort, so welfare standpoint.
Chief Justice Warren E. Burger: Mr. Cannon, if the screening procedure were set out which required people who could not pay the fee to go through the screening in order to get a waiver of the filing fees and other costs, would that not be a denial of equal protection because rich people would not have to go through that screening process?
Mr. Raymond J. Cannon: Well I don't know how they could or have a screening process work in any event.
If I intimated that, I didn't mean it, I wouldn't think even from part from the constitutional questions which I would tend to agree with would also seem to be very commerce and then workable.
Chief Justice Warren E. Burger: But I'm not sure I have the position on it.
I'm just thinking the kind of arguments that we likely be tendered to this Court to make the poor man go through a process which rich man don't have to go through?
Mr. Raymond J. Cannon: Well, I think there are to be a reasonably form of pauper statute in every state that myself, but I don't know how it's going of the done.
There are so many factors.
There are so many situations that will come up.
I'm sure that this program, it's now being well developed some good.
The funds appropriated.
There's a total $119,000.00.
I think that was more than that though I believe.
Justice Hugo L. Black: What was that?
Mr. Raymond J. Cannon: The pilot -- there's a pilot program justice.
It is being worked out through the welfare department in Hartford, in Connecticut.
It's a special legal services project; a $119,000.00 is being tried out in two smaller counties up there and the director --
Justice Potter Stewart: Is that a $119,000.00 or people?
Mr. Raymond J. Cannon: Dollars.
And they provide legal services and their purpose is as said by the acting commission in welfare is to enable us to make recommendations for program or policy changes that our statewide programs
We are getting this form of pauper statutes.
Somebody's got to pay the sheriff for publication and newspaper and things like that.
Now, what -- there's another problem is to what appropriated state fund is going to be charge to.
We have statute of course that no state officer can spend the moneys that are not appropriated and other statute that he can only spend the moneys for the purposes for which it was appropriated.
Otherwise, this personal liability on the officer had probably other expose to other chargers.
It's sort of a complex procedure and seemed to me that it's a matter really for the -- rather really for the legislature and I think that the constitutional programs for questions raised either are not too momentous in view of the fact that access is a Due Process isn't a picture because access the court is not deny, it's him then or condition by a reasonable charge which is prevails, so far as I know that every state in the union and then the Federal Government, the Federal Courts.
Justice Hugo L. Black: Suppose the state should decide to abolish its divorce law, do you think Federal Constitution would permit it?
Mr. Raymond J. Cannon: The old cases have said so Your Honor.
Justice Hugo L. Black: What?
Have said what?
Mr. Raymond J. Cannon: The old cases which seemed to indicated that where is not likely they've been large and made it into more rarely available because --
Justice Hugo L. Black: Most provision of the Federal Constitution was violated.
Mr. Raymond J. Cannon: Would bar divorce?
Justice Hugo L. Black: If a state should bard divorce?
Mr. Raymond J. Cannon: I think it's purely state matter.
Justice Hugo L. Black: It would what?
Mr. Raymond J. Cannon: I would think Justice it's purely state matter the court may bard divorces without being in contravention of the --
Justice Hugo L. Black: Well then, you wouldn't think it violated the Federal Constitution for state to abolish divorce in town.
Mr. Raymond J. Cannon: I would not think so that bringing every state in the union has different grounds and different conditions prevailing in divorce cases.
As far as Connecticut is concerned of the end of three year residence, but now this year, they reduced it to one year to show that their --
Justice Hugo L. Black: Much up too much as conscience, would it not?
Mr. Raymond J. Cannon: Well, that is true.
Justice Hugo L. Black: That would be true among legal findings.
Mr. Raymond J. Cannon: Thank you Your Honor.
Chief Justice Warren E. Burger: Mr. LaFrance, do you have anything further?
You have about two and a half or three minutes.
Rebuttal of Arthur Lafrance
Mr. Arthur Lafrance: Let me pick up Mr. Chief Justice three points right quickly.
The first is that Mr. Cannon had suggested that the appellant should have bought a declaratory judgment proceeding in Connecticut so that the Connecticut Supreme Court would have an opportunity to rule property on the issues imposed in this case.
All I can say is that we submitted an application to Superior Court for New Haven County and then pursued it to the administrator of the court's of State of Connecticut who is a Supreme Court Justice.
Not only where we not given an opportunity to present this issue and argue it, our papers were simply sent back.
Now for failure to pay the filing fees, if we have brought a declaratory judgment proceeding, the same filing fees would have been required and our papers presumably there would have been set back.
We did make the attempt --
Justice Byron R. White: 4500?
Mr. Arthur Lafrance: Yes.
Justice Byron R. White: Or the declaratory judgment?
Mr. Arthur Lafrance: Yes, the $45.00 -- I would have to check the statutes again Your Honor, but there is certainly an entry fee attached to all proceedings brought the Superior Court.
Justice Byron R. White: 4918 close $45.00?
Mr. Arthur Lafrance: I believe so.
There is a flat $45.00 entry fee required for filling proceedings.
There are some exceptions as Mr. Cannon noted, but the declaratory judgment proceeding, I do not believe would be one of them.
Justice Potter Stewart: That is nothing at all to do with any further or other expenses across that there might be for service and so on.
As I read it on the bottom of page 3 of your brief, it just $45.00 but what it says each civil cost?
Mr. Arthur Lafrance: Yes.
Justice Potter Stewart: However, that's defined else where in your statutes, I don't know, but that's --
Mr. Arthur Lafrance: Service with me in addition to the $45.00 --
Justice Potter Stewart: -- in the civil case, you have to pay for $45.00 quite apart for any additional expenses?
Mr. Arthur Lafrance: Yes, that is correct.
The second point that I would like to pick up quickly is simply that there is no justification in Connecticut for imposing this requirement of filing fees.
It does not discourage frivolous litigation.
The wealthy can bring that litigation if they choose to do so.
What is achieved by these filing requirements is that the poor may not bring frivolous litigation.
We submit that this letter is a denial of equal protection of the laws.
Chief Justice Warren E. Burger: Because that assumed that there is a constitutional right to bring frivolous litigation as you have defined it?
Mr. Arthur Lafrance: No, it does not.
It does assumed --
Chief Justice Warren E. Burger: Sounds like the predicate for your argument?
Mr. Arthur Lafrance: It does ssumed that there's a constitutional right to bring on behalf of the poor the same of kind of litigation which the wealthy can bring.
Chief Justice Warren E. Burger: But you defined it in your hypothesis as frivolous.
You say because a rich man can bring frivolous litigation, a poor man must be guaranteed by the constitution like a merit?
Mr. Arthur Lafrance: Perhaps, I should -- well, I will argue that but I would also contend that the fee requirement in Connecticut has the further affect of discouraging meritorious litigation by the court.
In other words, it bards all litigation by the poor whether frivolous or not.
And that is a consequence which we feel that constitutional --
Justice Hugo L. Black: Your argument -- it would require as I understood it that the state fee a lawyer was a divorce -- question among the divorce?
Mr. Arthur Lafrance: I'm sorry, am I contending that?
Justice Hugo L. Black: Are you not?
Are you arguing that because of rich man can hire lawyer to get a divorce?
The state must supply lawyer for a poor women or poor men wants to get a divorce?
Mr. Arthur Lafrance: No, I'm not.
Justice Hugo L. Black: Well, how could you keep from doing it if you made them pay the call?
Mr. Arthur Lafrance: Because the State of Connecticut does not require a person to come in to court with a lawyer.
It requires a person to come in to court with the money to pay filing fees.
Justice Hugo L. Black: But the case on which you're relaying was a lawyer, wouldn't it?
Mr. Arthur Lafrance: The case on which I --
Justice Hugo L. Black: Within was not a lawyer?
Mr. Arthur Lafrance: In Griffin issue --
Justice Hugo L. Black: If it will be just Illinois?
Mr. Arthur Lafrance: It was a transcript on appeal Your Honor.
Justice Hugo L. Black: But you wouldn't say that they would be required to supply lawyer.
How could a poor person try the case without lawyer.
Mr. Arthur Lafrance: All you would have to do, I suppose would -- in the instance of divorce is go to married in Connecticut, sit and watch the informal proceedings on which divorces are granted, present his two witnesses which usually consisted of a mother and a neighbor.
Justice Hugo L. Black: Suppose they litigated and the other fellow had a good lawyer.
Mr. Arthur Lafrance: In that case the State of Connecticut has provision for the husband to be assessed for the cost of providing counsel.
I do not contend here that counsel --
Justice Hugo L. Black: Suppose -- one finally gets the divorce and use the full person?
Mr. Arthur Lafrance: Your Honor, I do not contend that a person without counsel is as well equipped as a person with counsel to litigate in court.
All I do contend is that what is required by the constitution is that the person be given an opportunity to get in to court.
The constitution does not require that the state go farther and provide counsel.
Chief Justice Warren E. Burger: I think your time is up Mr. LaFrance.
Thank you for your submission.
Thank you for Mr. Cannon for yours.
The case is submitted.