M.L.B v. S.L.J.

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Argument of Robert B. McDuff

Chief Justice Rehnquist: We'll hear argument now in Number 95-853, M.L.B. v. S.L.J.--

Mr. McDuff.

Mr. McDuff: Mr. Chief Justice and may it please the Court:

As a result of an order of the Chancery Court of Benton County, Mississippi, my client is no longer the mother to her children in the eyes of the law.

The only way she can become their mother again under the law is through the appeal that is available as a matter of right under Mississippi law.

The question in this case is whether the supreme court of Mississippi can, consistent with the Fourteenth Amendment, prevent her from taking that appeal in a case of this magnitude without even considering her claim that she is too poor to pay the $2,300 fee that the State has imposed.

Unknown Speaker: When you say, Mr. McDuff, considering her claim, what do you suggest would be the factors that the supreme court of Mississippi would take into consideration if it were to "consider it", as you say?

Mr. McDuff: Well, I just mean that they have not even considered her claim that she is too poor, which would involve a consideration of her income.

Unknown Speaker: But if they were to conclude that her income were too poor, were below whatever standard--

Mr. McDuff: Yes.

Unknown Speaker: --then they would have to allow the... require this money be paid to the court reporter?

Mr. McDuff: Or they... well, they could do a number of things that would allow her to appeal.

I mean, one is they could excuse her as in a normal in forma pauperis case, and allow her to proceed without a payment to the court reporter.

Another is, they could set up a schedule of payments.

Another is, they could have her sign a note.

Unknown Speaker: The court reporter is going to have to be paid in any event, I take it.

If your client doesn't pay him the State is going to have to... it's not the sort of a fee that the State could simply waive.

Mr. McDuff: Under State law as it is written now, that is correct, but as we pointed out in our reply brief in response to the claim of the State that if we win this case this will involve an incredible outlay from the State Treasury, if Mississippi chooses it can change State law so that in certain cases the court reporter is not paid $2 a page.

The court reporter here is an employee of the State, makes $33,000 a year in salary.

Unknown Speaker: But the reason he takes the job is because of his access to these out... these transcripts, is it not?

At least, that was my experience with court reporters.

You wouldn't hire... they wouldn't come to work just for the fees they get for sitting in court.

It's the transcripts on which they make their money.

Mr. McDuff: Well, I don't know the answer to that.

I assume that's true certainly for many, if not all.

But Mississippi could do, for instance, as Texas has done, or has West Virginia has done.

Unknown Speaker: Or it could abolish appeals, alternatively, couldn't it?

Mr. McDuff: Certainly, yes, and I mean our point here--

Unknown Speaker: Which suggests, you know, if the greater includes the lesser we can abolish the appeal entirely, why can't it simply provide, we'll give appeals, but not if the State has to put in any money, and we're not going to give it to impecunious litigants?

Mr. McDuff: --Well, for the same reason expressed in the majority opinions in Griffin and the long line of cases that have followed Griffin.

Unknown Speaker: Those were criminal cases.

Mr. McDuff: That's true, Your Honor, but in, for example, Lindsey v. Normet, which is a civil case, this Court expressed the same principle that, if... once the right of appeal is provided by a State as a means of promoting accuracy and as a means of correcting errors and correcting injustices, it cannot be taken away in an arbitrary fashion, and that's our argument here, is that the interest in this case is so important that the same principle should apply here that applies in Griffin and--

Unknown Speaker: Payment is an arbitrary fashion?

I mean, gee, so much of what happens in the world is determined upon whether you can pay for it or not.

Why is that an arbitrary fashion?

Mr. McDuff: --Certainly, but this is different than someone who comes along and says well, I want the Government to pay for something I can... I want to purchase on the free market, whether it's a car, or whatever.

This is where a citizen has been brought into the court system for the sole purpose of attempting to terminate her relationship with her children, and she is thereby subject to all of the power of the State.

Now... and subject to the court system that has the unique ability to terminate forever her relationship with her children.

Now, in Mississippi, as in most States, the State has chosen to provide a level of accuracy and a level of corrective review for errors and injustices through its appellate courts, but my client is being told, because she's poor, she can't take advantage of that, while those who have money can.

Unknown Speaker: How about a custody proceeding, a child custody proceeding?

Would you be here making the same argument if she had lost in a custody battle?

Mr. McDuff: I don't think... I don't think that argument would have the same weight we have here because of the difference.

I mean, when a person loses custody, even though the child may leave the home, the parent can still visit with the child.

Unknown Speaker: Well, maybe the custody order doesn't provide for visitation.

Mr. McDuff: Or... and even if it doesn't--

Unknown Speaker: Is it going to turn on that?

Mr. McDuff: --Even... it doesn't in most custody orders, no.

There is an element of an ability to communicate, to play a role in the child's life, and in the future, if conditions change, the parent can petition for visitation or petition for custody.

By contrast, with a termination--

Unknown Speaker: So you think a principle line can be drawn--

Mr. McDuff: --Yes.

Unknown Speaker: --between the--

Mr. McDuff: Yes, I--

Unknown Speaker: --this case and a custody case?

Mr. McDuff: --Yes, I do, Your Honor, and one example is Santosky v. Kramer, where this Court held that in parental termination cases, because of the severity, because of the finality and the irrevocability, a clear and convincing evidence standard was necessary before terminating parental rights.

In Mississippi, the Mississippi legislature adopted that after this Court's decision in Santosky, but Mississippi has not adopted, and other States have not, for that reason adopted a clear and convincing standard when the State seeks to take custody from parents without terminating their rights.

Unknown Speaker: How do you distinguish Harris v. McRae, where the Court was dealing with a medically necessary abortion for an indigent woman?

Mr. McDuff: The distinction I think there, Justice O'Connor, is that in Harris the citizen wanted an abortion paid by the Government that she would be receiving on the free market of something she chose to obtain.

Here--

Unknown Speaker: There was considered, I thought the circumstances were that it was medically necessary.

Mr. McDuff: --Yes, but it was done through the governmental program of medicaid, is what the citizen was seeking.

Here, by contrast, where the... the petitioner has been brought into the court system, where the State has set up the exclusive mechanism for terminating her parental rights, and all she is asking is that she receive the same protections that have been set up by that system--

Unknown Speaker: Well, how much--

Mr. McDuff: --that a wealthier person would receive.

Unknown Speaker: --How much weight do we give to this exclusive method for termination?

In many States the only way to foreclose on one's home is by a court proceeding, a foreclosure of a mortgage.

Now, would you distinguish that--

Mr. McDuff: Yes.

Unknown Speaker: --The person says, this home is absolutely essential to me.

I'm raising my kids in it, and if I lose it, it means my whole family life goes.

Mr. McDuff: Yes, and we're not basing our claim solely on the fact that the State has this exclusive power, but we are basing it in part.

The difference between our case and the case you cite, I think, is the fact that housing and ownership of land does not have the same constitutional status as the relationship with one's children, and this Court said that in Lindsey v. Normet, I think, when talking about how housing does not have the sort of constitutional magnitude that exists in other cases like this.

Unknown Speaker: You think that's right?

And why is that?

Yes, I was about to ask, why--

--Why is that?

Why doesn't it have the same constitutional magnitude?

It sounds important to me.

Mr. McDuff: Oh, certainly it's important, but I think that... I think this Court's long line of decisions have noted that family relationships between children and parents are of a much greater constitutional magnitude, and the notion of liberty--

Unknown Speaker: You mean to tell me that if I am... let's say I am dismissed by an employer allegedly for sexual abuse of a child committed to my care as an employee, my reputation is ruined, I pay millions of dollars in damages in a civil suit, I am unemployable in the future, in that kind of a situation the State would not have to pay for an appeal?

Mr. McDuff: --There would be less of a case in that situation--

Unknown Speaker: Less of a--

Mr. McDuff: --than we have here.

Unknown Speaker: --Less of a case than--

Mr. McDuff: Yes, less of an argument.

Unknown Speaker: --here?

Mr. McDuff: Oh, yes.

I think less of an argument, because the right here... for example, in the case you just posit, Justice Scalia, if someone goes into court and tries to take away some privilege of a person because of these types of accusations, as long as they're not criminal--

Unknown Speaker: Is that right?

Mr. McDuff: --there's no clear and convincing evidence standard.

Here, the Court has held in Santosky, in Lassiter where the court discussed the right to counsel, has held the determination of parental rights works a grievous harm that is unlike no other save, perhaps, involuntary incarceration.

Unknown Speaker: I'm just asking whether it's true, is what I'm asking.

Mr. McDuff: Oh, yes.

Yes.

Unknown Speaker: It's true?

Not just that we said it, but that it's true?

Mr. McDuff: Oh.

[Laughter]

Unknown Speaker: You distinguish in response to Justice O'Connor the custody case from the deprivation permanently of parental status on the basis of the permanence of the latter.

Well, what about establishing parental relationship?

What about paternity proceedings?

Suppose there's a finding of paternity in a district, in a lower court, is the defendant in that case, by your reasoning, because of the permanence of that determination, entitled to a free transcript?

Mr. McDuff: I think paternity is much closer to what we have here.

Now, there's one difference, and I'm not... I don't know this in detail, but my understanding is that now, with the new DNA technology, that paternity can be established or disestablished with something close to certainty, so that the... I think the court can take into account--

Unknown Speaker: Well, let's--

Mr. McDuff: --the appropriateness of the--

Unknown Speaker: --Before that, let's say--

Mr. McDuff: --Yes.

Unknown Speaker: --it was just that it was shown by a preponderance of the evidence, not clear and convincing, because as far as I know, clear and convincing--

Mr. McDuff: Right.

Unknown Speaker: --is not required to establish paternity, and then the defendant says, for the rest of my life I will have to support this child, whatever rights a child has under the law, those rights I will have to satisfy, and I don't want that for the rest of my life, so give me a free transcript.

Mr. McDuff: I think paternity is very close to the case we have here, yes.

Unknown Speaker: Is it... would you make any distinction between the two?

Mr. McDuff: I--

Unknown Speaker: So that if we hold for you, then when the next case is paternity, we have to hold that too?

Mr. McDuff: --I think... I think one distinction would be that in a parental termination case you do have a constitutionally imposed standard of clear and convincing evidence in which appellate review... in which there is a role for appellate review in assuring that is carried out, as opposed to the parental termination, where you do not have a... I mean, as opposed to the paternity, where you do not have a constitutionally imposed standard, and I note in this connection a number of times this Court has said that, for example, in the punitive damages cases, that where a State establishes appellate review, it can play a role in protecting constitutional rights, and so I think that argument exists here that wouldn't exist in the paternity case with respect to the level of evidence that's required.

Unknown Speaker: Well, do you want to take that as a general rule, that whenever the constitution is said to impose a higher burden of proof, that the right to sort of economic equality in the vindication of one's position is going to follow?

Mr. McDuff: I think that is certainly a way the Court could draw the line in future cases.

Now, again though, we are not asking for economic equality in presenting the case.

I mean, this Court's decision in Ross--

Unknown Speaker: Well, so far as the issue before us--

Mr. McDuff: --Yes.

Unknown Speaker: --is concerned you are.

Mr. McDuff: Yes.

Yes.

Unknown Speaker: Yes.

Mr. McDuff: Yes, and I'm referring specifically, though, to--

Unknown Speaker: Why not counsel?

Why shouldn't she be entitled, if this is that significant, to have counsel on the appeal?

Mr. McDuff: --Well, I think because of the reasoning this Court expressed in the majority opinion in Ross v. Moffitt.

I mean, the Equal Protection Clause.

Although that wasn't the context of the criminal case, I think the reasoning is applicable here, that the Equal Protection Clause does not give a person the right to duplicate the legal arsenal of a wealthier person in presenting the case, but it does, the Fourteenth Amendment does give a right to present the case in the first place where the interest is important and where the State has set up these mechanisms for promoting accuracy and for correcting injustices.

The--

Unknown Speaker: If we find that the Equal Protection argument you make is unavailing, that is to say that it is not unreasonable to make this distinction, does that not necessarily determine also the invalidity of your due process argument?

I mean, I take it you're making a due process argument as well as an equal protection argument.

Mr. McDuff: --Yes.

Yes.

Unknown Speaker: And I'm basically asking, is there a difference between the two?

Once we have said that it's not... I'm assuming we said that it's not unreasonable to make that distinction.

Wouldn't the due process argument fail as well, or would it?

Mr. McDuff: I don't think so, and of course the... I mean, the Griffin line of cases has employed both the Due Process and Equal Protection Clauses, and I think the difference, I guess, is... was expressed by this Court's majority opinion in Evitts v. Lucey, describing the Griffin line, where it said the due process claim is based on the fact that the State has set up these appellate procedures to promote accuracy and so forth, and therefore the State acts arbitrarily towards a citizen when it takes them away, in effect, and when it does not give the citizen the full benefit of that panoply of protection.

Unknown Speaker: Even though we've said it's reasonable for equal protection purposes, that's--

Mr. McDuff: I mean, you do have a point in the sense that in the Griffin line the two have gone together, but I do think it's a separate analysis.

I mean, if the State has set this up, and if the State is telling a person that it should... that it has made these... this level of review available and then... I do think it's an arbitrary action, even though you might consider it's, quote, rational for equal protection purposes.

Unknown Speaker: --Is the real problem with this case that the judge didn't give reasons, the trial judge, and did you preserve that as an independent ground for alleging a constitutional violation at any point?

Mr. McDuff: There is--

Unknown Speaker: The judge just doesn't give a reason.

Mr. McDuff: --The judge's... the judge's written order came after the trial was over, and so it can be raised on appeal, and will be if an appeal is permitted.

Unknown Speaker: But you're not making that argument here.

That's a separate, independent constitutional violation, a failure to give reasons.

Mr. McDuff: We're not making any merits arguments--

Unknown Speaker: Well, you could make that argument without a transcript.

Mr. McDuff: --Yes.

Yes.

Unknown Speaker: Can I go back--

--Can I ask you--

--Please.

--just a sort of variation of Justice Kennedy's question.

In the Lassiter case, the Court refused to hold that a person like your client is entitled in all cases to counsel, but did indicate on a case-by-case basis counsel might be required in some situations.

Supposing in this case, instead of a one-line order rejecting your claim, the trial judge had made detailed findings of fact saying that he relied on the testimony of so-and-so to the effect of blah, blah, blah, and he gave a very careful opinion and analysis of the reasons, and you could tell what the basis of the decision was and what the evidentiary support for it was.

Would you still say you were entitled to counsel in that situation... I mean, entitled to a transcript in that situation?

Mr. McDuff: I think we could.

I don't think it would be as strong an argument, but yes, I think as long as Mississippi supreme court requires a transcript to review contentions that the trial judge's findings and conclusions were unsupported by the evidence or contrary to the evidence, and assuming that argument could still be made after this opinion, yes, we would still have the same contention.

Unknown Speaker: The other is the question whether you really come within the rule of the due process cases, because I thought the rule in the due process cases was that the State could not on one side of it's... from one side of it's mouth say, you have a right to an appeal here, you're entitled to be in court, and on the other hand say, but aha, there is some barrier which we are erecting which precludes you from taking advantage of this appeal right.

Here, what the State is saying is, nobody without the cost of a transcript, or nobody without a transcript in his hand, has a right to appeal.

It's a condition precedent for the appellate right in the first place.

So that it seems to me you're not within the due process cases reasoning, and it seems to me you've got to stand or fall on equal protection.

Mr. McDuff: I don't think so, I mean, because the fact that the State says yes, you have to have a transcript in the beginning to take the appeal is simply a procedural rule that it imposes, and because it conditions it on this $2 payment per page to a court reporter, I think it is the same sort of barrier that you would have, and that's why I think Griffin and its... that line of cases went off not only on equal protection but on due process.

Unknown Speaker: Mr. McDuff, as a practical matter, what is the difference between a decree of nonparenthood, as in this case, and a decree as sometimes occurs in cases of no visitation rights, no custody and no visitation rights?

What does this individual lose that a parent who is denied custody and visitation rights doesn't lose?

Mr. McDuff: The parent who is denied custody and visitation rights can later petition to regain them if conditions change, and depending on the order may still be able to have some contact with the child over the telephone, or letters, or still participate in decisions.

Unknown Speaker: Well, that would happen here.

Just because the State declares you're a nonparent doesn't mean you vanish.

I assume you could still--

Mr. McDuff: It does mean that you are erased from the child's life as their parent save for any grace given by the ex-husband and the new mother, who I guess could allow the children to visit with you, but otherwise--

Unknown Speaker: --That's the same as no custody and no visitation rights.

Mr. McDuff: --But with no custody and no visitation you can petition when conditions change.

With the termination of parental rights, as this Court said in Santosky is, one of the reasons it imposes the clear and convincing evidence rule, it is final and irrevocable.

The chancery court's order here illustrates it.

I mean, it ordered that the name of my client be taken off the children's birth certificate as their mother and replaced by the name of the new mother.

Now, that's symbolic, but I think it symbolizes the dramatic difference here, and that's why I think this Court ordered clear and convincing evidence as the appropriate standard in these cases, but it has not been ordered in custody cases of the type you're talking about.

The--

Unknown Speaker: You made an analogy to the criminal proceeding in terms of the impact on the person, so you said what... you're really asking for an extension of the Griffin line.

I think that's what you said.

Mr. McDuff: --We think--

Unknown Speaker: That deprivation of parental status is as severe as a $250 fine.

Mr. McDuff: --Yes.

Unknown Speaker: But you don't go all the way, because Griffin and Douglas came together, and I think you are recognizing that right to counsel is not something that would be automatic.

Mr. McDuff: Oh, that's correct, but I think that's also... that's true in the Griffin line of cases.

For example, in Mayer v. City of Chicago the Court held that a transcript is necessary for a... an appeal of a convic... a misdemeanor conviction in which no jail time is imposed, but the Court said in Scott v. Illinois that counsel was not required, so I think that they are not coextensive in terms of the breadth of the constitutional principles.

The--

Unknown Speaker: You mentioned that you weren't sure about the paternity situation.

Is there... and you are attempting to distinguish all other civil proceedings.

Is there anything else that you would say is like this?

Mr. McDuff: --Involuntary civil commitment, I think, is of this magnitude.

Unknown Speaker: May I ask--

--Why is that the line?

What if I feel differently?

What if I feel it's really bad, and maybe even worse for some people to lose all their worldly possessions?

How do I decide which cases to... just my feeling about parenthood, or my feeling about worldly possessions?

Mr. McDuff: Justice Scalia, I think through the same process this Court has gone through in the cases, for example, involving the clear and convincing evidence standard, where it has imposed them as a constitutional matter, in involuntary civil--

Unknown Speaker: I wasn't here then, so I don't know what they did.

[Laughter]

I thought maybe you could help me out as to how we came to those conclusions.

Mr. McDuff: --I think it's the traditional sort of Fourteenth Amendment analysis where you--

Unknown Speaker: How I feel about it, essentially.

Read the opinions.

[Laughter]

Mr. McDuff, may I ask a question about Mississippi practice?

Who paid the guardian ad litem?

Mr. McDuff: --The guardian ad litem's payment was awarded as costs by the chancery court against the plaintiff, who's the ex-husband.

Unknown Speaker: So your client was charged $500 for the guardian ad litem?

Mr. McDuff: No, I'm sorry, it was awarded against the... the costs were awarded against the person who actually prevailed in the case--

Unknown Speaker: I see.

Mr. McDuff: --in this instance, who is the father.

Unknown Speaker: And so the guardian was paid by the successful party.

Mr. McDuff: Yes.

Unknown Speaker: If you... go ahead.

Could the guardian have appealed?

Mr. McDuff: Yes.

Unknown Speaker: And who would have paid for the cost of the transcript if the guardian had appealed?

Mr. McDuff: I... there were several possibilities there.

I guess the court, either the chancery court or the supreme court could have ordered one of the parties to pay it, or I think the guardian might have.

If the guardian could not afford it, and if the guardian--

Unknown Speaker: Well, the guardian certainly doesn't have any interest in paying it.

Mr. McDuff: --Right.

The... I think the same principle that we are invoking here might be available if the guardian is able to claim, as the guardian could do in claiming the rights of the child.

Unknown Speaker: This is an... I'm sorry, just one more.

This is an infant, two or three... how old was the child here?

Mr. McDuff: Five and seven, I believe--

Unknown Speaker: I see.

Mr. McDuff: --at the time of the termination.

Unknown Speaker: If your client had succeeded in raising the money to pay the... for the transcript, could she have... and was successful on appeal, could she have recovered that as part of her costs?

Mr. McDuff: Yes.

Yes, and we cite in our reply brief the provision of the Mississippi rules to that effect.

Unknown Speaker: What are the instances, or are there instances in which the State does pay for the cost of the transcript?

Mr. McDuff: In Mississippi, it is in criminal cases.

Unknown Speaker: Pardon me, in a civil case.

Mr. McDuff: There's a Mississippi statute that provides that it will be paid for in involuntary civil commitments.

Now, the Mississippi supreme court has a stated principle that it stated in this case that in forma pauperis appeals are not allowed in any civil case, but in fact there is this statute that apparently the court was not considering when it made that statement both in this case and in several prior cases.

The... Justice Kennedy, you earlier were talking about the Equal Protection Clause and whether... and what would happen if the Court found that the Mississippi scheme here was rational.

We actually do think that, because of the interest involved here, that there is something greater than rational relationship test, and something greater than minimal scrutiny, and that at the very least intermediate scrutiny would be appropriate give, number 1, the fundamental interest in the parental right, and the fundamental interest in what this Court has called an accurate determination regarding that right.

And specifically I'm referring to the Lassiter case, so for that reason we think that the justification offered by the State, particularly this $2 per page thing, which is not required at all for the State to continue... for it to keep its court system going and does not promote the State's interest in accuracy which it has expressed by providing these appellate courts, that the State has not put forward a persuasive or substantial--

Unknown Speaker: Well, are you suggesting that the court... that courts could employ reporters at the same salaries if they weren't allowed to charge for transcripts?

Mr. McDuff: --I don't know the answer to that, Mr. Chief Justice.

I think they could, but I think they certainly would be able to keep them if, for example, they continued paying them the $33,000 a year they receive, continue to allow them to receive $2 per page for the many paid transcripts they do during the year, but said that these in forma pauperis transcripts are going to be part of your duty as a salaried State employee.

I reserve the remainder of my time.

Unknown Speaker: Very well, Mr. McDuff.

Mr. Moore.

Argument of Rickey T. Moore

Mr. Moore: Mr. Chief Justice, and may it please the Court:

The issue in this case is whether or not the State is going to have to subsidize the cost of appeal of an indigent appealing termination of parental rights, and we contend that it does not either on due process or equal protection grounds.

From a due process point of view, previous longstanding decisions of this Court have held that appellate review is not necessary for due process purposes, and as to the equal protection claim, this doesn't fit within any of the recognized equal protection type claims.

First of all, there's no disparate treatment among litigants.

Everybody's treated the same.

Everybody's required to prepay the cost of the appeal.

Second, there's no suspect class involved, because previous opinions of this Court have held that the poor are not a suspect class for equal protection purposes even when fundamental rights are involved.

And third, there's no impingement of a fundamental right in this case because the only interference with the parent-child relationship is the statute that allows the State to terminate parental rights under certain circumstances.

The only issue in this case is what procedural due process must be provided prior to that termination, and that either goes back to a Mathews analysis of whether or not the proceedings that are provided are fundamentally fair, and then it would seem the question--

Unknown Speaker: May I ask just one question?

It is true, is it not, that the child has to be represented separately in the proceeding?

Mr. Moore: --Yes, Your Honor.

Unknown Speaker: And that's a matter of due process, too, I would suppose, because the child's rights are as vitally affected as either set of parents.

Mr. Moore: The statute requires--

Unknown Speaker: At least the statute does require it, and what is the... and therefore there has to be a guardian ad litem appointed if the child is a minor, and what if the guardian... I know it's... it would be an unusual case, but what if the guardian took the position that the natural mother was a better parent and wanted to appeal an adverse decision, would the guardian have to advance the transcript cost?

Mr. Moore: --That is unclear.

The guardian is paid pursuant to the... a rule, I think it's Rule 17 of the Appellate Procedures, and there is some statements about the trial judge being able to enter any other orders, which might imply there might be a possibility, if the trial judge decided that that was in the best--

Unknown Speaker: If the interest of justice required, in this unusual case the judge might conceivably order the State to pay the... order a transcript if the guardian indicated a desire to appeal.

Mr. Moore: --Well, I think it simply... it's unclear.

It seems to me there might be an argument to that effect, but as to whether or not that would be accepted, I don't know.

Unknown Speaker: Would it be wrong for the court to say that a guardian is entitled to an attorney, the child is entitled to an attorney as an equal protection matter because a fundamental right is implicated here?

Mr. Moore: I'm sorry, I didn't... I didn't get the question.

Unknown Speaker: Suppose counsel were required in a termination proceeding such as this, and the court announced that the requirement was pursuant to the Equal Protection Clause in the case of an indigent party, would that be an incorrect statement of the law?

I mean, i.e., it would be an alternative, alternative ground for... to due process, to Mathews v. Eldridge.

Is it illogical to say that?

Mr. Moore: If you're asking, if the court had ordered an attorney be appointed for the mother, or the child, then--

Unknown Speaker: For the child.

You said it was required under Mathews v. Eldridge that there had to be an attorney.

My only question is, would it also be a requirement under the Equal Protection Clause in the case of an indigent person?

Mr. Moore: --No, what I was saying is, the attorney is... has to be appointed for the child based on the statute, the Mississippi statutes that deal with termination.

Unknown Speaker: It's not required by Mathews v. Eldridge--

Mr. Moore: No.

Unknown Speaker: --to have an attorney, in your view?

Mr. Moore: No.

Unknown Speaker: Or due process, no due process requirement.

Mr. Moore: No.

I think that's the Lassiter case, or... well, Lassiter leaves it open for a potential in certain circumstances based on the balancing test that an attorney might be required.

Unknown Speaker: Mathews really doesn't address the question of when you should have an attorney, does it?

It's more the type of hearing you should have.

Mr. Moore: Right.

Mathews is just whether or not fundamental fairness is met, and whether or not--

Unknown Speaker: Yes.

Mr. Moore: --additional safeguards have to be provided.

I also think that case assumes that fundamental fairness can be met at the trial court level, and that an appeal is not required, which is consistent with the older cases saying that appellate review is not required for due process purposes.

Unknown Speaker: Counsel, do you concede that a fundamental right is at issue here in the case when you deprive a parent by State action of parental rights?

Mr. Moore: We would concede that the parent-child relationship in the past has been held by this Court to be a fundamental interest.

However, in this case we question whether or not there is a fundamental right at this point in the proceedings, and that's because at this point in all of these proceedings there is a judgment by a State trial court terminating this person's parental rights, and based on the line of cases that deal with... Stanley v. Illinois, and the Quillion case, and Lehrer case dealing with biological parents, it seems to indicate that parental conduct determines parental interest, and it would seem at this point that her interest would be at least less than fundamental.

We don't know what they are, but it would be--

Unknown Speaker: Well, I don't know why the interest wouldn't remain the same throughout the proceeding.

It's either fundamental or it isn't, and maybe some heightened scrutiny is required of procedures that the State invokes.

Mr. Moore: --Well, the argument is based, again, on those... the biological father cases, and it seems like at this point--

Unknown Speaker: Hasn't the Court already decided in Santosky that there is something about depriving one of parental status that's not like anything else, and therefore, instead of the ordinary preponderance test, there is a clear and convincing evidence test?

Isn't... whether you agree with that or not, it is the precedent of this Court.

Mr. Moore: --Yes, I don't disagree with that, but Santosky is talking about in the trial itself.

It--

Unknown Speaker: Yes, but in order to... why did the Court say that a clear and convincing evidence standard is required, instead of the ordinary preponderance?

What was the basis for that?

Mr. Moore: --Well, it may be the greater interest, I'm not arguing with that, in the trial stage, but what I'm arguing--

Unknown Speaker: It may be... what did the Court... why did the Court say that as a matter of the Federal Constitution, in order to deprive a parent of parental status, the proof standard that the... that must be met is clear and convincing?

Mr. Moore: --I assume that the interest were considered somewhat more than the normal.

I don't remember specifically from the case whether or not it specifically deals with that.

Unknown Speaker: Well, if the Court said that because there is a fundamental interest at stake, that is, the parent-child relationship is a fundamental interest... let's assume that's what the Court said, as I think it did... then the parent's loss at the trial level doesn't mean the interest is changed, as Justice O'Connor suggested.

The interest remains the same.

Mr. Moore: Well, again, my argument is based on those line of cases that talk about the biological connection alone is not sufficient to raise any interest, and the parent's conduct determines that, so when you have a trial court determining that the conduct of the parent is such that the parental right should be terminated, then it would seem like at that point the presumption of a fundamental right might be lessened, at least.

Unknown Speaker: Well, wouldn't the same reasoning that supported the Court's statement that this higher standard... why do we have clear and convincing as opposed to preponderance for these cases?

What would be the reason for doing that?

It's an extra check, right, because something fundamental is involved.

Mr. Moore: Yes, I believe--

Unknown Speaker: So the appellate review is similarly an extra check.

Mr. Moore: --I believe the higher standard is... within the case was to lessen the risk of error.

Unknown Speaker: And isn't that what the argument is here?

You lessen the risk of error by allowing the appeal, and the argument was that there was insufficient evidence to meet this high standard of proof.

Mr. Moore: Theoretically, any appeal would be designed to lessen the risk of error, an appeal of any case.

Unknown Speaker: I suppose that would have been true in Ross v. Moffitt, too, where you petition for certiorari to the highest court of a State from the decision of an intermediate court of appeal.

Mr. Moore: Yes, that... yes, Your Honor.

Unknown Speaker: Let's assume that the decisions of this Court establish that the... that this is a fundamental right, fundamental relation.

Then the equal protection differential here between those who can get the transcript and those who cannot does in one sense impinge on the fundamental right, does it not?

Mr. Moore: I would disagree with that, because I think that it's not an impingement of the parent-child relationship, and it's certainly not a direct and substantial impingement, which the Zablocki case and others require for this kind of constitutional violation.

It's purely the procedural matter as to what procedures they're entitled to, and in the procedural analysis in the Mathews case, the interest of the parent is taken into consideration in the first part of that balancing test.

We've taken the position that in effect what petitioner is doing here is either attempting to extend Boddie v. Connecticut to the appellate level, or attempting to find an exception to the Ortwein case and, based on their arguments, they seem to be making a purely wealth disparity argument which would potentially bring in all cases of a civil nature, especially those involving rights that have been determined to be a--

Unknown Speaker: But that's not the argument that was made, and I may have misunderstood the petitioner's brief, but I thought they were saying, we're trying to bracket our case not with Boddie but with Griffin, that we think that the impact on our client, permanent deprivation of parental status, ought to be treated the same as a criminal conviction, that there's no other civil case like that that declares a woman a nonparent.

Mr. Moore: --Well, I think based on the use of the Griffin case and what they're arguing for the rights, it's very hard to distinguish between fundamental rights at that point, so you get into a situation of having to kind of do a hierarchy of fundamental rights and then decide where you cut off the appeals and where you don't.

Unknown Speaker: But we asked the petitioner that question, and the answer was, there's only one other thing that the petitioner would put in that same box, and that's civil commitment, involuntary civil commitment, so now you want them... you want to make their argument something that they are not attempting to do with it.

Mr. Moore: I'm saying that that argument would be very hard to implement.

I think it implicates other things.

It would be very hard as a practical matter to separate the one from the other interest.

The result of this would be, I think, that other courts would end up interpreting this to include other fundamental rights and other important rights, and in that regard, in the 1995 in the State of Mississippi there were almost 40,000 domestic relation cases filed in the lower courts, so if they were expanded--

Unknown Speaker: Yes, but how many of those involve termination of parental rights?

Mr. Moore: --There were 194 of these parental rights cases.

Unknown Speaker: Yes.

Mr. Moore: And there were a little over 6,000 paternity cases, and that's compared to a little over 15,000 criminal cases.

It's our contention that there--

Unknown Speaker: But as far as the paternity cases are concerned, there's no... at least the... in the trial court there's no analogy to the clear and convincing requirement of Santosky.

I think it's just... that has been rejected for paternity rights.

There is just a preponderance of the evidence.

Mr. Moore: --I don't recall on that, but the paternity cases are kind of mirror images of the termination cases.

Just like in Boddie, the fundamental right is a right to marry, but it involves a divorce, so it would be hard to separate the two.

I don't see how you could separate the two.

Unknown Speaker: But isn't it true that in the paternity cases the issue is pretty well determined by scientific evidence now, isn't it, rather... you have a rather narrow actual issue?

Mr. Moore: Yes.

Unknown Speaker: Whereas this case could be a law and record case, where you believe some witnesses and you don't believe others, and all that.

Mr. Moore: A lot of those, as I understand, probably go off on... on the test.

Unknown Speaker: Yes.

Mr. Moore: If the tests come back positive, then the potential father admits it and doesn't fight it, so--

Unknown Speaker: Mr. Moore, isn't the paternity case more like any civil case?

I mean, what paternity is about is money.

You have to pay to support the child.

You don't... they don't require you to love the child, to take the child to soccer games.

All you have to do is, if you're saddled with a paternity decree, is to pay money.

That's something of a different quality than to say, you have no parental relationship to this child.

You are a stranger to the child that you bore.

That isn't about money.

Mr. Moore: --Well, I think, though, from a paternity point of view it's just the opposite, I guess, the... in the sense that the person who is in the paternity case doesn't want to be determined to be the father.

Unknown Speaker: Well, people don't want to lose a damage suit, either, but all that's at stake is money.

Mr. Moore: Well, there's also the creation of a legal relationship against the will of the individual as well.

Unknown Speaker: Well, in a... I mean, it could certainly ruin the reputation of someone who is decreed to be the father of a child whose father he claims not to be.

Mr. Moore: Yes, Your Honor, there's other social stigmas, or whatever, that would be associated with it.

There's also, as far as the trial itself goes, we've said that this is a fundamentally fair proceeding that are had in these cases, and it's in a State trial court in front of the judge, who's trained in the law.

The parties are allowed to submit evidence, and witnesses, and documents, and allowed to cross-examine, and redirect, and direct examination of witnesses, and there's nothing been suggested by the petitioner in here that these are not fundamentally fair proceedings and meet the requirements--

Unknown Speaker: No, but your rule would apply even if that were the argument.

Even if the petitioner was arguing the judge wouldn't let us put on any witnesses.

She still couldn't appeal.

Mr. Moore: --No, she could, in that regard.

This case involves, as was mentioned earlier... the claim here on the appeal is, it's not based on substantial evidence.

Unknown Speaker: No, I understand in this case, but if it were a case in which the mother claimed that the judge wouldn't listen to me, he wouldn't let me put on any evidence, and he entered his order without any evidence at all, she still couldn't appeal, even if she made those arguments.

Mr. Moore: You don't need a transcript for that appeal.

Unknown Speaker: Well, how can she establish what happened at that trial if she doesn't have a transcript?

Mr. Moore: The rule that requires the transcript in this particular case only requires the whole transcript when the issue is raised here.

But other than that, all you need is sufficient information to raise the issue that you have, and you can either do that by, in this particular case by agreement of counsel as to what happened, or potentially it might take one page of the transcript, when the judge refused to let her cross-examine witnesses, or submit witnesses.

Unknown Speaker: I thought the State statute required the full transcript.

Mr. Moore: No, only when the appeal is based on lack of substantial evidence.

Unknown Speaker: Ah, I see.

Mr. Moore: Then the court has to have all of it to make the determination.

Unknown Speaker: I see, but if the challenge is that the trial or the judge was biased, or something like that... well, but even then, I suppose you might need the transcript to establish that.

But you're saying if the error is one that can be established without a transcript, she could appeal.

Mr. Moore: Yes.

If it could be established without the transcript she could certainly appeal, and in other cases, as I said, it might not take but two or three pages of the transcript.

Unknown Speaker: The transcript is only required... apart from the practicality of her being able to establish bias, for example, without the whole transcript, she could claim bias and get an appeal without the transcript.

The transcript is only required by statute when substantiality of the evidence is at issue, right, sufficiency of the evidence?

Mr. Moore: That's the only time the rule or the statute says that--

Unknown Speaker: Okay.

Mr. Moore: --you have to have a full transcript.

Unknown Speaker: So she can go up without one for everything else, even though for some of those she may not win without the transcript.

I mean, as a practical matter.

You don't have to concede that.

Why doesn't that cut in favor of the other side?

I mean, it won't cost the State much money then.

I mean, in most cases she'll be able to afford the $6, and if she really couldn't afford the $6, I mean, if that was true, she really couldn't afford it, it costs the State $6, not a big deal.

I mean, so it isn't much burden on the State, almost no burden.

It means a lot to her.

Have a certificate of probable cause, say, weed out the baddies, you know, no claim.

What's the major problem for the State?

Mr. Moore: I think as a practical matter almost all of these appeals will be where they require the entire transcript, because they're based on lack of substantial evidence.

It would be unusual for a claim that a State trial court doesn't provide a fundamentally fair proceeding, based on the procedures used.

Unknown Speaker: Is there any proceeding in Mississippi in connection with an appeal where there would be a certificate of probable cause, at least by that name?

Mr. Moore: Not that I'm aware of, no, Your Honor.

Unknown Speaker: Are there other States that do not provide a free transcript to a poor person for a deprivation of parental status case?

Mr. Moore: I don't know specifically on that.

I know there are some citations in petitioner's brief about States that do.

I don't think they cite all of the States as doing that, though.

Unknown Speaker: And there's nothing short of a full transcript that could be a transcript of part, but Mississippi doesn't tape the proceeding, does it, keep it on audio tape?

Mr. Moore: No.

The proceeding would be taken by a court reporter.

Unknown Speaker: Yes, but that wouldn't exclude also having an audio tape.

But you're telling me they don't.

Mr. Moore: It wouldn't exclude it, but I would doubt if there are any court reporters still using audio tapes.

I don't know that.

I mean, there could be an individual court reporter somewhere that did that, but I wouldn't think so now.

The State's interest in this include other things beside the cost--

Unknown Speaker: Just one other question of Mississippi proceedings.

Is what happened here the norm?

That is, all the evidence comes in, and then the judge makes a kind of a boilerplate judgment, repeating the words of the statute, and says, I have found by clear and convincing evidence that this parent is unfit?

Mr. Moore: --I think the order of the judge in any individual case will be dependent... depend on that judge.

There's not any--

Unknown Speaker: Well, from your experience in the State, what is the usual?

Is this typical, what we've seen here?

Mr. Moore: --I don't know.

I haven't tried any of these cases actually in--

Unknown Speaker: How many circuit judges are there in the State of Mississippi, do you know?

Mr. Moore: --No, I don't.

There are 82 counties, but as far as actual numbers of circuit judges, I don't know.

I would point out that in... when the State is involved in actually prosecuting a termination, there are additional safeguards that take place prior to the filing of the petition in the chancery court, and all of those occur in the youth court, and involve at least four hearings, three of which are judicial in nature, at which the parent is allowed to attend with the assistance of counsel and participate, and that the rights are not terminated of the parent until there have been all of these procedural safeguards taken, and usually it's at least a year after the child has been taken out of the custody of the parents.

Unknown Speaker: So are you saying that when the other parent petitions to have a parent declared unfit, there's less protection than when the State does it?

The... that the petitioner in this case did not get the protection that she would have gotten if the State itself, rather than her former husband, had initiated the proceedings?

Mr. Moore: Yes.

The proceedings are viewed... when the State itself prosecutes a termination, then it's viewed as a little different, because what you're doing there is coming in and eventually terminating the right of the parent so that the child can be adopted by what ends up being strangers, nonrelatives, and it arises here because it's absolutely necessary that the State, the Department of Human Services go in and remove the child from the home because of potential abuse or--

Unknown Speaker: But you can remove a child from a home without depriving a parent of parental status.

Mr. Moore: --Well, it's not always done when the State does it.

It's when it becomes necessary.

There are several things that the State goes through with the... an analysis of whether or not it should be brought, obviously children that are taken out, that it's unfeasible to put them back in the home, some of them may be 14 or 15 or 16--

Unknown Speaker: But you were explaining from the point of view of the right of the petitioner why she is entitled to less process when it's her ex-husband than when it's the State that is trying to deprive her of parental status.

Mr. Moore: --Well, the State is simply set up for the State because of the unique situation that the State is in, so in essence more process is provided because of that particular situation, that the State is coming in and taking the child.

Unknown Speaker: Do I... I want to be sure I didn't miss something.

In that situation, does the State provide the transcript, when the State initiates the termination proceeding?

Mr. Moore: No.

Unknown Speaker: No, it still doesn't.

So... I don't... what is the difference between that proceeding and this in terms of State procedural protections?

Mr. Moore: Just that this is done in youth court before a... an action would be filed in chancery court to actually terminate.

There's no termination that takes place in the youth court.

It's only judging the status of the child and being able to take the child out of a bad situation if necessary.

Unknown Speaker: Well, in this case the complainant, the petitioner was already a noncustodial parent, was she not?

Mr. Moore: Yes, Your Honor.

Unknown Speaker: I mean, it wasn't as if the custody was taken away from her.

It already had been.

Mr. Moore: She had lost her custody of the children at the time of the divorce, and this was sometime later when the proceedings to terminate her rights were brought.

Unknown Speaker: But your friend says that that can be changed, whereas this can't be changed.

Now, is that accurate?

Mr. Moore: Well, certainly a parent could go back in and attempt to petition to change custody, that's true.

Unknown Speaker: Or modify the decree to provide for visitation rights, which might not have been... custody decrees are modifiable, is that not right?

Mr. Moore: Yes, Your Honor.

Unknown Speaker: And a deprivation of parental status is final, not modifiable.

Mr. Moore: Yes, the termination would be... I guess like any other civil case, once the time runs for asking the court to reconsider something, that it would be final, just like any other case.

It would be res judicata, probably, from a--

Unknown Speaker: I suppose the risk of error present in a case like this is that the trial judge naturally would be influenced by the best interests of the child, and therefore would tend to give custody to the adopting parents, and not apt to make detailed findings about unfitness of the mother whose rights are being terminated.

The termination is a condition precedent to the adoption in all these cases, I guess.

Mr. Moore: --The termination is precedent to the adoption.

Unknown Speaker: Yes.

Mr. Moore: I would disagree with what the trial judge would do, because I think trial judges take these things very seriously, and I don't think that they would terminate the mother's rights, regardless of the situation, unless they felt it was absolutely justified based on the evidence that's presented.

In conclusion, what the petitioner is apparently attempting to do here is create a vast new constitutional right and further federalize domestic relations law, and we submit that that shouldn't be done in the absence of clear constitutional violation, and we further submit that there's been no showing or evidence that a clear constitutional violation exists in this case.

Thank you.

Unknown Speaker: Thank you, Mr. Moore.

Mr. McDuff, you have 4 minutes remaining.

Rebuttal of Robert B. McDuff

Mr. McDuff: Thank you, Mr. Chief Justice.

Justice O'Connor, I believe it was in response to questions from you that the Attorney General's Office gave figures about the number of filings of termination cases in the chancery court, and those figures are at page 28 of their brief, but those figures are not in the sources they cite on page 28, and we have not seen any such figures about the number of parental termination filings in chancery courts or in the appellate courts.

The Mississippi supreme court does keep figures, and we've cited them in our brief, as have our opponents, on the numbers of custody appeals, of which parental termination are a subset, and in 1995 there were 10 custody cases decided by the Mississippi supreme court and another six decided by the intermediate court of appeals.

Unknown Speaker: Mr. McDuff--

Mr. McDuff: Yes.

Unknown Speaker: --what about divorce?

That's final.

It deals with status.

Should we apply the same rule to a divorce decree that you're asserting here?

Mr. McDuff: No, sir, and a divorce also is something actually that can be remedied in the future if people want to remarry, plus they can continue to have contact or not contact.

There's a level of freedom in the relationship.

Unknown Speaker: No, but let's assume it's not a no-fault divorce kind of State.

Your reason has to be established.

The other person doesn't want to remedy the divorce.

The person who's want it fully wants it.

If a State... I gather most of the States, maybe all of them now, have effectively no-fault divorce, but let's assume a State changes that and does not have no-fault divorce.

I guess we would have to apply the same rule to divorce, wouldn't we?

If the party unwillingly divorced wants to appeal, we would have to allow that appeal IFP.

Mr. McDuff: No, I don't think so.

I mean, I don't think that involves nearly the kind of termination of an intimate relationship beyond the control of the parent that you have, or beyond the control of the party involved that you have when a child is taken away against your will by State action.

Unknown Speaker: Well, I thought that was the rationale of Boddie, that divorce did.

Mr. McDuff: The rationale of Boddie, as I understand it, is that divorce, because it involves a marriage relationship, is very important, and because the State has an exclusive monopoly on it, that filing fees that freeze people out are unconstitutional, so I think there is a high status and an important interest here, but I don't think it comes to the kind of grievous injury that's done here.

Unknown Speaker: So cutting off a parental relation is a "fundamental" interest, and a right to get a divorce is high, but not fundamental?

Mr. McDuff: No, I didn't... no, I'm sorry, I don't mean to sort of do a gradation there, but in Boddie the people were married and wanted access to the State-created apparatus for obtaining a divorce, and this Court said they can't be frozen out by a certain amount of money, and when you're talking about appeal, I do think that is different.

Unknown Speaker: Well, but you have to do a gradation, or then Boddie is going to come out the same way as your case, isn't it, and we'll have transcripts in all divorce cases.

Mr. McDuff: No--

Unknown Speaker: So that I take it was the thrust of the Chief Justice's question.

Mr. McDuff: --Yes, and I didn't mean to sort of--

Unknown Speaker: And so I think you have to have a hierarchy, or a gradation.

Mr. McDuff: --And I guess that's what we're saying, is that because of the nature of the harm here as compared to whatever happens in a divorce proceeding, that this is the kind of thing where a transcript will be required and it might not there.

Unknown Speaker: On the theory that children are more important than spouses to the individuals involved, is that the theory that causes you to put this on a lower level?

Mr. McDuff: No, on the theory that a divorce decree, or the resolution of a divorce case, involves all kinds of complicated mechanisms that the parties have a right to effect in terms of their interrelationship, but here, the person's child is being taken away against their will, and we think it's a qualitative--

Unknown Speaker: Are you saying that Boddie is... or Boddie, I don't know how to pronounce it--

--It's two D's.

--is a different... however that comes out, it's a different case because those are the people who say, State, we want you to pay for our divorce, we want something from you, where here the woman is saying, please don't take my child away.

She's not coming to the court asking for anything.

She just wants to be spared from the State taking away her child.

Mr. McDuff: --That's correct.

Unknown Speaker: So the two cases seem to me quite distinct.

However you would come out in Boddie or Boddie, it's not what we're dealing with here.

Mr. McDuff: Yes.

Chief Justice Rehnquist: Thank you, Mr. McDuff.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 95-853, M.L.B. versus S.L.J. will be announced by Justice Ginsburg.

Argument of Justice Ginsburg

Mr. Ginsburg: This case concerns a poor person’s opportunity to challenge on appeal a court decree ending her status as a parent.

The petitioner, M.L.B. had two children, a boy born in 1985, a girl in 1987.

In 1994, on the application of M.L.B.’s former husband and his second wife, a Chancery Court in Mississippi decreed M.L.B., an unfit parent, terminated her parental rights, and approved adoption of the children by their stepmother.

The trial judge declared that the statutory requirements for parental status termination had been met but he did not specify concretely the evidence, facts, or precise reasons for his decision.

M.L.B. sought to appeal and paid the $100 filing fee but under Mississippi laws, she could not perfect her appeal without paying at once an amount exceeding $2300 for preparation of the record.

The law, just part of that cost was for a transcript of the Chancery Court proceedings.

The Supreme Court of Mississippi denied M.L.B.’s request for permission to appeal without pre payment of cost.

Mississippi Courts granted such applications only for appeals from two categories of judgments, criminal convictions and involuntary civil commitment orders.

M.L.B. tenders this question, may a state, consistent with the Eue Process and Equal Protection Clauses of the Fourteenth Amendment, render appellate review of parental termination decrees accessible only to parents who have the ware withhold to pay for a transcript plus other record preparation fees.

We reverse the judgment of the Mississippi Supreme Court and hold that Mississippi may not deny M.L.B. because of her poverty, her inability to pay for a transcript, access to appellate review to test the adequacy of the evidence on which she was judged unfit to remain a parent.

Our opinion surveys the court’s prior decisions and points.

We take up first appeals from criminal convictions including convictions for petty offenses, penalized by fine but not incarceration.

In all cases typed criminal or quasi-criminal in nature, our prior decisions hold that a state may not bolt the door to a poor person's appeal by withholding the record necessary for appellate review.

On the other hand, we next point out, in most civil cases, our prior rulings established that the state need not permit poor persons to appeal free of charge.

Today’s decision also reviews our case law recognizing that no ties are more precious than those binding parent and child, and that few decrees, also grave in their consequences as a court order permanently severing the parent-child bond.

Parental termination decrees, our prior decision acknowledged work a unique kind of deprivation unlike custody decrees, they totally destroy all legal recognition of a parent-child relationship.

We therefore distinguish M.L.B.’s case from the mind run of civil actions including other domestic relations matters and align it for appeal access purposes with criminal and petty offense cases.

The accusatory state action M.L.B. seeks defend off, we explain, should not be obscured by the label civil action where parental unfitness judications are barely distinguishable from criminal condemnation in view of the magnitude and permanence of the laws at state.

Justice Kennedy has filed an opinion concurring in the judgment; Justice Thomas has filed a dissenting opinion joined by Justice Scalia; the Chief Justice has filed a dissenting opinion joining all but part two of Justice Thomas’ dissenting opinion.