Boddie v. Connecticut

PETITIONER:Gladys Boddie et al.
RESPONDENT:Connecticut
LOCATION: New Haven County Superior Court

DOCKET NO.: 27
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 401 US 371 (1971)
REARGUED: Nov 17, 1970
DECIDED: Mar 02, 1971
ARGUED: Dec 08, 1969

Facts of the case

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.

Question

Did Connecticut’s fee requirement for divorce filings violate the Due Process Clause of the Fourteenth Amendment?

Media for Boddie v. Connecticut

Audio Transcription for Oral Argument – December 08, 1969 in Boddie v. Connecticut

Audio Transcription for Oral Reargument – November 17, 1970 in Boddie v. Connecticut

Warren E. Burger:

We’ll hear argument in number 27, Boddie against Connecticut.

Mr. LaFrance?

Arthur B. LaFrance:

Thank you, Mr. Chief Justice.

May it please the Court.

I am the counsel for the appellants in this proceeding which involves a direct appeal from the District Court for the District of Connecticut where a three-judge panel dismissed appellant’s complaint.

Appellants had alleged that they are welfare recipients who seek to divorce their husbands in the Courts of Connecticut, but could not afford to pay the court costs imposed by the State of Connecticut of roughly $60.00.

They further alleged that the Connecticut Court officials had refused to waive those costs.

Appellant sought an injunction on the basis that the fee statute was unconstitutional, requesting the District Court to order the Connecticut Courts to accept appellant’s divorce papers for filing and to arrange service of process.

Warren E. Burger:

When were these papers originally filed approximately?

Arthur B. LaFrance:

At the end of March in 1968 Your Honor.

The —

Warren E. Burger:

March 68 to now, I suppose we must assume they have not been able to accumulate $60.00?

Arthur B. LaFrance:

That is correct with at least five of them Your Honor.

As to two of the original named plaintiffs, their participation in this proceeding has been withdrawn.

Before appearing here today, I asked one of the people attached to the neighborhood office where I was formerly employed to check with the appellants to make certain that they are in fact still interested in this proceeding.

Because of the shortage of time, only four of the remaining seven were contacted, they are still married after a fashion and still emphatically undivorced and still unable to raise the fees necessary to initiate a divorce proceeding in Connecticut.

Warren E. Burger:

How much of a showing have they made with respect to their indigency if you wish to call it that.

And second has any showing then brought up to date from March of 1968 to now.

Arthur B. LaFrance:

With response to the first or in response to the first question Your Honor, the showing which was submitted to the Courts of Connecticut and to the District Court consisted of affidavits which appear in the Appendix in this Court indicating the family situation, the income situation, the economic responsibilities of the appellants and we would argue clearly establishing indigency at that time.

Now, we’ve never had an evidentiary hearing on the issue of indigency because this case was resolved in the District Court on the pleadings and for the purposes of this appeal and for the purposes of the District Court, indigency was conceded.

At the present time, there is nothing before this Court updating that showing of some two and half years ago.

I suppose if this Court were to hold in favor of the appellants, a remand would be appropriate and if that time as to any of the appellants in the case, the state would have an opportunity to challenge their indigency.

It is appellant’s contention that the conduct of the appellees has denied the Due Process rights specifically and particularly with respect to the right to petition for redress and grievances.

This is a right which appears in the First Amendment is incorporated into the Due Process Clause of the Fourteenth Amendment as reflected in the decisions of this Court such as NAACP versus Button, United Mine Workers versus Illinois Decision, Railway Train Man versus Virginia.

The right to petition as this Court has recognized, there’s a fundamental right as long ago as Chambers versus Baltimore on Ohio Railway.

This Court said that the right to sue and defend in the courts is the alternative of force in an organized society, it is the right conservative of all other rights and lies at the foundations of orderly Government.

Since this case was argued last year, two decisions of this Court have been rendered which I feel bear upon the position of the appellants, at least with respect to their Due Process argument.

I refer to Sniadach versus Family Finance and Goldberg versus Kelly.

Essentially, both of those cases held that before the property interest of a citizen can be impaired or affected by state action, a hearing must be a for due.

The appellants seek that very same hearing, and yet their position is more critical than that of the position of the appellants in Goldberg versus Kelly and in Sniadach because in this instance, not only have the appellants been denied a prior hearing which was the issue in Sniadach and Goldberg but they have been denied any hearing at all.

Arthur B. LaFrance:

They have simply been denied the opportunity to seek a divorce in the Courts of Connecticut.

For this reason, appellants maintain their right to Due Process has been denied of equal importance is the other aspect of our argument which relates to the right to Equal Protection as guaranteed by the Fourteenth Amendment to the United States Constitution.

As long ago, as 1941, Mr. Justice Jackson wrote in Edwards versus California that the mere state of being without funds is a neutral fact constitutionally and irrelevant, like race, creed or color.

More recent decisions of this Court have indicated that poverty, like race is a suspect criteria, and when a state discriminates among its citizens upon the basis of poverty, then it must make the same showing to justify that discrimination as would be required if the discrimination were racial.

Mr. LaFrance, let me follow through a little bit on your Equal Protection argument.

Suppose instead of wanting the divorce, your clients wanted to get married and the marriage license worth $3.00.

Would you say that Equal Protection demands that they be given the marriage license without payment of the fee?

Arthur B. LaFrance:

I would Your Honor, if a demonstration were made that in point of fact, they could not afford that fee, and the reason is simply this; although a dog license for example may not affect the matter of constitutional import, this Court is said that marriage appropriation are basic civil liberties of man, and I refer to Loving versus Virginia, Skinner versus Oklahoma and Griswold versus Connecticut.

And so, the appellant’s position would be that whenever a fee is attached to a state franchised activity which is of constitutional magnitude, then that fee must be waived on behalf of an indigent.

Well then, you drawn no distinction between the need for a divorce and the desire to marry?

Arthur B. LaFrance:

That is within limitations, correct.

We’re primarily concerned or we’re particularly concerned about divorce in this case because it carries with it the right to marry or re-marry I should say.

The right to procreate with someone other than the present spouse, so that in the context of this case, divorce and marriage are very closely linked.

Does your record show in any way that re-marriage was contemplated by the parties or any of them?

Arthur B. LaFrance:

No, it does not Your Honor.

Legal structure of Connecticut and of most states is such that divorce carries with it the right to re-marry.

Then, let me ask the next question which you indicated.

Would you carry your Equal Protection Clause to a — the fishing license or dog license?

Arthur B. LaFrance:

No, I would not.

At least —

And draw the distinction where?

Arthur B. LaFrance:

I’m sorry.

You draw the line and where?

Arthur B. LaFrance:

I draw the line with respect the constitutionally protected interest.

For example, we are here and not talking simply about divorce.

We are here talking about the right to access to the Courts.

The First Amendment speaks about this specifically.

It says nothing about fishing licenses or dog licenses.

You asked me a moment ago about marriage.

This Court has said that marriage is a basic civil liberty.

Arthur B. LaFrance:

Taking that statement as a given at accepting it, then I would argue further that conditioning a basic civil liberty on the ability to pay for it is an impermissible state regulation of constitutional rights.

Would the right to fish in a lake of Connecticut as a civil liberty right, if there are any lakes in Connecticut with fish left in it?

Arthur B. LaFrance:

There are some.

I would say that it is a right.

I suppose the distinction which becomes important is the distinction, let us say, between Shapiro versus Thompson on the one hand, and Williams versus Dandridge on the other.

In Williams versus Dandridge, maximum grants were upheld in welfare cases by this Court.

In Shapiro versus Thompson in welfare cases, residency restrictions were stricken down.

The difference was not that they weren’t rights or interests in both cases, but that the right in Shapiro versus Thompson was deemed to be a constitutional right, the right of free travel in the United States.

Whereas in Williams versus Dandridge, the majority of this Court concluded that although there were interests being affected by the state’s economic regulation.

They were not of constitutional dimension and as a consequence, the showing by the State of a reasonable purpose for regulation was sufficient to justify maximum grants.

I don’t know if this is responsive, but it would be the distinction which I would draw for example between access to the courts and the fishing license.

Thurgood Marshall:

Mr. LaFrance, what do you do about man who wants to sue to prevent pollution of the air by the electric company in New Heaven?

Would he have to pay fees?

Arthur B. LaFrance:

Not if he is indigent Your Honor.

Thurgood Marshall:

But you want that in the same indigent protection, you have a criminal prosecution.

Do you happen o go that far in this case?

Arthur B. LaFrance:

I don’t believe so.

We at least want the same protection that is afforded in criminal cases as to the opportunity for a hearing.

We would not go beyond that and maintain that the criminal protections for example, involving appointed counsel are necessary in civil cases, and there are number of distinctions which are relevant.

For example —

Thurgood Marshall:

Well, suppose the person is filed for air pollution and some legal aid society takes over the lawyer part, it doesn’t pay his fees, and then he wants to appeal and takes care of that.

Arthur B. LaFrance:

I’m sorry Your Honor, I didn’t understand the question. With respect to the appeal, who would take care of the —

Thurgood Marshall:

Cost.

Arthur B. LaFrance:

If the State could make a showing that the costs were necessary to maintaining the appellate system.

Then, I suppose as a matter of Equal Protection that it could require appellate cost of an indigent.

Thurgood Marshall:

I personally don’t know of any system that court cost take care of the Court.

Arthur B. LaFrance:

The –

Thurgood Marshall:

They never do.

I mean, they always need that money.

Arthur B. LaFrance:

I agree.

Arthur B. LaFrance:

One of the positions which the appellants have maintained in their brief is that the justification offered by the state for imposing cost on indigents simply is inadequate for the burden that results.

For example, in terms of producing revenues, it doesn’t make sense to require that revenues be generated by the poor who simply are unable to produce them or to —

Thurgood Marshall:

It make much more sense with me, if you could draw a line other than saying that in all civil actions, the person without income can file without payment of fees, which is a pretty broad hump of litigation.

Arthur B. LaFrance:

And yet Your Honor in roughly half of the states, the very same type of informa pauperis litigation which we are arguing for today is provided as a matter of statute, and yet those states and their court systems don’t seem to be crumbling under the burden.

Potter Stewart:

In all civil actions, typically tort, contract?

Arthur B. LaFrance:

I have not surveyed the exact dimensions of these provisions, but at least as to some of the states, the door is that wide open, that is an indigent may simply file an action.

Potter Stewart:

Without what kinds of fees at all.

Arthur B. LaFrance:

Yes.

Potter Stewart:

Oh.

Thurgood Marshall:

Supposing with this, supposing sue for million dollars and gets million dollars, can the state get his $20.00 file fee out of that?

Arthur B. LaFrance:

I would think that it could do that.

Thurgood Marshall:

I’d hope so.

Warren E. Burger:

Well, they have you interrupted counsel. You spoke in terms of a right that comes by way of the franchise.

Would you say that a man who seeks of license to practice to carry on the business of being a barber of an electrician or a plumber, one of the license activities that have it substantial license fee or some due up to a $100.00 or more?

It’s in the same category as your client here?

Arthur B. LaFrance:

I don’t think that he is Your Honor.

Now, as a matter of Equal Protection —

Warren E. Burger:

Or isn’t he — isn’t there an inherit right, constitutional right to engage in an occupation if you can pay the fee?

Arthur B. LaFrance:

There certainly is that, but they may also be a right on the part of the State.

Legitimately to regulate certain types of activities and they may also be a right on the part of the state to impose licensing fees, examination fees, investigation fees, and the like.

I’m thinking specifically of the $200.00 I’m going to have to be paying to the Arizona Bar Association within the next few months.

But the situation here is dramatically different because these appellants are seeking to exercise a right which specifically protected by the constitution which has body in the First Amendment.

The right of a plumber, I suppose is assured by the Equal Protection Clause and the Due Process Clause is against arbitrary or capricious discrimination, but the right of a person to go into Court is as fundamental as the right of a person to vote or the right of a person to exercise free speech or engage in political activity.

And as to these before the state can impair these rights, it must demonstrate a compelling necessity for the regulation which it seeks to impose.

Warren E. Burger:

Well, does not the state in its capacity as parens patriae, if not on broader grounds have a deep interest in regulating the termination of the married state?

Arthur B. LaFrance:

It certainly does that Your Honor.

But in this instance, the regulation involved, imposing a fee upon indigents.

Warren E. Burger:

Well, it’s —

Arthur B. LaFrance:

Does not —

Warren E. Burger:

Impose on everyone, isn’t it?

Arthur B. LaFrance:

Yes, but the only aspect of the fee system which is being challenged here today is that which operates against indigents and bars them from the courts.

The regulation which is involved is not particularly well calculated to save the family, since it applies to all types of litigation.

In addition of course, the courts of Connecticut have spoken with respect to divorce.

They have said that divorce is permissible, is authorized as a matter of state policy if grounds are shown, and yet, the state has gone farther and said we don’t mean that’s with respect the poor because as to them, we attach a further condition.

The condition that they cannot get a divorce unless they somehow aggregate their condition of poverty.

The Court of Appeals for the DC Circuit in Parks versus Parks cited in our last brief which we filed with this Court noted that, if in the District of Columbia in addition to the requirements which Congress has imposed for showing, for obtaining a divorce.

If there were a further requirement that only the wealthy or the affluent could obtain divorces.

Then there would be issues of serious constitutional dimension raised, and I submit that this is the case which was contemplated by that Court.

Warren E. Burger:

Well, that hypothetical really isn’t worth very much because there is no state in the country that ever had any such a statute it has.

Arthur B. LaFrance:

Except that the effect —

Warren E. Burger:

That’s the negatively, the negative impact is what you’re talking about.

Arthur B. LaFrance:

Yes, I am Your Honor.

In the things —

Warren E. Burger:

How are these — suppose we agreed with you and decided the case the way you wanted to decide it, and the week afterwards, someone comes in and wants to get a divorce and they say now, I have plenty of money.

But if you don’t let me file my action without the payment of the fee, you’re denying me Equal Protection as compared with Gladys Boddie and the other people involved here.

Arthur B. LaFrance:

I suppose that if that person would like to change places in light with Gladys Boddie.

She would be very happy to meet and then change place with him.

I don’t mean that entirely facetiously, because I don’t believe there is an obligation upon the State to equalize all of the inequities of life.

But what we do contend here is that the State, when it creates a right or in this instance, when it forces a person to come to it to resolve that person’s affairs.

It cannot create new inequities.

It cannot impose requirements which I suppose life itself does not impose.

What we have here is a situation like that in Williams versus Illinois, decided in June of this past year, where a person who could not pay a fine was required to work it off in the State of Illinois.

And this Court said that on its face, that’s a perfectly reasonable equitable statute, except that in operation for the poor, it met an invidious discrimination.

Now, I suppose that a prisoner in Illinois might appear someday before this Court and make the same argument that could be made with respect to Gladys Boddie that is that the indigent are receiving preferential treatment, but the thrust of this case is not that.

It is simply that the State cannot discriminate against the poor in structuring its legal system.

With respect to the Due Process and Equal Protection arguments which appellants have submitted to this Court.

I suspect that the comments I’ve made by this time are at least a survey of our position.

There’s one other aspect of our position which I would like to turn to, and that is the arguments or that is with reference to the arguments which the State has put forward to justify its fee system.

The fee system does not deter frivolous litigation or if it does, it does so only with respect to the poor and as to them, it deters all litigation.

It does not provide revenues, at least not from the poor because they aren’t able to pay the fees.

Arthur B. LaFrance:

It does not particularly or at least measurably conserve revenue or facilities or services in the court system.

And even if it did, it has never been held or believed to my knowledge that that cost of constitutionally imposed burdens relieves the states from fulfilling those — their duties under those burdens.

In Shapiro versus Thompson, this Court said that we recognized that if State has a valid interest in preserving the physical integrity of its programs.

But a State may not accomplish such a purpose by invidious discrimination between classes of its citizens.

It could not for example, reduce its expenditures for school by barring indigent children, and yet the State of Connecticut is attempting to reduce its expenditures for courts by barring indigent litigants.

We wish to emphasize that it is not enough for the appellees to show a mere rational basis for the fee system which operates in the State of Connecticut.

They must show more of compelling necessity for imposing court fees upon the poor.

This Court in Shapiro versus Thompson which I just quoted from said in essence that only a compelling necessity could justify discriminating among citizens on suspect criteria such as poverty or race, and discriminating in a manner which affects important rights such as the petition for redress of grievances.

We ask this Court to reverse the court below to give the relief which appellants seek.

And in so doing, we have maintained in the last brief which we submitted to this Court that a holding in favor appellants can be narrowly based and narrowly limited in its implications.

This case involves a specific constitutional guarantee, the right to petition for redress of grievances.

It involves litigation concerning matters of constitutional magnitude marriage appropriation.

Further, it involves matters which cannot be settled privately.

The State of Connecticut has said to these appellants that they cannot resolve their affairs privately.

They must go into state courts to seek the relief they need, and yet at the same time, has barred them from those Courts.

A holding emphasizing these factors, for example, would not compel a later holding that counsel be appointed in civil cases or a later holding that fees for the use of golf greens in a public golf course must be waived for the poor.

A useful analog for this case is Goldberg versus Kelly where this Court considered the meaning of Due Process in welfare termination cases and concluded that a hearing is the essence of Due Process.

But that appointment of counsel may not be required.

In conclusion, then we ask this Court to grant the relief for appellants —

Hugo L. Black:

I don’t quite get that reason.

Whether you draw into distinction, you draw there.

Maybe the party so indigent that can’t hire a lawyer for themselves.

Arthur B. LaFrance:

That is correct Your Honor, and I would suppose that in many if not most aspects of civil litigation.

It would be useful perhaps necessary to have an attorney.

But a holding in this case would not compel a later holding that counsel must be appointed in civil cases.

Hugo L. Black:

Why would they not?

Arthur B. LaFrance:

Because in this case, we are relying upon the specific First Amendment guarantee of the right to petition for redress of grievances.

There is no such —

Hugo L. Black:

You might be barred form it as successfully by not being able to hire a lawyer as by not being able to pay the fees.

Arthur B. LaFrance:

I take it that the First Amendment and speaking about the right to petition is speaking about access to the courts or to Government.

Arthur B. LaFrance:

It would always remain true that the fruits of that access inherently will be unequal.

Now —

Hugo L. Black:

Well, if it’s unequal wouldn’t be anyway to equal that?

Arthur B. LaFrance:

Perhaps as a matter of Equal Protection under the Fourteenth Amendment, this Court might want to go farther and to hold that for example, counsel must be appointed in certain types of civil cases.

Hugo L. Black:

Why not they not be influenced to go far on that eventually on your argument to say that the courts are necessary to civilized people.

You got to have them in that Government?

Therefore, they must supply to all without regard to their race, color or amount of money they have.

Arthur B. LaFrance:

I would think a holding of that nature as to courts would be perfectly appropriate.

Now, when I say that, what I have in mind are the kinds of considerations this Court had in mind in Goldberg versus Kelly in saying that Due Process must be afforded at some point by the State whether it be in what is called an administrative hearing or what is called the Court.

But the functions of Courts must be performed and they must be performed equally at least open equally to the rich and then the poor alike.

Hugo L. Black:

But the only way to do that unless you see that they deny Equal Protection to the rich.

It would be to say that the court from us we owned the all to prosecute or defend that claim whether they have money or do not have money.

And they must pay the cost if they are in it.

Arthur B. LaFrance:

And they must pay the costs if —

Hugo L. Black:

Cost, if they have cost imposed, all.

It seems to me that I can’t say your argument would take this.

I’m not saying as right or wrong, I’m just asking you.

Arthur B. LaFrance:

I don’t think that argument carries that far, if I understand you.

Hugo L. Black:

Not yet.

Arthur B. LaFrance:

Correctly.

Well, the argument which I’m making today, I don’t think compels anyone to go that far anytime.

Hugo L. Black:

Just as far as your clients.

Arthur B. LaFrance:

That is correct.

Hugo L. Black:

Perhaps a good lawyer like –.

Arthur B. LaFrance:

Thank you.

Warren E. Burger:

Mr. Cannon?

Raymond J. Cannon:

Mr. Chief Justice and may it please the Court.

To understand what’s really at stake in this case perhaps it’s rather outlined briefly the procedures followed in divorce actions are civil actions in Connecticut, all civil actions.

First of all, of course, the client sees the attorney.

The attorney discernments whether it has a cause of action and draws a writ which is delivered to the officer to make service at the expense of the client or and then the officer returns the writ to court.

Raymond J. Cannon:

At that time, the statute comes into play, and says the clerk for the Court shall charge $45.00 for entering all civil causes.

That’s the statute.

To accomplish the relief sought by the plaintiffs in this case.

It is necessary that some provision also be made to pay these auxiliary costs which are incident to the divorce cases.

Very often there’s expensive advertisement or publication particularly when the defendant is absent from the state.

Now in this complaint, another thought we must bear in mind, it seems to me.

In this complaint, the only plaintiffs are women on welfares.

They are not poor people generally.

There’s thousands of poor people as everyone knows who are working their head’s off to try to make a living in case that they’re only together and resent or check on the welfare.

And that class of people who’s entitled of relief as this well as these people, if they are entitled to relief.

At presently, the court raised the thought, what has been done since the last time we were here?

Presently, we find all inability, welfare women or other poor people to get divorce cases, divorce actions.

There are as plenty of them handled by the legal assistance association.

A great number of them are being handled.

We try to get some figures from them through the clerk of the court but they weren’t supplied.

Warren E. Burger:

Doesn’t Connecticut apply furnished on application, the filing fees for divorces, for people who are unrelief?

Raymond J. Cannon:

No, Your Honor.

We do not have any general in forma pauperis statute.

We have other situations where no court fees are charge, but there not in forma pauperis statutes.

They apply to everyone regardless of his status.

There is this legal services program which we mentioned in our brief before which has been initiated and by HEW and the local welfare department is an experiment being carried on in five states in the union.

Connecticut happens to be one of them.

It’s a legal service organization in the towns of Meriden and Southington and Wallingford and that’s —

Warren E. Burger:

That would take care of the problem if Mr. Justice Black was inquiring about, that it doesn’t reach the question of filing fees, the $45.00 or $60.00, does it?

Raymond J. Cannon:

Well, if the Sheriff’s fee – there’s no direct state action in the Sheriff’s fee. —

Warren E. Burger:

Whether the amount of the fee here is $45.00.

Raymond J. Cannon:

$45.00 is what goes to State of Connecticut as an entry fee.

Warren E. Burger:

Yes, well now —

Raymond J. Cannon:

And the statute provides —

Warren E. Burger:

The legal aid doesn’t supply that, does it?

Raymond J. Cannon:

Yes, they do and so is legal assistance.

Connecticut contributes —

Warren E. Burger:

If they do, why are here.

We all of it, would you?

Raymond J. Cannon:

I don’t know.

At the beginning, maybe the legal assistance didn’t’ pay all the fees.

They don’t pay them now.

Warren E. Burger:

But specifically, do they pay the $45.00 we are here talking about if they ask for it?

Are you –

Raymond J. Cannon:

I understand so, but depending upon the judgment of the Director of the legal aid assistance.

He in his discretion according to their setup can determine which cases have the most significance, and accordingly, they allot their money that they collect from the federal Government to State of Connecticut, another charitable organizations to pay the cases which in their opinion have priority.

There’s the other —

Warren E. Burger:

Well, since your friend and you are both here on a constitutional issue as your friend is posed on the constitutional issue of no small importance.

Is there any possibility that the petitioner has not exhausted her administrative remedies, if you could call on that?

Raymond J. Cannon:

Well, –

Warren E. Burger:

In this Court to decide is a constitutional matter that the fee is to be waived?

Raymond J. Cannon:

The difficulty in that regard, it seems to me Your Honor please is that these are not State agencies, strictly speaking.

A legal aid assistance association incorporated under the State of Connecticut pursuant to federal legislation which recognized and advocated that these legal assistance association to be formed in conjunction with — and supported by the local bars associations to provide legal services for the poor.

Hugo L. Black:

Is any of its supported by the public?

Raymond J. Cannon:

Pardon me?

Hugo L. Black:

Any of them, one is supplied by the public, by the State or the Government?

Raymond J. Cannon:

Oh, yes Your Honor.

There’s money supplied.

I have the 1968 article, certified article with me.

Hugo L. Black:

Are these people effectively barred before they know?

And if they can get the money and had the money if there are public or private agencies available to supply these fees.

Are they really effectively barred if this is a real controversy or not?

Raymond J. Cannon:

Well, it’s our opinion that they’re not effectively barred and they are a lot of women in the divorce courts.

Hugo L. Black:

Why –

Raymond J. Cannon:

It’s not in the record, but I can give you court assignment here on September —

Thurgood Marshall:

Why you say they are not barred?

Raymond J. Cannon:

There’s the legal aid and the legal services programs; two different programs, each paying entry fees, each pay for shares.

The legal aid and the legal aid services is a separate program just to initiate the writ gotten on the floor since we argued it last time.

The first three or four months when that was organized in the Meriden and they operate entirely different way, than the legal aid assistance association.

They are not a corporation, but they got a contracts with the local bar associations.

And they have a director, a case comes in and it’s assigned to some attorney who has previously indicated that he will accept these cases, and the legal aid services program pays this attorney a modest of $16.00 an hour plus the cost of expenses.

And in Meriden and Wallingford and Southington, there was only one lawyer out of the whole three towns which comprised of our population of 75,000 to 100,000.

I understand there’s only one lawyer who didn’t signify that he would accept to work along with this program because of age or infirmity or ill health for some reason.

Byron R. White:

It’s a private organization?

Raymond J. Cannon:

It’s a public organization, but —

Byron R. White:

Not State supported?

Raymond J. Cannon:

It is state supported though the welfare department.

Thurgood Marshall:

And federal and —

Raymond J. Cannon:

And federal.

Both of these programs are federally financed.

Thurgood Marshall:

Mr. Cannon, as to these plaintiffs named in this case.

You say they can get $45.00 for the purpose of filing this lawsuit or not?

Raymond J. Cannon:

They have to say with this proviso Your Honor please.

Thurgood Marshall:

Sir?

Raymond J. Cannon:

The country (ph) fees that are paid by the legal assistance association.

Mr. LaFrance’s client or he formerly was with the legal aid.

He hasn’t been with them for over a year or more.

It was Mr. Danford, the Director, who determined what fees should be paid in what cases.

Thurgood Marshall:

You’re not saying that these people got the $45.00, of course?

You’re not saying that?

Raymond J. Cannon:

No, no, no, I don’t.

Thurgood Marshall:

You’re not saying they could have got that, are you?

Raymond J. Cannon:

I’m not saying they got it.

I don’t know why it was refused to him.

I don’t know why —

Thurgood Marshall:

Was it refused?

Raymond J. Cannon:

Oh, no.

I wouldn’t make that claim.

Thurgood Marshall:

What is your claim?

Raymond J. Cannon:

It was refused not by the legal aid; it was refused by the court, the State of Connecticut because —

Warren E. Burger:

When you say refused, you mean the waiver of the entry fee was refused, is that it?

Raymond J. Cannon:

That’s right.

Warren E. Burger:

But you didn’t —

Raymond J. Cannon:

I don’t mean to say —

Hugo L. Black:

You looked up the regulations of HEW of the Health and Education Department of the Federal Government on this?

Raymond J. Cannon:

I have been made more or less familiar with them indirectly on the legal services program.

Hugo L. Black:

Do they require that money be given to the indigent to conduct necessary lawsuits or do you know?

Raymond J. Cannon:

No, the program is not given directly to the welfare recipient.

Hugo L. Black:

Who’s it given to?

Raymond J. Cannon:

It is given to the welfare department.

If a welfare client wants legal services regardless of the nature, divorce or anything else.

Then, they have two attorneys who are on their own panel.

They made their own salary.

Hugo L. Black:

And supply them to the indigent?

Raymond J. Cannon:

They are free for the indigent.

But then, there are additional services that if they want other services or the two people assigned to the particular job or rendering legal services to this organization.

Then, the lawyers who have subscribed as being willing to take this cases, the director forwards the case to one of these lawyers.

So —

Hugo L. Black:

He gives them a small fee, don’t they?

Raymond J. Cannon:

Yes and pays —

Hugo L. Black:

That’s what that amounts to but they do get a lawyer?

Raymond J. Cannon:

That’s right.

They get a lawyers and they get their fees paid and they get all kinds of problems and —

Hugo L. Black:

Government and the state contributes to the fund?

Raymond J. Cannon:

That’s correct Your Honor.

Potter Stewart:

The problem in this case is that this was decided on the motion to dismiss and everything alleged in the complaint was taken to be true by the three-judge District Court very properly.

And it assumed now, the allegations were true and then granted the motion to dismiss the complaint.

But that complaint was supported by affidavits, just take a sample one appearing on page 11 on the record.

Affidavits sworn to under oath in which the appellant (ph) says among other things that their welfare benefits from the State of Connecticut do not include an allotment for legal and court fees.

Now, there are several other affidavits containing the same or similar statement.

And that appears to be true, at least just sworn to under oath and for familiar grounds of practice and procedure and pleading on the motion to dismiss the complaint.

All of those allegations were assumed to be true by the District Court properly.

Raymond J. Cannon:

That is the —

Potter Stewart:

That’s the reason, we have no evidence in this case.

We simply have the allegations of a complaint and a motion to dismiss, which was granted?

Raymond J. Cannon:

We will admit that.

We don’t argue that fact.

Potter Stewart:

What’s the point of peeping in to these extra curricular, extra records?

Raymond J. Cannon:

Well, I thought the Court — that the situation is changed materially in the last couple of years.

Hugo L. Black:

Well, I’m interested in it.

I asked the question.

I’m interested in it for this reason.

We should not decide the case of this wide importance on a great constitutional question.

If as a matter of fact, provisions are already made by the Government to take care of the lawyer, if they had to have —

Raymond J. Cannon:

Well Justice Black, I have spoken in the first instance about the legal aid or service which is an experimental problem.

It’s in the second year.

It’s a pilot program.

As I understand it, it’s designed to determine whether the Federal Government will go deeper into this, provided different kinds of service in the legal aids or adopt some other made.

That’s what I understand the legal aid service is.

And there is only one community or three communities being handled by the legal aid.

It’s a new program of the federal — of HEW.

But prior to that time, this legal aid assistance corporation was organized back in ’64, I believe, and they are in turn financed by the Federal Government, the State of Connecticut, The Ford Foundation, the Maya Foundation, and other charitable contributions.

So, here public monies are charitable monies, and they have given them to him for certain purpose.

And they ended the year in 1968 with a substantial sum and if these people made application for divorce during that period.

This legal aid assistance had the money to pay for these and shares and entry fees during that period.

Raymond J. Cannon:

And it must be a fact that others get in to Court.

The clerk of the superior court at my request didn’t have the figures, but he requested to aid from assistance from the legal aid assistance to give him the figures, but we didn’t get them.

I don’t know why.

Well, if the state has failed to raise a defense which might be a defense, even if its own facts of course, we don’t have to decide or live with it, could be sent back to the state court in some proceeding so that they could look up and see whether or not these people can get their divorce money from the state or from the Federal Government.

Raymond J. Cannon:

Well, may very well be that, that would be the problem or action to pursue, but we attacked —

Hugo L. Black:

I should think, it be a problem of the state to raise all the defenses it has.

One of them being that you’re not stating the fact when you say, you do not have the money and can’t get it because there is provision made for it in the federal and state contributions joined.

Raymond J. Cannon:

Well, maybe I’ve confused the Court.

The state has no appropriation.

Hugo L. Black:

I understand that.

Raymond J. Cannon:

But, it gives executive —

Hugo L. Black:

Even the federalism and the state has.

Raymond J. Cannon:

It makes a contribution to these two organizations.

Hugo L. Black:

Then they knew where the money comes from.

If the people can get it to conduct their divorce cases, then Connecticut — we should not branch out a plan, enter decision on the constitutionality which practically owns us away for paying the use of all for all indigents and all of these courts of the nation.

Warren E. Burger:

Mr. Counsel, I’m afraid I led you into this by my question as to whether or not the petitioners here had exhausted appellants I should say, the appellants here had exhausted all of their available remedies whether administrative or otherwise.

But you tell us now that situation has developed considerably since the action was originally started.

Raymond J. Cannon:

That’s my understanding of it from the best authority I know and that in the audit of this plaintiff in 1968.

Warren E. Burger:

If it develops, if it develops that through the welfare program of the State of Connecticut as it now exists, whether the money comes all from Connecticut or partly from the Federal Government and partly from the State, and if it that program would advance to persons in posture of Mrs. Boddie.

The $45.00 to file to make the entry fee payment then, would there be any constitutional question for us to decide?

Raymond J. Cannon:

I think not from — there would be no live constitutional program.

You think that we can get that information by affidavit, but we get cooperation if the number of people and so forth from this legal aid assistance.

Byron R. White:

Mr. Cannon, putting it in another way, I think what we’re concerned about is whether today, Mrs. Boddie and her co-plaintiffs are barred from the Connecticut courts with respect to their divorce actions.

Now, it maybe that Mr. LaFrance is the one to answer this question and not you.

But I think from the indications from the bench, this is a vital question at this time and when Mr. LaFrance gets up again, I’d like to know his answer to those questions.

Raymond J. Cannon:

Well, if you may, it may please Your Honor, Mr. LaFrance has been absent for all due respect to Mr. LaFrance from the state for sometime, but I made the inquiry myself as to how many of these plaintiffs, since the action was instituted have filed divorce cases.

There are two.

One was withdrawn I think.

Mary Anne Dochures filed for divorce in March 1970.

Her lawyer is Jonathan E. Silver. Jonathan E. Silver is under staff of the Haven Legal Assistance.

Raymond J. Cannon:

I’m I correct?

And Mrs. Perez filed her return before we were here or her divorce application before we came to Court the last time and is still on file.

But she’s represented by Atty.

Gallagher and I don’t know whether he is employed by the New Haven Legal Assistance.

The legal aid services of Southington or he is an independent attorney.

Warren E. Burger:

But it would make any difference if in the meantime, she’s got her $45.00 entry fee paid from some sort.

Raymond J. Cannon:

She’s in court.

Warren E. Burger:

She’s in the court and she has no case any longer.

Raymond J. Cannon:

That’s the only two I know of.

And I was informed that they some — if they are possibly capable of raising the money paid to the legal aid by installments.

Otherwise, they use their own funds that they get from other sources.

Potter Stewart:

Mr. John Cannon, right of outset of his argument, Mr. LaFrance said that he satisfied himself by investigation that at least with respect to five of these plaintiffs, these cases were not moot.

And I took that as a professional representation that these people did not have the money, the $45.00 to pay the filing fee.

And furthermore, may I point out that the State of Connecticut, your client, when it filed a motion to dismiss this complaint, admitted every allegation of the complaint.

That’s what the motion to dismiss does.

Raymond J. Cannon:

That’s correct Your Honor.

Potter Stewart:

And that you know, it surprises me that you’re taking such a different posture now that you’re here in this Court.

Now, you’re beginning to deny the allegations of the complaint.

The place to do that is in the District Court.

Raymond J. Cannon:

I didn’t mean to deny the allegations and complaint.

I misunderstood apparently the questions raised as to what —

Potter Stewart:

I thought you don’t —

Raymond J. Cannon:

That at this plaintiffs are at denial in year-and-a half since this case has been standing.

It is our claim of course, constitutionally or on the merits that although 23 states, for example, have in forma pauperis statutes.

Two of them do not apply to divorce actions.

One state allows divorce actions for women only and I don’t’ remember now what the other state could apply.

But in all of these cases and including the federal proper statute 281915, it’s within the discretion of the court as to whether to allow a plaintiff to pursue in civil action, a case without payment of court fees.

The court in this recent case in Washington DC, Harris — there were two statutes.

One is general statute allowing residents of Washington DC to secure divorce action as general sessions court I believe it was.

And then the in forma pauperis statute 281915.

Raymond J. Cannon:

In that case, the court didn’t get into the constitutional acts features but it reconciled the two statutes and said that it is much as 281915 did not exclude the divorce cases.

Then the plaintiffs could proceed under in forma pauperis regulations.

Now, divorce as, it is far furhter claim trial further claim that divorce is not a matter of fundamental right.

It’s not within the framework and can man of the Constitution.

We get notations like Goldberg and Sniadach and other cases involved in Due process, although, there are civil factors involved.

They are to my opinion nevertheless rights, the one wages.

Wages is a — person who is more dependent about his wages every week.

As a general rule then if a person who has money in the bank.

There’s a distinct difference there and to deprive and attach wages is as the court said a brutal blow, but wages incidentally haven’t been attach in Connecticut for years and years.

And we got into the other cases on Equal Protection and so forth.

Equal Protection of life, liberty and property.

The Equal Protection has to — the item under consideration has to attach to one of those factors.

The item for liberty or property.

In Goldberg case of course, it was liberty that was Due Process.

But we have submitted our argument in the first brief.

We have now relying on furthermore on the Dandridge versus Williams’s case which is the reduction of the maximum welfare benefits due to families of over five or six was decided on Equal Protection, and I think that case fits very well into this case.

Assuming it is, it’s — there’s a rationality behind the procedure adopted by the State.

That is that it’s reasonable to expect that persons use in the courts will pay some of the expense of maintaining.

That is done in every state in the federal state court and then the federal courts as well in this country as far as I know.

Warren E. Burger:

Mr. Cannon, I did not understand you to be changing your position in any essence of not in terms of not standing on the posture pleadings when the case came here.

But in the response to my questions and others, you have indicated that the situation may have change since this litigation started.

Then that there may now be publicly supported agencies within the State of Connecticut who would supply the $45.00 and that line of questioning was pursued I think by all of us with respect to the basic proposition that Mr. Justice Black suggested to you that if there is any other solution.

We do not reach large constitutional issues.

Raymond J. Cannon:

The factual situation, I’ll have to admit this that the factual situation which you used today had existed when we filed a motion to dismiss, but we haven’t filed a motion to dismiss.

Warren E. Burger:

Very well.

Raymond J. Cannon:

But we filed a motion to dismiss.

Probably we had a lot of cases from this Haven Legal Assistance Association.

Thurgood Marshall:

But as of right now the Mrs. Boddie or anybody else had the $45.00?

Raymond J. Cannon:

I couldn’t answer that.

I’ll have —

Thurgood Marshall:

But do you deny it?

Do you deny that she’s unable to put up that $45.00?

Raymond J. Cannon:

She personally, I will concede that she is probably unable to put up the $45.00.

Thurgood Marshall:

So?

Raymond J. Cannon:

Because it’s the —

Thurgood Marshall:

That’s the case we have now?

She is in the same position she was then.

Raymond J. Cannon:

That is correct.

Because the welfare department does not give welfare recipient direct money for court.

Thurgood Marshall:

Was anybody else given that $45.00 to file this action?

Raymond J. Cannon:

It’s my understanding they do Your Honor.

Thurgood Marshall:

Well, can you prove it?

Or is that just hear say?

Raymond J. Cannon:

I can prove it now, but —

Thurgood Marshall:

Can you prove that Mrs. Boddie got $45.00?

Raymond J. Cannon:

No, not applied to the individuals, no Your Honor.

Thurgood Marshall:

Well, that’s what we’re dealing with this by appeal.

Raymond J. Cannon:

I can just show an expenditures sums for fees and cost.

Thurgood Marshall:

But, we’re dealing with five named appellants.

Warren E. Burger:

But would you be willing to represent to the Court that if this case were remanded to the courts of Connecticut that there may well be facilities to provide her with money that were not available when this action was started?

Could you represent that?

Raymond J. Cannon:

Yes, I think I would.

I got an honest certified attorney of the New Haven Legal Assistance can show us an expenditure of several thousand dollars or $6,000.00 plus for fees and costs in litigation.

Thurgood Marshall:

In divorce cases?

Raymond J. Cannon:

In all kinds of cases Your Honor.

Thurgood Marshall:

Does it say divorces?

Raymond J. Cannon:

No, it’s not broken down not if I knew.

Thurgood Marshall:

You mean pay in the all cases of litigation?

Raymond J. Cannon:

Excuse me, Your Honor.

It’s all cases, but it’s not broken down in this audit is not broken down by — I got flat transcripts and costs, total $6,000.00

Hugo L. Black:

Of what?

Raymond J. Cannon:

$6,000.00 plus.

Hugo L. Black:

For what?

Raymond J. Cannon:

Transcripts and costs.

Warren E. Burger:

What kind of cases?

Criminal or civil or —

Raymond J. Cannon:

Well, there’s no criminal fees; we have public defender system in Connecticut on public and criminal.

Warren E. Burger:

Does this budget cover all civil matters, the one you’re reading from?

That includes —

Raymond J. Cannon:

Not necessarily restricted to civil cases.

Warren E. Burger:

But it includes them?

Raymond J. Cannon:

It includes and it indicates a surplus on hand at the end of the season.

Warren E. Burger:

Very well.

I think your time is up Mr. Cannon.

Raymond J. Cannon:

I think so Your Honor.

Warren E. Burger:

And your time is up too counsel that I would have to questions to put you?

Arthur B. LaFrance:

Thank you.

Warren E. Burger:

You heard this colloquy of course and I’m sure as a member of this bar, you know that this Court doesn’t reach constitutional issues if there’s any way to avoid them.

Do you see any reason why this case should not be remanded in the Courts of Connecticut for consideration in light of the changed conditions which may have occurred and which are suggested to have occurred by way of providing means for this $45.00 entry fee?

Arthur B. LaFrance:

I certainly do.

Warren E. Burger:

And what are they?

Arthur B. LaFrance:

There are several reasons.

First, I would argue that the availability of other sources is irrelevant to whether or not these appellants have a constitutional right to walk into a Court of Connecticut and file a proceeding without having to pay for sanctions, for fees which that state court has imposed upon them.

Warren E. Burger:

Even if the State of Connecticut through its agencies will provide that $45.00 on request?

Arthur B. LaFrance:

Yes.

Now secondly, with respect to that, the record in this case is clear that the State of Connecticut will not provide those funds on request.

I must say that, I personally resent as a member of the bar of this Court and as an attorney, Mr. Cannon is going outside of the record.

Warren E. Burger:

We asked him to go out of the record counsel.

Arthur B. LaFrance:

In the fashion in which he did because for example, there is no program in the State of Connecticut which will provide court fees to indigent litigants upon request.

There is only one program in which the State of Connecticut is at all involved, and that is a pilot program serving a small section of middle town in the county around it.

Arthur B. LaFrance:

For the rest of the State and I might add for the rest of the nation, people going to legal services programs cannot get into Court unless their program is fortunate about to have excess funds or a budget item which allows for payment of fees.

The Haven Legal Assistance is one of the few programs in the country to my knowledge which over the years has had some funds available for payment of court fees.

There are limited funds, they’re insufficient.

But more importantly, if a person has a constitutional right to walk into a Court, he should not have to go begging or soliciting or his attorney should not have to go soliciting to charitable voluntary ad hoc agencies or governmental programs for something which the State of Connecticut is obligated to provide.

Now, I submit to this Court.

Hugo L. Black:

Well, that’s the issue before, certainly?

Arthur B. LaFrance:

Pardon?

Hugo L. Black:

That’s that issue before us certainly?

Well, whether the —

Arthur B. LaFrance:

That is correct.

Hugo L. Black:

You need it to it without money.

Arthur B. LaFrance:

And so that I maintain that Mr. Cannon’s argument or at least the burden of it missed the point of this appeal which is that these appellants don’t have to go to charitable organizations which may or may not have funds to get something which the state is obligated to provide.

Now, to go back to the point which Mr. Cannon I guess was arguing.

New Haven Legal Assistance does not have the funds for these appellants.

If they did, I would never have started this case.

I wouldn’t be here today.

Did you ask for it?

Arthur B. LaFrance:

I certainly did.

Your Honor, these cases —

Hugo L. Black:

That’s the State of Connecticut, they actually have money to pay the fee out of that fund?

Arthur B. LaFrance:

The State of Connecticut has not fund.

There is no source for these fees.

Hugo L. Black:

What is that fund he is talking about?

Arthur B. LaFrance:

The fund that he is talking about to the extent, I understood it; related to a small fund from the welfare department, for a pilot project in middle town jointly funded with HEW.

It has no bearing on these appellants or on the rest of the State.

The allegations and the affidavits in this record remain unchallenged and they remain true that there is no place for these appellants to go.

Now, if this Court is concerned about the present financial status of these appellants, I will be happy to submit affidavits to this Court to persuade it that this case is still alive and not moot.

But remanding this case after these applications sat in my office for six month and after this case is taken two and a half years, I submit would be cruel.

Hugo L. Black:

Are you taking the position because I have an idea that the federal government did supply for it.

Unnecessary expenses so much for money and they included on all necessary expenses.

Hugo L. Black:

Are you taking the position to pay due do that that?

That you should be allowed to have us pass on this constitutional question now?

I understand your argument, you are?

Arthur B. LaFrance:

First of course, they don’t do that.

Hugo L. Black:

Well, I’m not talking about —

Arthur B. LaFrance:

But if they did do that —

Hugo L. Black:

How do we know if the don’t do this?

Arthur B. LaFrance:

Pardon?

Hugo L. Black:

How do we know if they don’t do this?

Arthur B. LaFrance:

If there is such a regulation or such a program, Mr. Cannon has to have two and a half years to refer it in his brief.

Hugo L. Black:

Because he’s had five years and the case comes up before us and that we must decide of seven important constitutional questions, one way or another, depending on whether certain facts are true.

Would you object it be remanded to the Court to pass on this issue of whether or not that money was available to them but from the relief funds.

Arthur B. LaFrance:

I would object in the posture of this case which has been in the Federal Courts for two-and-a-half years and the state has never once documented the argument which it has made more or less for the first time today.

Hugo L. Black:

Suppose it hasn’t and we found out that’s true.

Should we still go ahead and pass on the constitutional question which perhaps reach all civil cases?

Arthur B. LaFrance:

The fact that the State has not raised any reference to any program or regulation indicates —

Hugo L. Black:

Well, we will then raise it and we found it up here.

Arthur B. LaFrance:

If you found it, then I would suggest that’s possibly —

Hugo L. Black:

In the question — in the court.

Arthur B. LaFrance:

If it were a program clearly available to these appellants.

Then perhaps it might moot this appeal and perhaps then a remand would be appropriate.

Byron R. White:

You mean an official program?

Arthur B. LaFrance:

I mean an official program –

Byron R. White:

You wouldn’t concede that if the program were a wholly a private program.

Arthur B. LaFrance:

I certainly would not Your Honor.

These appellants don’t have to go to charities to seek what is a constitutional right.

Now —

Warren E. Burger:

Well, if there are anymore questions counsel, you’re time is up but we — you may respond to any other questions.

If there are no questions, I think that —

Hugo L. Black:

I think if I may say so.

Hugo L. Black:

You suggested that you would supply some affidavits as to the authority of these clients of yours to get access to the courts if you having change of conditions, therefore we will have to have those affidavits.

Arthur B. LaFrance:

I will provide them within two weeks Your Honor.

Thank you.

Warren E. Burger:

Very well.

Hugo L. Black:

Can you get something about the viewpoint of the regulations of the health department that the Government did.

Arthur B. LaFrance:

I would like the opportunity to submit a supplemental brief on those Your Honor.

I feel strongly that this case should not be remanded.

Warren E. Burger:

Of course, Mr. Cannon may submit any information that relates, bears on the issue.

But some members of the court aren’t concerned about namely and specifically whether any public authority in the State of Connecticut either or whether supported by the State of Connecticut of federal or both or indeed separately any private authority, whether that’s relevant or not, we don’t know.

But you may submit that material as well Mr. Cannon.

Raymond J. Cannon:

Thank you Your Honor.

Warren E. Burger:

And of course, each of you will exchange your information before it comes up here.

Arthur B. LaFrance:

Thank you Your Honor.

Warren E. Burger:

Thank you Mr. LaFrance.

Thank you Mr. Cannon.

Raymond J. Cannon:

Thank you Mr. Chief Justice.

Warren E. Burger:

The case is submitted subject to those filings.