M. L. B. v. S. L. J. - Oral Argument - October 07, 1996

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

Media for M. L. B. v. S. L. J.

Audio Transcription for Opinion Announcement - December 16, 1996 in M. L. B. v. S. L. J.

Audio Transcription for Oral Argument - October 07, 1996 in M. L. B. v. S. L. J.

William H. Rehnquist:

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

Mr. McDuff.

Robert B. 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.

William H. Rehnquist:

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?

Robert B. 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.

William H. Rehnquist:

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

Robert B. McDuff:

Yes.

William H. Rehnquist:

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

Robert B. 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.

William H. Rehnquist:

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.

Robert B. 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.

William H. Rehnquist:

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.

Robert B. 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.

Antonin Scalia:

Or it could abolish appeals, alternatively, couldn't it?

Robert B. McDuff:

Certainly, yes, and I mean our point here--

Antonin Scalia:

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?

Robert B. McDuff:

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