M.L.B. v. S.L.J.
519 U.S. 102 (1996)
[Majority: Ginsburg, Stevens, O’Connor, Souter, and Breyer. Concurring: Kennedy. Dissenting: Rehnquist (C.J.), Thomas, and Scalia.]
Justice Ginsburg delivered the opinion of the Court.
By order of a Mississippi Chancery Court, petitioner M. L. B.’s parental rights to her two minor children were forever terminated. M. L. B. sought to appeal from the termination decree, but Mississippi required that she pay in advance record preparation fees estimated at $2,352.36. Because M. L. B. lacked funds to pay the fees, her appeal was dismissed.
Urging that the size of her pocketbook should not be dispositive when “an interest far more precious than any property right” is at stake, Santosky v. Kramer (1982), M. L. B. tenders this question, which we agreed to hear and decide: May a State, consistent with the Due Process and Equal Protection Clauses of the 14th Amendment, condition appeals from trial court decrees terminating parental rights on the affected parent’s ability to pay record preparation fees? We hold that, just as a State may not block an indigent petty offender’s access to an appeal afforded others so Mississippi may not deny M. L. B., because of her poverty, appellate review of the sufficiency of the evidence on which the trial court found her unfit to remain a parent. . . .
- Courts have confronted, in diverse settings, the “age-old problem” of “[p]roviding equal justice for poor and rich, weak and powerful alike.” Griffin v. Illinois, 351 U.S. 12 (1956). Concerning access to appeal in general, and transcripts needed to pursue appeals in particular, Griffin is the foundation case.
Griffin involved an Illinois rule that effectively conditioned thoroughgoing appeals from criminal convictions on the defendant’s procurement of a transcript of trial proceedings. . . . Indigent defendants, other than those sentenced to death, were not excepted from the rule, so in most cases, defendants without means to pay for a transcript had no access to appellate review at all. Although the Federal Constitution guarantees no right to appellate review [Griffin], once a State affords that right, Griffin held, the State may not “bolt the door to equal justice.” . . .
Of prime relevance to the question presented by M. L. B.’s petition, Griffin ‘s principle has not been confined to cases in which imprisonment is at stake. The key case is Mayer v. Chicago (1971). Mayer involved an indigent defendant convicted on nonfelony charges of violating two city ordinances. Fined $250 for each offense, the defendant petitioned for a transcript to support his appeal. He alleged prosecutorial misconduct and insufficient evidence to convict. The State provided free transcripts for indigent appellants in felony cases only. We declined to limit Griffin to cases in which the defendant faced incarceration. “The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay,” the Court said in Mayer, “is not erased by any differences in the sentences that may be imposed.” Petty offenses could entail serious collateral consequences, the Mayer Court noted. . . .
III. We have also recognized a narrow category of civil cases in which the State must provide access to its judicial processes without regard to a party’s ability to pay court fees. In Boddie v. Connecticut (1971), we held that the State could not deny a divorce to a married couple based on their inability to pay approximately $60 in court costs. Crucial to our decision in Boddie was the fundamental interest at stake. “[G]iven the basic position of the marriage relationship in this society’s hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship,” we said, due process “prohibit[s] a State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.” [The Court then discussed other civil cases in which the Court had not required the state to provide access to its judicial processes regardless of a party’s ability to pay court fees.] . . .
[T]his Court has not extended Griffin to the broad array of civil cases. But tellingly, the Court has consistently set apart from the mine run of cases those involving state controls or intrusions on family relationships. In that domain, to guard against undue official intrusion, the Court has examined closely and contextually the importance of the governmental interest advanced in defense of the intrusion. . . .
- Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as “of basic importance in our society,” Boddie v. Connecticut (1971), rights sheltered by the 14th Amendment against the State’s unwarranted usurpation, disregard, or disrespect. M. L. B.’s case, involving the State’s authority to sever permanently a parent-child bond, demands the close consideration the Court has long required when a family association so undeniably important is at stake. We approach M. L. B.’s petition mindful of the gravity of the sanction imposed on her and in light of two prior decisions most immediately in point: Lassiter v. Department of Social Servs. of Durham Cty. (1981), and Santosky v. Kramer (1982).
Lassiter concerned the appointment of counsel for indigent persons seeking to defend against the State’s termination of their parental status. The Court held that appointed counsel was not routinely required to assure a fair adjudication; instead, a case-by-case determination of the need for counsel would suffice. . . . While the Court declined to recognize an automatic right to appointed counsel, it said that an appointment would be due when warranted by the character and difficulty of the case.
Significant to the disposition of M. L. B.’s case, the Lassiter Court considered it “plain . . . that a parent’s desire for and right to ‘the companionship, care, custody, and management of his or her children’ is an important interest,” one that “‘undeniably warrants deference and, absent a powerful countervailing interest, protection.'”(quoting Stanley v. Illinois (1972)). The object of the proceeding is “not simply to infringe upon [the parent’s] interest,” the Court recognized, “but to end it”; thus, a decision against the parent “work[s] a unique kind of deprivation.” Lassiter. For that reason, “[a] parent’s interest in the accuracy and justice of the decision . . . is . . . a commanding one.” Lassiter (Blackmun, J., dissenting) (“A termination of parental rights is both total and irrevocable. Unlike other custody proceedings, it leaves the parent with no right to visit or communicate with the child. . . .”)
Santosky held that a “clear and convincing” proof standard is constitutionally required in parental termination proceedings. In so ruling, the Court again emphasized that a termination decree is “final and irrevocable.” “Few forms of state action,” the Court said, “are both so severe and so irreversible.” As in Lassiter, the Court characterized the parent’s interest as “commanding,” indeed, “far more precious than any property right.”
Although both Lassiter and Santosky yielded divided opinions, the Court was unanimously of the view that “the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the 14th Amendment.” Santosky (Rehnquist, J., dissenting). It was also the Court’s unanimous view that “[f]ew consequences of judicial action are so grave as the severance of natural family ties.”
- Guided by this Court’s precedent on an indigent’s access to judicial processes in criminal and civil cases, and on proceedings to terminate parental status, we turn to the classification question this case presents: Does the 14th Amendment require Mississippi to accord M. L. B. access to an appeal — available but for her inability to advance required costs — before she is forever branded unfit for affiliation with her children? Respondents urge us to classify M. L. B.’s case with the generality of civil cases, in which indigent persons have no constitutional right to proceed in forma pauperis. . . . For the purpose at hand, M. L. B. asks us to treat her parental termination appeal as we have treated petty offense appeals; she urges us to adhere to the reasoning in Mayer v. Chicago (1971) and rule that Mississippi may not withhold the transcript M. L. B. needs to gain review of the order ending her parental status. Guided by Lassiter and Santosky, and other decisions acknowledging the primacy of the parent-child relationship we agree that the Mayer decision points to the disposition proper in this case.
We observe first that the Court’s decisions concerning access to judicial processes, commencing with Griffin and running through Mayer, reflect both equal protection and due process concerns. . . . The equal protection concern relates to the legitimacy of fencing out would-be appellants based solely on their inability to pay core costs. The due process concern homes in on the essential fairness of the state-ordered proceedings anterior to adverse state action. A “precise rationale” has not been composed, because cases of this order “cannot be resolved by resort to easy slogans or pigeonhole analysis,” Bearden v. Georgia (1983). Nevertheless, “[m]ost decisions in this area,” we have recognized, “res[t] on an equal protection framework,” id., as M. L. B.’s plea heavily does, for, as we earlier observed, due process does not independently require that the State provide a right to appeal. . . .
[T]he stakes for petitioner M. L. B. — forced dissolution of her parental rights — are large, “‘more substantial than mere loss of money.'” Santosky. In contrast to loss of custody, which does not sever the parent-child bond, parental status termination is “irretrievabl[y] destructi[ve]” of the most fundamental family relationship. Santosky. And the risk of error, Mississippi’s experience shows, is considerable.
Consistent with Santosky, Mississippi has, by statute, adopted a “clear and convincing proof” standard for parental status termination cases. Nevertheless, the Chancellor’s termination order in this case simply recites statutory language; it describes no evidence, and otherwise details no reasons for finding M. L. B. “clear[ly] and convincing [ly]” unfit to be a parent. Only a transcript can reveal to judicial minds other than the Chancellor’s the sufficiency, or insufficiency, of the evidence to support his stern judgment.
The countervailing government interest, as in Mayer, is financial. Mississippi urges, as the justification for its appeal cost prepayment requirement, the State’s legitimate interest in offsetting the costs of its court system. But in the tightly circumscribed category of parental status termination cases, appeals are few, and not likely to impose an undue burden on the State. See Brief for Petitioner 20, 25 (observing that only 16 reported appeals in Mississippi from 1980 until 1996 referred to the State’s termination statute, and only 12 of those decisions addressed the merits of the grant or denial of parental rights). . . .
In aligning M. L. B.’s case and Mayer — parental status termination decrees and criminal convictions that carry no jail time — for appeal access purposes, we do not question the general rule that fee requirements ordinarily are examined only for rationality. The State’s need for revenue to offset costs, in the mine run of cases, satisfies the rationality requirement; States are not forced by the Constitution to adjust all tolls to account for “disparity in material circumstances.” Griffin (Frankfurter, J., concurring in judgment).
But our cases solidly establish two exceptions to that general rule. The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license. Nor may access to judicial processes in cases criminal or “quasi criminal in nature,” Mayer, turn on ability to pay. In accord with the substance and sense of our decisions in Lassiter and Santosky, we place decrees forever terminating parental rights in the category of cases in which the State may not “bolt the door to equal justice,” Griffin (Frankfurter, J., concurring in judgment).
- In numerous cases, respondents point out, the Court has held that government “need not provide funds so that people can exercise even fundamental rights.” A decision for M. L. B., respondents contend, would dishonor our cases recognizing that the Constitution “generally confer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” DeShaney v. Winnebago County Dept. of Social Servs. (1989).
Complainants in the cases on which respondents rely sought state aid to subsidize their privately initiated action or to alleviate the consequences of differences in economic circumstances that existed apart from state action. M. L. B.’s complaint is of a different order. She is endeavoring to defend against the State’s destruction of her family bonds, and to resist the brand associated with a parental unfitness adjudication. Like a defendant resisting criminal conviction, she seeks to be spared from the State’s devastatingly adverse action. . . .
Respondents and the dissenters urge that we will open floodgates if we do not rigidly restrict Griffin to cases typed “criminal.” But we have repeatedly noticed what sets parental status termination decrees apart from mine run civil actions, even from other domestic relations matters such as divorce, paternity, and child custody. To recapitulate, termination decrees “wor[k] a unique kind of deprivation.” Lassiter. . . .
Justice Kennedy, concurring in the judgment. [Omitted.]
[Justice Kennedy would base his opinion solely on due process principles.]
Chief Justice Rehnquist, dissenting.
I join all but Part II of Justice Thomas’ dissenting opinion. For the reasons stated in that opinion, I would not extend the Griffin-Mayer line of cases to invalidate Mississippi’s refusal to pay for petitioner’s transcript on appeal in this case. . . .
Justice Thomas, with whom Justice Scalia joins, and with whom the Chief Justice joins except as to Part II, dissenting. . . .
I-B. As I stated last Term in Lewis v. Casey (1996) I do not think that the equal protection theory underlying the Griffin line of cases remains viable. There, I expressed serious reservations as to the continuing vitality of Bounds v. Smith (1977) (requiring prison authorities to provide prisoners with adequate law libraries or legal assistance). As it did in Bounds v. Smith (1977), the Court today not only adopts the equal protection theory of Griffin v. Illinois — which was dubious ab initio and which has been undermined since — but extends it. Thus, much of what I said in Lewis v. Casey bears repeating here.
In Griffin, the State of Illinois required all criminal appellants whose claims on appeal required review of a trial transcript to obtain it themselves. The plurality thought that this “discriminate[d] against some convicted defendants on account of their poverty,” (plurality opinion). Justice Harlan, in dissent, perceived a troubling shift in this Court’s equal protection jurisprudence. The Court, he noted, did not “dispute either the necessity for a bill of exceptions or the reasonableness of the general requirement that the trial transcript, if used in its preparation, be paid for by the appealing party.” But, because requiring each would-be appellant to bear the costs of appeal hit the poor harder, the majority divined “an invidious classification between the ‘rich’ and the ‘poor.'” Disputing this early manifestation of the “disparate impact” theory of equal protection, Justice Harlan argued:
[N]o economic burden attendant upon the exercise of a privilege bears equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even though discrimination against “indigents” by name would be unconstitutional.
Justice Harlan offered the example of a state university that conditions an education on the payment of tuition. If charging tuition did not create a discriminatory classification, then, Justice Harlan wondered, how did any other reasonable exaction by a State for a service it provides? “The resulting classification would be invidious in all cases, and an invidious classification offends equal protection regardless of the seriousness of the consequences.” The issue in Griffin was not whether Illinois had made a reasonable classification, but whether the State acted reasonably in failing to remove disabilities that existed wholly independently of state action. To Justice Harlan this was not an inquiry typically posed under the Equal Protection Clause.
In Douglas v. California (1963), Justice Harlan again confronted what Justice Clark termed the Court’s “fetish for indigency,”(dissenting opinion). Regarding a law limiting the appointment of appellate counsel for indigents, Justice Harlan pointed out that “[l]aws such as these do not deny equal protection to the less fortunate for one essential reason: the Equal Protection Clause does not impose on the States ‘an affirmative duty to lift the handicaps flowing from differences in economic circumstances.'” (dissenting opinion).
Justice Harlan’s views were accepted by the Court in Washington v. Davis (1976), in which “[w]e rejected a disparate impact theory of the Equal Protection Clause altogether.” Lewis v. Casey (concurring opinion). We spurned the claim that “a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another.” Absent proof of discriminatory purpose, official action did not violate the 14th Amendment “solely because it has a racially disparate impact.” Hearkening back to Justice Harlan’s dissents in Griffin and Douglas, we recognized that:
[a] rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.
The lesson of Washington is that the Equal Protection Clause shields only against purposeful discrimination: A disparate impact, even upon members of a racial minority, the classification of which we have been most suspect, does not violate equal protection. The Clause is not a panacea for perceived social or economic inequity; it seeks to “guarante[e] equal laws, not equal results.” Personnel Administrator of Massachusetts. v. Feeney (1979).
Since Washington, we have regularly required more of an equal protection claimant than a showing that state action has a harsher effect on him or her than on others. See, e.g., Harris v. McRae (1980) (“The equal protection component of the 5th Amendment prohibits only purposeful discrimination, and when a facially neutral federal statute is challenged on equal protection grounds, it is incumbent upon the challenger to prove that Congress selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group”). Our frequent pronouncements that the 14th Amendment is not violated by disparate impact have spanned challenges to statutes alleged to affect disproportionately members of one race, Washington v. Davis; members of one sex, Personnel Administrator v. Feeney; and poor persons seeking to exercise protected rights, Harris v. McRae, Maher v. Roe (1977).
The majority attempts to avoid what I regard as the irresistible force of the Davis line of cases, but I am unconvinced by the effort. The majority states that persons in cases like those cited above “sought state aid to subsidize their privately initiated action or to alleviate the consequences of differences in economic circumstances that existed apart from state action.” Petitioner, in apparent contrast, “is endeavoring to defend against the State’s destruction of her family bonds, and to resist the brand associated with a parental unfitness adjudication.” She, “[l]ike a defendant resisting criminal conviction, . . . seeks to be spared from the State’s devastatingly adverse action.” But also like a defendant resisting criminal conviction, petitioner is not constitutionally entitled to post-trial process. She defended against the “destruction of her family bonds” in the Chancery Court hearing at which she was accorded all the process this Court has required of the States in parental termination cases. She now desires “state aid to subsidize [her] privately initiated” appeal — an appeal that neither petitioner nor the majority claims Mississippi is required to provide — to overturn the determination that resulted from that hearing. I see no principled difference between a facially neutral rule that serves in some cases to prevent persons from availing themselves of state employment, or a state-funded education, or a state-funded abortion — each of which the State may, but is not required to, provide — and a facially neutral rule that prevents a person from taking an appeal that is available only because the State chooses to provide it.
Nor does Williams v. Illinois (1970), a case decided six years earlier, operate to limit Washington v. Davis. Williams was yet another manifestation of the “equalizing” notion of equal protection that this Court began to question in Washington. See Williams (Harlan, J., concurring in result). To the extent its reasoning survives Davis, I think that Williams is distinguishable. Petitioner Williams was incarcerated beyond the maximum statutory sentence because he was unable to pay the fine imposed as part of his sentence. We found the law that permitted prisoners to avoid extra-statutory imprisonment only by paying their fines to violate the Equal Protection Clause. Even though it was “‘nondiscriminatory on its face,'” the law “work[ed] an invidious discrimination” as to Williams and all other indigents because they could not afford to pay their fines. The majority concludes that the sanctions involved in Williams are analogous to “the Mississippi prescription here at issue,” in that both do not have merely a disparate impact, “they apply to all indigents and do not reach anyone outside that class.” Even assuming that Williams’ imprisonment gave rise to an equal protection violation, however, M. L. B.’s circumstances are not comparable. M. L. B.’s parental rights were terminated — the analog to Williams’ extended imprisonment — because the Chancery Court found, after a hearing, that she was unfit to remain her children’s mother, not because she was indigent. Her indigency only prevented her from taking advantage of procedures above and beyond those required by the Constitution — in the same way that indigency frequently prevents persons from availing themselves of a variety of state services.
The Griffin line of cases ascribed to — one might say announced — an equalizing notion of the Equal Protection Clause that would, I think, have startled the 14th Amendment’s Framers. In those cases, the Court did not find, nor did it seek, any purposeful discrimination on the part of the state defendants. That their statutes had disproportionate effect on poor persons was sufficient for us to find a constitutional violation. In Washington, among other cases, we began to recognize the potential mischief of a disparate impact theory writ large, and endeavored to contain it. In this case, I would continue that enterprise. Mississippi’s requirement of prepaid transcripts in civil appeals seeking to contest the sufficiency of the evidence adduced at trial is facially neutral; it creates no classification. The transcript rule reasonably obliges would-be appellants to bear the costs of availing themselves of a service that the State chooses, but is not constitutionally required, to provide. Any adverse impact that the transcript requirement has on any person seeking to appeal arises not out of the State’s action, but out of factors entirely unrelated to it.
- If this case squarely presented the question, I would be inclined to vote to overrule Griffin and its progeny. Even were I convinced that the cases on which the majority today relies ought to be retained, I could not agree with the majority’s extension of them. . . .
. Similarly, Harper v. Virginia Bd. of Elections (1966), struck down a poll tax that directly restricted the exercise of a right found in that case to be fundamental — the right to vote in state elections. The fee that M. L. B. is unable to pay does not prevent the exercise of a fundamental right directly: The fundamental interest identified by the majority is not the right to a civil appeal, it is rather the right to maintain the parental relationship.