OCTOBER TERM, 1996
Syllabus
M. L. B.
v. S. L. J., INDIVIDUALLY AND AS NEXT FRIEND OF
THE MINOR CHILDREN, S. L. J. AND
M. L. J., ET UX.
CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI No. 95-853.
Argued October 7, 1996-Decided December 16,1996
In a decree forever terminating petitioner M. L. B.'s parental
rights to her two minor children, a Mississippi Chancery Court
recited a segment of the governing Mississippi statute and stated,
without elaboration, that respondents, the children's natural
father and his second wife, had met their burden of proof by "clear
and convincing evidence." The Chancery Court, however, neither
described the evidence nor otherwise revealed precisely why M. L.
B. was decreed a stranger to her children. M. L. B. filed a timely
appeal from the termination decree, but Mississippi law conditioned
her right to appeal on prepayment of record preparation fees
estimated at $2,352.36. Lacking funds to pay the fees, M. L. B.
sought leave to appeal
informa pauperis. The Supreme Court
of Mississippi denied her application on the ground that, under its
precedent, there is no right to proceed
in forma pauperis in
civil appeals. 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, 455 U. S. 745, 758-759,
M. L. B. contends in this Court that a State may not, consistent
with the Due Process and Equal Protection Clauses of the Fourteenth
Amendment, condition appeals from trial court decrees terminating
parental rights on the affected parent's ability to pay record
preparation fees.
Held: Just as a State may not block an indigent petty
offender's access to an appeal afforded others, see
Mayer v.
Chicago, 404
U. S. 189, 195-196, 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 based its parental termination
decree. Pp. 110-128.
(a) The foundation case in the relevant line of decisions is
Griffin v.
Illinois, 351 U. S. 12, in which the
Court struck down an Illinois rule that effectively conditioned
thoroughgoing appeals from criminal convictions on the defendant's
procurement of a transcript of trial proceedings. The Illinois rule
challenged in
Griffin deprived most defendants lacking the
means to pay for a transcript of any access to appellate review.
Although the Federal Constitution guarantees no right to appellate
review,
id., at 18 (plurality opinion), once a State affords
that right,
Griffin held, the State may not "bolt the door
to equal justice," id., at 24 (Frank-
103
furter, J., concurring in judgment). The
Griffin
plurality drew support for its decision from the Due Process and
Equal Protection Clauses, id., at 13, 18, while Justice Frankfurter
emphasized and explained the decision's equal protection
underpinning, id., at 23. Of prime relevance to the question
presented by M. L. B.,
Griffin's principle has not been
confined to cases in which imprisonment is at stake, but extends to
appeals from convictions of petty offenses, involving conduct
"quasi criminal" in nature.
Mayer, 404 U. S., at 196, 197.
In contrast, an indigent defendant's right to counsel at state
expense does not extend to nonfelony trials if no term of
imprisonment is actually imposed.
Scott v.
Illinois,
440 U. S. 367,
373-374. Pp. 110-113.
(b) This Court has 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.
See,
e. g., Boddie v.
Connecticut, 401 U. S. 371, 374
(divorce proceedings). Making clear, however, that a constitutional
requirement to waive court fees in civil cases is the exception,
not the general rule, the Court has refused to extend
Griffin to the broad array of civil cases. See
United
States v.
Kras, 409 U. S. 434, 445;
Ortwein v.
Schwab, 410 U.
S. 656, 661
(per curiam). But the Court has consistently
set apart from the mine run of civil 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. Pp. 113-116.
(c) 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 "of basic
importance in our society" is at stake.
Boddie, 401 U. S.,
at 376. The Court approaches M. L. Bo'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., 452 U. S. 18 (appointment
of counsel for indigent defendants in parental status termination
proceedings is not routinely required by the Constitution, but
should be determined on a case-by-case basis), and
Santosky
v.
Kramer, 455
U. S. 745 ("clear and convincing" proof standard is
constitutionally required in parental termination proceedings).
Although both
Lassiter and
Santo sky 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 Fourteenth Amendment,"
Santosky,
455 U. S., at 774 (REHNQUIST, J., dissenting), and that "[f]ew
consequences of judicial action are so grave as the severance of
natural family ties," id., at 787. Pp. 116-119.
104
Syllabus
(d) Guided by
Lassiter, Santosky, and other decisions
acknowledging the primacy of the parent-child relationship, the
Court agrees with M. L. B. that
Mayer points to the
disposition proper in this case: Her parental termination appeal
must be treated as the Court has treated petty offense appeals, and
Mississippi may not withhold the transcript she needs to gain
review of the order ending her parental status. The Court's
decisions concerning access to judicial processes, commencing with
Griffin and running through
Mayer, reflect both equal
protection and due process concerns. See
Ross v.
Moffitt, 417
U. S. 600, 608609. In these cases, "[d]ue process and equal
protection principles converge."
Bearden v.
Georgia,
461 U. S. 660,
665. A "precise rationale" has not been composed,
Ross, 417
U. S., at 608, because cases of this order "cannot be resolved by
resort to easy slogans or pigeonhole analysis,"
Bearden, 461
U. S., at 666. Nevertheless, "[m]ost decisions in this area," the
Court has recognized, "res[t] on an equal protection framework,"
id., at 665, as M. L. B.'s plea heavily does, for due process does
not independently require that the State provide a right to appeal.
Placing this case within the framework established by the Court's
past decisions in this area, the Court inspects the character and
intensity of the individual interest at stake, on the one hand, and
the State's justification for its exaction, on the other. See id.,
at 666-667.
As in the case of the indigent petty offender charged in
Mayer, the stakes for M. L. B. are large. Parental status
termination is "irretrievabl[y] destructi[ ve]" of the most
fundamental family relationship.
Santosky, 455 U. S., at
753. And the risk of error, Mississippi's experience shows, is
considerable. Mississippi has, consistent with
Santosky,
adopted a "clear and convincing proof" standard for parental status
termination cases, but the Chancellor's 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
the sufficiency, or insufficiency, of the evidence to support that
stern judgment. Mississippi's countervailing interest in offsetting
the costs of its court system is unimpressive when measured against
the stakes for M. L. B. The record discloses that, in the tightly
circumscribed category of parental status termination cases,
appeals are few, and not likely to impose an undue burden on the
State. Moreover, it would be anomalous to recognize a right to a
transcript needed to appeal a misdemeanor conviction-though trial
counsel may be flatly denied such a defendant-but hold, at the same
time, that a transcript need not be prepared for M. L. B.-though
were her defense sufficiently complex, state-paid counsel, as
Lassiter instructs, would be designated for her. While the
Court does not question the general rule, stated in
Ortwein,
410 U. S., at 660, that fee re-
105
quirements ordinarily are examined only for rationality, the
Court's cases solidly establish two exceptions to that rule. The
basic right to participate in political processes as voters and
candidates cannot be limited to those who can pay for a license.
See,
e. g., Harper v.
Virginia Bd. of Elections,
383 U. S. 663.
Nor may access to judicial processes in cases criminal or "quasi
criminal" in nature,
Mayer, 404 U. S., at 196, turn on
ability to pay. The Court places decrees forever terminating
parental rights in the category of cases in which the State may not
"bolt the door to equal justice."
Griffin, 351 U. S., at 24
(Frankfurter, J., concurring in judgment). Pp. 119-124.
(e) Contrary to respondents' contention, cases in which the
Court has held that government need not provide funds so that
people can exercise even fundamental rights, see,
e. g.,
Lyng v.
Automobile Workers, 485 U. S. 360, 363, n. 2,
370-374, are inapposite here. Complainants in those cases 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. That is the very reason this Court
has paired her case with
Mayer, not with
Ortwein or
Kras. Also rejected is respondents' suggestion that
Washington v.
Davis, 426 U. S. 229, 242,
effectively overruled the
Griffin line of cases in 1976 by
rejecting the notion "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." That this Court
has not so conceived the meaning and effect of
Washington v.
Davis is demonstrated by
Bearden, 461 U. S., at
664-665, in which the Court adhered in 1983 to
"Griffin's
principle of 'equal justice.''' The Court recognized in
Griffin that "a law nondiscriminatory on its face may be
grossly discriminatory in operation," 351 U. S., at 17, n. 11, and
explained in
Williams v.
Illinois, 399 U. S. 235, 242, that
an Illinois statute it found unconstitutional in that case "in
operative effect expose[d] only indigents to the risk of
imprisonment beyond the statutory maximum." Like the sanction in
Williams, the Mississippi prescription here at issue is not
merely disproportionate in impact, but wholly contingent on one's
ability to pay, thereby "visit[ing] different consequences on two
categories of persons."
Ibid. A failure rigidly to restrict
Griffin to cases typed "criminal" will not result in the
opening of judicial floodgates, as respondents urge. This Court has
repeatedly distinguished parental status termination decrees from
mine run civil actions
106
on the basis of the unique deprivation termination decrees work:
permanent destruction of all legal recognition of the parental
relationship.
Lassiter and
Santosky have not served
as precedent in other areas, and the Court is satisfied that the
label "civil" should not entice it to leave undisturbed the
Mississippi courts' disposition of this case. Cf.
In re
Gault,
387 U. S. 1,
50. Pp. 124-128.
(f) Thus, Mississippi may not withhold from M. L. B. "a 'record
of sufficient completeness' to permit proper [appellate]
consideration of [her] claims."
Mayer, 404 U. S., at 198. P.
128.
Reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, SOUTER, and BREYER, JJ., joined. KENNEDY, J.,
filed an opinion concurring in the judgment,
post, p. 128.
REHNQUIST, C. J., filed a dissenting opinion,
post, p. 129.
THOMAS, J., filed a dissenting opinion, in which SCALIA, J.,
joined, and in which REHNQUIST, C. J., joined, except as to Part
II,
post, p. 129.
Robert B. McDuff argued the cause for petitioner. With
him on the briefs were
Danny Lampley and
Steven R.
Shapiro.
Rickey T. Moore, Special Assistant Attorney General of
Mississippi, argued the cause for respondents. With him on the
brief was
Mike Moore, Attorney General. *
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, 455 U. S. 745,
*Martha Matthews filed a brief for the National Center
for Youth Law et al. as
amici curiae.
107
758-759 (1982), M. L. B. tenders this question, which we agreed
to hear and decide: Maya State, consistent with the Due Process and
Equal Protection Clauses of the Fourteenth 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, see
Mayer v.
Chicago, 404
U. S. 189, 195-196 (1971), 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.
I
Petitioner M. L. B. and respondent S. L. J. are, respectively,
the biological mother and father of two children, a boy born in
April 1985, and a girl born in February 1987. In June 1992, after a
marriage that endured nearly eight years, M. L. B. and S. L. J.
were divorced. The children remained in their father's custody, as
M. L. B. and S. L. J. had agreed at the time of the divorce.
S. L. J. married respondent J. P. J. in September 1992. In
November of the following year, S. L. J. and J. P. J. filed suit in
Chancery Court in Mississippi, seeking to terminate the parental
rights of M. L. B. and to gain court approval for adoption of the
children by their stepmother, J. P. J. The complaint alleged that
M. L. B. had not maintained reasonable visitation and was in
arrears on child support payments. M. L. B. counterclaimed, seeking
primary custody of both children and contending that S. L. J. had
not permitted her reasonable visitation, despite a provision in the
divorce decree that he do so.
After taking evidence on August 18, November 2, and December 12,
1994, the Chancellor, in a decree filed December 14, 1994,
terminated all parental rights of the natural mother, approved the
adoption, and ordered that J. P. J., the adopting parent, be shown
as the mother of the children on
108
their birth certificates. Twice reciting a segment of the
governing Mississippi statute, Miss. Code Ann. § 93-15103(3)(e)
(1994), the Chancellor declared that there had been a "substantial
erosion of the relationship between the natural mother, [M. L. B.],
and the minor children," which had been caused "at least in part by
[M. L. B.'s] serious neglect, abuse, prolonged and unreasonable
absence or unreasonable failure to visit or communicate with her
minor children." App. to Pet. for Cert. 9, 10.1
The Chancellor stated, without elaboration, that the natural
father and his second wife had met their burden of proof by "clear
and convincing evidence."
Id., at 10. Nothing in the
Chancellor's order describes the evidence, however, or otherwise
reveals precisely why M. L. B. was decreed, forevermore, a stranger
to her children.
In January 1995, M. L. B. filed a timely appeal and paid the
$100 filing fee. The Clerk of the Chancery Court, several days
later, estimated the costs for preparing and transmitting the
record: $1,900 for the transcript (950 pages at $2 per page); $438
for other documents in the record (219 pages at $2 per page); $4.36
for binders; and $10 for mailing.
Id., at 15.
Mississippi grants civil litigants a right to appeal, but
conditions that right on prepayment of costs. Miss. Code Ann. §§
11-51-3, 11-51-29 (Supp. 1996). Relevant portions of a transcript
must be ordered, and its preparation costs ad-
1 Mississippi Code Ann. § 93-15-103(3) (1994) sets forth several
grounds for termination of parental rights, including, in
subsection (3)(e), "when there is [a] substantial erosion of the
relationship between the parent and child which was caused at least
in part by the parent's serious neglect, abuse, prolonged and
unreasonable absence, unreasonable failure to visit or communicate,
or prolonged imprisonment."
M. L. B. notes that, "in repeating the catch-all language of
[the statute], the Chancellor said that [she] was guilty of
'serious ... abuse.''' Reply Brief 6, n. 1. "However," M. L. B.
adds, "there was no allegation of abuse in the complaint in this
case or at any other stage of the proceedings."
Ibid.
109
vanced by the appellant, if the appellant "intends to urge on
appeal," as M. L. B. did, "that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence." Miss.
Rule of App. Proc. 10(b)(2) (1995); see also Miss. Code Ann. §
11-51-29 (Supp. 1996).
Unable to pay $2,352.36, M. L. B. sought leave to appeal
in
forma pauperis. The Supreme Court of Mississippi denied her
application in August 1995. Under its precedent, the court said,
"[t]he right to proceed in forma pauperis in civil cases exists
only at the trial level." App. to Pet. for Cert.3.2
M. L. B. had urged in Chancery Court and in the Supreme
Court of Mississippi, and now urges in this Court, that
"where the State's judicial processes are invoked to secure so
severe an alteration of a litigant's fundamental rights-the
termination of the parental relationship with one's natural
child-basic notions of fairness [and] of equal protection under the
law, ... guaranteed by [the Mississippi and Federal Constitutions],
require that a person be afforded the right of appellate review
though one is unable to pay the costs of such review in advance."
Id., at 18.3
2 In fact, Mississippi, by statute, provides for coverage of
transcript fees and other costs for indigents in civil commitment
appeals. Miss. Code Ann. §41-21-83 (Supp. 1996) (record on appeal
shall include transcript of commitment hearing); Miss. Code Ann.
§41-21-85 (1972) (all costs of hearing or appeal shall be borne by
state board of mental health when patient is indigent).
3 On the efficacy of appellate review in parental status
termination cases, M. L. B. notes that of the eight reported
appellate challenges to Mississippi trial court termination orders
from 1980 through May 1996, three were reversed by the Mississippi
Supreme Court for failure to meet the "clear and convincing" proof
standard. Brief for Petitioner 20; see also Reply Brief 6 ("[I]n
civil cases generally, the Mississippi Court of Appeals reversed or
vacated nearly 39% of the trial court decisions it reviewed in 1995
and the Mississippi Supreme Court reversed or vacated nearly 37%.
Supreme Court of Mississippi, 1995
Annual Report, pp.
22, 41.").
110
II
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, 16 (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. See
id., at 13-14, and nn. 2, 3 (noting,
inter alia, that
"mandatory record," which an indigent defendant could obtain free
of charge, did not afford the defendant an opportunity to seek
review of trial errors). 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,
id.,
at 18, once a State affords that right,
Griffin held, the
State may not "bolt the door to equal justice," id., at 24
(Frankfurter, J., concurring in judgment).
The plurality in
Griffin recognized "the importance of
appellate review to a correct adjudication of guilt or innocence."
Id., at 18. "[T]o deny adequate review to the poor," the
plurality observed, "means that many of them may lose their life,
liberty or property because of unjust convictions which appellate
courts would set aside."
Id., at 19. Judging the Illinois
rule inconsonant with the Fourteenth Amendment, the
Griffin
plurality drew support from the Due Process and Equal Protection
Clauses.
Id., at 13, 18.
Justice Frankfurter, concurring in the judgment in
Griffin, emphasized and explained the decision's equal
protection underpinning:
"Of course a State need not equalize economic conditions ....
But when a State deems it wise and just that
111
convictions be susceptible to review by an appellate court, it
cannot by force of its exactions draw a line which precludes
convicted indigent persons, forsooth erroneously convicted, from
securing such a review .... " Id., at 23.
See also
Ross v.
Moffitt, 417 U. S. 600, 607 (1974)
(Griffin and succeeding decisions "stand for the proposition
that a State cannot arbitrarily cut off appeal rights for indigents
while leaving open avenues of appeal for more affluent persons.").
Summarizing the
Griffin line of decisions regarding an
indigent defendant's access to appellate review of a conviction,4
we said in
Rinaldi v.
Yeager, 384 U. S. 305, 310
(1966): "This Court has never held that the States are required to
establish avenues of appellate review, but it is now fundamental
that, once established, these avenues must be kept free of
unreasoned distinctions that can only impede open and equal access
to the courts."
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, 404
U. S. 189 (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
4 See,
e. g., Williams v.
Oklahoma City, 395 U. S. 458, 458-459
(1969)
(per curiam) (transcript needed to perfect appeal
must be furnished at state expense to indigent defendant sentenced
to 90 days in jail and a $50 fine for drunk driving);
Long
v.
District Court of Iowa, Lee Cty., 385 U. S. 192, 192-194
(1966)
(per curiam) (transcript must be furnished at state
expense to enable indigent state habeas corpus petitioner to appeal
denial of relief);
Smith v.
Bennett, 365 U. S. 708, 708-709
(1961) (filing fee to process state habeas corpus application must
be waived for indigent prisoner);
Burns v.
Ohio,
360 U. S. 252,
253, 257-258 (1959) (filing fee for motion for leave to appeal from
judgment of intermediate appellate court to State Supreme Court
must be waived when defendant is indigent).
112
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." 404 U. S., at 197. Petty offenses
could entail serious collateral consequences, the
Mayer
Court noted.
Ibid. The
Griffin principle,
Mayer underscored, "is a fiat prohibition," 404 U. S., at
196, against "making access to appellate processes from even [the
State's] most inferior courts depend upon the [convicted]
defendant's ability to pay," id., at 197. An impecunious party, the
Court ruled, whether found guilty of a felony or conduct only
"quasi criminal in nature," id., at 196, "cannot be denied a record
of sufficient completeness to permit proper [appellate]
consideration of his claims," id., at 198 (internal quotation marks
omitted).5
In contrast to the "fiat prohibition" of "bolted doors" that the
Griffin line of cases securely established, the right to
5
Griffin did not impose an inflexible requirement that a
State provide a full trial transcript to an indigent defendant
pursuing an appeal. See
Griffin v.
Illinois, 351 U. S. 12, 20 (1956)
(State need not purchase a stenographer's transcript in every case
where an indigent defendant cannot buy it; State "Supreme Court may
find other means of affording adequate and effective appellate
review to indigent defendants."). In
Draper v.
Washington, 372 U. S. 487 (1963), we
invalidated a state rule that tied an indigent defendant's ability
to obtain a transcript at public expense to the trial judge's
finding that the defendant's appeal was not frivolous.
Id.,
at 498-500. We emphasized, however, that the
Griffin
requirement is not rigid. "Alternative methods of reporting trial
proceedings," we observed, "are permissible if they place before
the appellate court an equivalent report of the events at trial
from which the appellant's contentions arise." 372 U. S., at 495.
Moreover, we held, an indigent defendant is entitled only to those
parts of the trial record that are "germane to consideration of the
appeal."
Ibid.; see also
Mayer v.
Chicago,
404 U. S. 189,
194 (1971) ("A record of sufficient completeness does not translate
automatically into a complete verbatim transcript." (internal
quotation marks omitted)).
113
counsel at state expense, as delineated in our decisions, is
less encompassing. A State must provide trial counsel for an
indigent defendant charged with a felony,
Gideon v.
Wainwright, 372 U. S. 335, 339
(1963), but that right does not extend to nonfelony trials if no
term of imprisonment is actually imposed,
Scott v.
Illinois, 440
U. S. 367, 373-374 (1979). A State's obligation to provide
appellate counsel to poor defendants faced with incarceration
applies to appeals of right.
Douglas v.
California,
372 U. S. 353,
357 (1963). In
Ross v.
Moffitt, however, we held that
neither the Due Process Clause nor the Equal Protection Clause
requires a State to provide counsel at state expense to an indigent
prisoner pursuing a discretionary appeal in the state system or
petitioning for review in this Court. 417 U. S., at 610, 612,
616-618.
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, 401 U. S. 371 (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."
Id., at 374; see also
Little v.
Streater, 452 U.
S. 1, 13-17 (1981) (State must pay for blood grouping tests
sought by an indigent defendant to enable him to contest a
paternity suit).
Soon after
Boddie, in
Lindsey v.
Normet,
405 U. S. 56
(1972), the Court confronted a double-bond requirement imposed by
Oregon law only on tenants seeking to appeal ad-
114
verse decisions in eviction actions. We referred first to
precedent recognizing that, "if a full and fair trial on the merits
is provided, the Due Process Clause of the Fourteenth Amendment
does not require a State to provide appellate review."
Id.,
at 77. We next stated, however, that "[w]hen an appeal is afforded,
... it cannot be granted to some litigants and capriciously or
arbitrarily denied to others without violating the Equal Protection
Clause."
Ibid. Oregon's double-bond requirement failed equal
protection measurement, we concluded, because it raised a
substantial barrier to appeal for a particular class of
litigants-tenants facing eviction-a barrier "faced by no other
civil litigant in Oregon."
Id., at 79. The Court pointed out
in
Lindsey that the classification there at issue
disadvantaged nonindigent as well as indigent appellants,
ibid.; the
Lindsey decision, therefore, does not
guide our inquiry here.
The following year, in
United States v.
Kras,
409 U. S. 434
(1973), the Court clarified that a constitutional requirement to
waive court fees in civil cases is the exception, not the general
rule.
Kras concerned fees, totaling $50, required to secure
a discharge in bankruptcy.
Id., at 436. The Court recalled
in
Kras that "[o]n many occasions we have recognized the
fundamental importance ... under our Constitution" of "the
associational interests that surround the establishment and
dissolution of thee] [marital] relationship."
Id., at 444.6
But bankruptcy discharge entails no "funda-
6 As examples, the Court listed:
Eisenstadt v.
Baird, 405 U.
S. 438, 453 (1972) (right to be free from government
interference in deciding whether to bear or beget a child is
"fundamenta[l]," and may not be burdened based upon marital
status);
Loving v.
Virginia, 388 U. S. 1, 12 (1967)
("Marriage is [a] 'basic civil righ[t],'" and cannot be denied
based on a racial classification. (citations omitted));
Griswold v.
Connecticut, 381 U. S. 479, 485-486
(1965) (marital relationship "is an association that promotes a way
of life, ... a harmony in living, ... a bilateral loyalty," and the
use of contraception within marriage is protected against
government intrusion);
Skinner v.
Oklahoma ex rel.
Williamson, 316
U. S. 535, 541 (1942) (Because the power to sterilize affects
"a basic liberty[,] ... strict scrutiny of
115
mental interest," we said.
Id., at 445. Although
"obtaining [a] desired new start in life [is] important," that
interest, the Court explained, "does not rise to the same
constitutional level" as the interest in establishing or dissolving
a marriage.
Ibid.7 Nor is resort to court the sole path to
securing debt forgiveness, we stressed; in contrast, termination of
a marriage, we reiterated, requires access to the State's judicial
machinery.
Id., at 445-446; see
Boddie, 401 U. S., at
376.
In
Ortwein v.
Schwab, 410 U. S. 656 (1973)
(per curiam), the Court adhered to the line drawn in
Kras. The appellants in
Ortwein sought court review
of agency determinations reducing their welfare benefits. Alleging
poverty, they challenged, as applied to them, an Oregon statute
requiring appellants in civil cases to pay a $25 fee. We summarily
affirmed the Oregon Supreme Court's judgment rejecting appellants'
challenge. As in
Kras, the Court saw no "'fundamental
interest ... gained or lost depending on the availability' of the
relief sought by [the complainants]." 410 U. S., at 659 (quoting
Kras, 409 U. S., at 445). Absent a fundamental interest or
classification attracting heightened scrutiny, we said, the
applicable equal protection standard
the classification which a State makes in a sterilization law is
essential.");
Meyer v.
Nebraska, 262 U. S. 390, 399 (1923)
(recognizing liberty interest in raising children). See
Kras, 409 U. S., at 444.
7 The Court ranked the prescription in
Kras with economic
and social welfare legislation generally, and cited among examples:
Jefferson v.
Hackney, 406 U. S. 535, 546 (1972)
(Texas scheme for allocating limited welfare benefits is a rational
legislative "effor[t] to tackle the problems of the poor and the
needy.");
Richardson v.
Belcher, 404 U. S. 78 (1971)
(federal statute mandating reductions in Social Security benefits
to reflect workers' compensation payments is social welfare
regulation that survives rationalbasis review);
Dandridge v.
Williams, 397
U. S. 471, 483, 487 (1970) (Maryland "maximum grant regulation"
limiting family welfare benefits is economic, social welfare
regulation that is "rationally based and free from invidious
discrimination.");
Flemming v.
Nestor, 363 U. S. 603, 606, 611
(1960) (The right to receive benefits under the Social Security Act
is not "an accrued property right," but Congress may not take away
benefits arbitrarily.). See
Kras, 409 U. S., at 445-446.
116
"is that of rational justification," a requirement we found
satisfied by Oregon's need for revenue to offset the expenses of
its court system. 410 U. S., at 660. We expressly rejected the
Ortwein appellants' argument that a fee waiver was required
for all civil appeals simply because the State chose to permit
in forma pauperis filings in special classes of civil
appeals, including appeals from terminations of parental rights.
Id., at 661.
In sum, as
Ortwein underscored, this 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. Cf.
Moore v.
East Cleveland, 431 U. S. 494 (1977).
IV
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, 401 U. S., at
376, rights sheltered by the Fourteenth Amendment against the
State's unwarranted usurpation, disregard, or disrespect. See, for
example,
Turner v.
Safley, 482 U. S. 78 (1987),
Zablocki v.
Redhail, 434 U. S. 374 (1978), and
Loving v.
Virginia, 388 U. S. 1 (1967)
(marriage);
Skinner v.
Oklahoma ex rel. Williamson,
316 U. S. 535
(1942) (procreation);
Pierce v.
Society of Sisters,
268 U. S. 510
(1925), and
Meyer v.
Nebraska, 262 U. S. 390 (1923)
(raising children). M. L. B.'s case, involving the State's
authority to sever permanently a parent-child bond,s demands the
close consider-
8 Although the termination proceeding in this case was initiated
by private parties as a prelude to an adoption petition, rather
than by a state agency, the challenged state action remains
essentially the same: M. L. B. resists the imposition of an
official decree extinguishing, as no power other than the State
can, her parent-child relationships.
117
ation 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., 452 U. S. 18 (1981), and
Santosky v.
Kramer, 455 U. S. 745 (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,
an assessment to be made "in the first instance by the trial court,
subject ... to appellate review." 452 U. S., at 32.
For probation-revocation hearings where loss of conditional
liberty is at issue, the
Lassiter Court observed, our
precedent is not doctrinaire; due process is provided, we have
held, when the decision whether counsel should be appointed is made
on a case-by-case basis. See
Gagnon v.
Scarpelli,
411 U. S. 778,
790 (1973). In criminal prosecutions that do not lead to the
defendant's incarceration, however, our precedent recognizes no
right to appointed counsel. See
Scott v.
Illinois,
440 U. S., at 373-374. Parental termination cases, the
Lassiter Court concluded, are most appropriately ranked with
probation-revocation hearings: 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. See
Lassiter, 452 U. S., at
31-32.9
Significant to the disposition of M. L. B.'s case, the
Lassiter Court considered it "plain ... that a parent's
desire for
9The Court noted, among other considerations, that petitions to
terminate parental rights may charge criminal activity and that
"[p]arents so accused may need legal counsel to guide them in
understanding the problems such petitions may create."
Lassiter, 452 U. S., at 27, n. 3.
118
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.'"
Id., at 27 (quoting
Stanley v.
Illinois, 405 U. S. 645, 651
(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, 452 U. S., at 27. For that reason,
"[a] parent's interest in the accuracy and justice of the decision
... is ... a commanding one."
Ibid.; see also
id., at
39 (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 .... " (footnote omitted)).
Santosky held that a "clear and convincing" proof
standard is constitutionally required in parental termination
proceedings. 455 U. S., at 769-770.10 In so ruling, the Court again
emphasized that a termination decree is
''final and
irrevocable."
Id., at 759 (emphasis in original). "Few forms
of state action," the Court said, "are both so severe and so
irreversible."
IbidY As in
Lassiter, the Court
characterized the parent's interest as "commanding," indeed,
10 Earlier, in
Addington v.
Texas, 441 U. S. 418,431-432
(1979), the Court concluded that the Fourteenth Amendment requires
a "clear and convincing" standard of proof in civil commitment
proceedings.
11 In
Rivera v.
Minnich, 483 U. S. 574 (1987), the
Court declined to extend
Santosky to paternity proceedings.
The Court distinguished the State's imposition of the legal
obligations attending a biological relationship between parent and
child from the State's termination of a fully existing parent-child
relationship. See
Rivera, 483 U. S., at 579-582. In drawing
this distinction, the Court found it enlightening that state
legislatures had similarly separated the two proceedings: Most
jurisdictions applied a "preponderance of the evidence" standard in
paternity cases, while 38 jurisdictions, at the time
Santosky was decided, required a higher standard of proof in
proceedings to terminate parental rights. See
Rivera, 483 U.
S., at 578-579 (citing
Santosky, 455 U. S., at 749-750).
119
"far more precious than any property right." 455 U. S., at
758-759.
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 Fourteenth Amendment." 455 U. S., at 774
(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."
Id., at 787.
v
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 Fourteenth 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. See
supra, at 114-116. M. L. B.,
on the other hand, maintains that the accusatory state action she
is trying to fend off12 is barely distinguishable from criminal
condemnation in view of the magnitude and permanence of the loss
she faces. Cf.
In re Gault, 387 U. S. 1, 50, 55 (1967)
(resisting "feeble enticement of the 'civil' label-ofconvenience,"
and holding that Fifth Amendment's safeguard against
self-incrimination applies in juvenile proceedings). See also
Santosky, 455 U. S., at 756, 760 (recognizing stigmatic
effect of parental status termination decree: "[I]t entails a
judicial determination that [a parent is] unfit to raise [her] own
children."). For the purpose at hand, M. L. B.
12 See supra, at 116, n. 8.
120
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, 404 U. S. 189 (1971), see
supra, at 111-112, 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,
e. g., Stanley v.
Illinois, 405 U. S., at 651;
Meyer v.
Nebraska, 262 U. S., at 399, 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. See
Ross v.
Moffitt, 417 U. S., at 608-609.
As we said in
Bearden v.
Georgia, 461 U. S. 660, 665
(1983), in the Court's
Griffin-line cases, "[d]ue process
and equal protection principles converge." The equal protection
concern relates to the legitimacy of fencing out would-be
appellants based solely on their inability to pay core costs. See
Griffin, 351 U. S., at 23 (Frankfurter, J., concurring in
judgment) (cited
supra, at 110-111). The due process concern
homes in on the essential fairness of the state-ordered proceedings
anterior to adverse state action. See
Ross, 417 U. S., at
609. A "precise rationale" has not been composed, id., at 608,
because cases of this order "cannot be resolved by resort to easy
slogans or pigeonhole analysis,"
Bearden, 461 U. S., at 666.
Nevertheless, "[m]ost decisions in this area," we have recognized,
"res[t] on an equal protection framework," id., at 665, as M. L.
B.'s plea heavily does, for, as we earlier observed, see
supra, at 110, due process does not independently require
that the State provide a right to appeal. We place this case within
the framework established by our past decisions in this area. In
line with those decisions, we inspect the character and intensity
of the individual interest at stake, on the one hand, and the
State's
121
justification for its exaction, on the other. See
Bearden,
461 U. S., at 666-667.
We now focus on
Mayer and the considerations linking that
decision to M. L. B.'s case.
Mayer, described
supra,
at 111-112, applied
Griffin to a petty offender, fined a
total of $500, who sought to appeal from the trial court's
judgment. See
Mayer, 404 U. S., at 190. An "impecunious
medical student,"
id., at 197, the defendant in
Mayer
could not pay for a transcript. We held that the State must afford
him a record complete enough to allow fair appellate consideration
of his claims. The defendant in
Mayer faced no term of
confinement, but the conviction, we observed, could affect his
professional prospects and, possibly, even bar him from the
practice of medicine.
Ibid. The State's pocketbook interest
in advance payment for a transcript, we concluded, was unimpressive
when measured against the stakes for the defendant.
Ibid.
Similarly here, the stakes for petitioner M. L. B.-forced
dissolution of her parental rights-are large, " 'more substantial
than mere loss of money.'"
Santosky, 455 U. S., at 756
(quoting
Addington v.
Texas, 441 U. S. 418, 424
(1979)). In contrast to loss of custody, which does not sever the
parentchild bond, parental status termination is "irretrievabl[y]
destructi[ve]" of the most fundamental family relationship.
Santosky, 455 U. S., at 753. And the risk of error,
Mississippi's experience shows, is considerable. See
supra,
at 109, n.3.
Consistent with
Santosky, Mississippi has, by statute,
adopted a "clear and convincing proof" standard for parental status
termination cases. Miss. Code Ann. §93-15-109 (Supp. 1996).
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. See
supra, at 107-108.
Only a transcript can reveal to judicial minds other than the
Chancellor's the suffi-
122
ciency, 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. Brief for Respondents 4,
8, n. 1, 27-30. But in the tightly circumscribed category of
parental status termination cases, cf.
supra, at 118, n. 11,
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);
cf. Brief for Respondents 28 (of 63,765 civil actions filed in
Mississippi Chancery Courts in 1995, 194 involved termination of
parental rights; of cases decided on appeal in Mississippi in 1995
(including Court of Appeals and Supreme Court cases), 492 were
first appeals of criminal convictions, 67 involved domestic
relations, 16 involved child custody). Mississippi's experience
with criminal appeals is noteworthy in this regard. In 1995, the
Mississippi Court of Appeals disposed of 298 first appeals from
criminal convictions, Sup. Ct. of Miss. Ann. Rep. 42 (1995); of
those appeals, only seven were appeals from misdemeanor
convictions, ibid., notwithstanding our holding in
Mayer
requiring
in forma pauperis transcript access in petty
offense prosecutions.13
13 Many States provide for
in forma pauperis appeals,
including transcripts, in civil cases generally. See,
e. g.,
Alaska Rule App. Proc. 209(a)(3) (1996); Conn. Rule App. Proc. 4017
(1996); D. C. Code Ann. § 15712 (1995); Idaho Code § 31-3220(5)
(1996); Ill. Compo Stat., ch. 735, § 5/ 5-105.5(b) (Supp. 1996);
Ky. Rev. Stat. Ann. §453.190 (Baldwin 1991); La. Code Civ. Proc.
Ann., Art. 5185 (West Supp. 1996); Me. Rule Civ. Proc. 91(f)
(1996); Minn. Stat. § 563.01, subd. 7 (1994); Mo. Rev. Stat. §
512.150 (1994); Neb. Rev. Stat. §25-2306 (1995); Nev. Rev. Stat. §
12.015.2 (1995); N. M. Stat. Ann. §39-3-12 (1991); N. Y. Civ. Prac.
Law § 1l02(b) (McKinney 1976); Ore. Rev. Stat. § 21.605(3)(a)
(1991); Pa. Rule Jud. Admin. 5000.2(h) (1996); Tex. Rule App. Proc.
53(j)(1) (1996); Vt. Rule App. Proc.
123
In States providing criminal appeals, as we earlier recounted,
an indigent's access to appeal, through a transcript of relevant
trial proceedings, is secure under our precedent. See
supra,
at 110-112. That equal access right holds for petty offenses as
well as for felonies. But counsel at state expense, we have held,
is a constitutional requirement, even in the first instance, only
when the defendant faces time in confinement. See
supra, at
113. When deprivation of parental status is at stake, however,
counsel is sometimes part of the process that is due. See
Lassiter, 452 U. S., at 31-32. It would be anomalous to
recognize a right to a transcript needed to appeal a misdemeanor
conviction-though trial counsel may be flatly denied-but hold, at
the same time, that a transcript need not be prepared for M. L.
B.-though were her defense sufficiently complex, state-paid
counsel, as
Lassiter instructs, would be designated for
her.
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, stated in
Ortwein, that fee requirements ordinarily
are examined only for rationality. See
supra, at 115-116.
The State's need for revenue to offset costs, in the mine run of
cases, satisfies the rationality requirement, see
Ortwein,
410 U. S., at 660; States are not forced by the Constitution to
adjust all tolls to account for "disparity in mate-
10(b)(4) (1996); Wash. Rule App. Proc. 15.4(d) (1996); W. Va.
Code § 59-2l(a) (Supp. 1996);
State ex rel. Girouard v.
Circuit Court for Jackson County, 155 Wis. 2d 148, 454 N. W.
2d 792 (1990).
Several States deal discretely with
in forma pauperis
appeals, including transcripts, in parental status termination
cases. See,
e. g., In re Appeal in Pima County v.
Howard, 112 Ariz. 170, 540 P. 2d 642 (1975); Cal. Family
Code Ann. § 7895(c) (West 1994); Colo. Rev. Stat. § 19-3-609 (Supp.
1996);
Nix v.
Department of Human Resources, 236 Ga.
794, 225 S. E. 2d 306
(1976); In re Chambers, 261 Iowa 31,
152 N. W. 2d 818 (1967); Kan. Stat. Ann. §38-1593 (1986);
In re
Karren, 280 Minn. 377, 159 N. W. 2d 402 (1968); Mich. Rule P.
Ct. 5.974(H)(3) (1996);
In re Dotson, 72 N. J. 112,367 A. 2d
1160 (1976);
State ex rel. Heller v.
Miller, 61 Ohio
St. 2d 6, 399 N. E. 2d 66 (1980);
Ex parte Cauthen, 291 S.
C. 465, 354 S. E. 2d 381 (1987).
124
rial circumstances."
Griffin, 351 U. S., at 23
(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.14 Nor may access to judicial processes in cases criminal
or "quasi criminal in nature,"
Mayer, 404 U. S., at 196
(citation and internal quotation marks omitted), turn on ability to
pay. In accord with the substance and sense of our decisions in
Lassiter and
Santosky, see
supra, at 117-120,
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, 351 U. S., at 24 (Frankfurter, J.,
concurring in judgment); see
supra, at 110.
VI
In numerous cases, respondents point out, the Court has held
that government "need not provide funds so that people
14 The pathmarking voting and ballot access decisions are
Harper v.
Virginia Bd. of Elections, 383 U. S. 663, 664, 666
(1966) (invalidating, as a denial of equal protection, an annual
$1.50 poll tax imposed by Virginia on all residents over 21);
Bullock v.
Carter, 405 U. S. 134, 135, 145,
149 (1972) (invalidating Texas scheme under which candidates for
local office had to pay fees as high as $8,900 to get on the
ballot);
Lubin v.
Pan ish, 415 U. S. 709, 710, 718
(1974) (invalidating California statute requiring payment of a
ballot-access fee fixed at a percentage of the salary for the
office sought).
Notably, the Court in
Harper recognized that "a State may
exact fees from citizens for many different kinds of licenses." 383
U. S., at 668. For example, the State "can demand from all an equal
fee for a driver's license."
Ibid. But voting cannot hinge
on ability to pay, the Court explained, for it is a "'fundamental
political right ... preservative of all rights.'"
Id., at
667 (quoting
Yick Wo v.
Hopkins, 118 U. S. 356, 370
(1886)). Bullock rejected as justifications for excluding
impecunious persons, the State's concern about unwieldy ballots and
its interest in financing elections. 405 U. S., at 144-149.
Lubin reaffirmed that a State may not require from an
indigent candidate "fees he cannot pay." 415 U. S., at 718.
125
can exercise even fundamental rights." Brief for Respondents 12;
see,
e. g., Lyng v.
Automobile Workers, 485 U. S. 360, 363, n. 2,
370-374 (1988) (rejecting equal protection attack on amendment to
Food Stamp Act providing that no household could become eligible
for benefits while a household member was on strike);
Regan
v.
Taxation with Representation of Wash., 461 U. S. 540, 543-544,
550-551 (1983) (rejecting nonprofit organization's claims of free
speech and equal protection rights to receive tax deductible
contributions to support its lobbying activity);
Harris v.
McRae, 448 U.
S. 297, 321-326 (1980) (Medicaid funding need not be provided
for women seeking medically necessary abortions). 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., 489 U. S. 189, 196
(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. That is the very reason we have
paired her case with
Mayer, not with
Ortwein or
Kras, discussed
supra, at 114-116.
Respondents also suggest that
Washington v.
Davis,
426 U. S. 229 (1976), is instructive because it rejects the
notion "that a law, neutral on its face and serving ends
otherwise
126
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," id., at 242. "This must be
all the more true," respondents urge, "with respect to an allegedly
disparate impact on a class [here, the poor] that, unlike race, is
not suspect." Brief for Respondents 31.
Washington v.
Davis, however, does not have the
sweeping effect respondents attribute to it. That case involved a
verbal skill test administered to prospective Government employees.
"[A] far greater proportion of blacks-four times as many-failed the
test than did whites." 426 U. S., at 237. But the successful test
takers included members of both races, as did the unsuccessful
examinees. Disproportionate impact, standing alone, the Court held,
was insufficient to prove unconstitutional racial discrimination.
Were it otherwise, a host of laws would be called into question, "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."
Id., at
248.
To comprehend the difference between the case at hand and cases
controlled by
Washington v.
Davis,15 one need look no
further than this Court's opinion in
Williams v.
Illinois, 399
U. S. 235 (1970).
Williams held unconstitutional an
Illinois law under which an indigent offender could be continued in
confinement beyond the maximum prison term specified by statute if
his indigency prevented him from satisfying the monetary portion of
the sentence. The Court described that law as "'nondiscriminatory
on its face,'" and recalled that the law found incompatible with
the Constitution in
Griffin had been so characterized. 399
U. S., at 242 (quoting
Griffin, 351 U. S., at 17, n. 11);
see
Griffin, 351 U. S., at 17, n. 11
15 See Personnel Administrator of Mass. v. Feeney,
442 U. S. 256 (1979);
Arlington Heights v. Metropolitan Housing Development Corp.,
429 U. S. 252
(1977).
127
("[A] law nondiscriminatory on its face may be grossly
discriminatory in its operation."). But the
Williams Court
went on to explain that "the Illinois statute in operative effect
exposes
only indigents to the risk of imprisonment beyond
the statutory maximum." 399 U. S., at 242 (emphasis added).
Sanctions of the
Williams genre, like the Mississippi
prescription here at issue, are not merely
disproportionate
in impact. Rather, they are wholly contingent on one's ability to
pay, and thus "visi[t] different consequences on two categories of
persons,"
ibid.; they apply to all indigents and do not
reach anyone outside that class.
In sum, under respondents' reading of
Washington v.
Davis, our overruling of the
Griffin line of cases
would be two decades overdue. It suffices to point out that this
Court has not so conceived the meaning and effect of our 1976
"disproportionate impact" precedent. See
Bearden v.
Georgia, 461 U. S., at 664-665 (adhering in 1983 to
"Griffin's principle of 'equal justice' ").16
Respondents and the dissenters urge that we will open floodgates
if we do not rigidly restrict
Griffin to cases typed
"criminal." See
post, at 141-144 (THOMAS, J., dissenting);
Brief for Respondents 27-28. 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. See
supra, at
117-120, and n. 11. To recapitulate, termination decrees "wor[k] a
unique kind of deprivation."
Lassiter, 452 U. S., at 27. In
contrast to matters modifiable at
16 Six of the seven Justices in the majority in
Washington v.
Davis, 426 U. S. 229 (1976), had two
Terms before
Davis read our decisions in
Griffin and
related cases to hold that "[t]he State cannot adopt procedures
which leave an indigent defendant 'entirely cut off from any appeal
at all,' by virtue of his indigency, or extend to such indigent
defendants merely a 'meaningless ritual' while others in better
economic circumstances have a 'meaningful appeal.'"
Ross v.
Moffitt, 417
U. S. 600,612 (1974) (opinion of the Court by REHNQUIST, J.)
(citations omitted).
128
KENNEDY, J., concurring in judgment
the parties' will or based on changed circumstances, termination
adjudications involve the awesome authority of the State "to
destroy permanently all legal recognition of the parental
relationship."
Rivera, 483 U. S., at 580. Our
Lassiter and
Santosky decisions, recognizing that
parental termination decrees are among the most severe forms of
state action,
Santosky, 455 U. S., at 759, have not served
as precedent in other areas. See
supra, at 118, n. 11. We
are therefore satisfied that the label "civil" should not entice us
to leave undisturbed the Mississippi courts' disposition of this
case. Cf.
In re Gault, 387 U. S., at 50.
***
For the reasons stated, we hold that Mississippi may not
withhold from M. L. B. "a 'record of sufficient completeness' to
permit proper [appellate] consideration of [her] claims."
Mayer, 404 U. S., at 198. Accordingly, we reverse the
judgment of the Supreme Court of Mississippi and remand the case
for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE KENNEDY, concurring in the judgment.
The Court gives a most careful and comprehensive recitation of
the precedents from
Griffin v.
Illinois, 351 U. S. 12 (1956),
through
Mayer v.
Chicago, 404 U. S. 189 (1971), and
beyond, a line of decisions which invokes both equal protection and
due process principles. The duality, as the Court notes, stems from
Griffin itself, which produced no opinion for the Court and
invoked strands of both constitutional doctrines.
In my view the cases most on point, and the ones which persuade
me we must reverse the judgment now reviewed, are the decisions
addressing procedures involving the rights and privileges inherent
in family and personal relations.
129
These are
Boddie v.
Connecticut, 401 U. S. 371 (1971);
Lassiter v.
Department of Social Servs. of Durham
Cty., 452 U. S.
18 (1981); and
Santosky v.
Kramer, 455 U. S. 745 (1982), all
cases resting exclusively upon the Due Process Clause. Here, due
process is quite a sufficient basis for our holding.
I acknowledge the authorities do not hold that an appeal is
required, even in a criminal case; but given the existing appellate
structure in Mississippi, the realities of the litigation process,
and the fundamental interests at stake in this particular
proceeding, the State may not erect a bar in the form of transcript
and filing costs beyond this petitioner's means. The Court well
describes the fundamental interests the petitioner has in ensuring
that the order which terminated all her parental ties was based
upon a fair assessment of the facts and the law. See
Mathews
v.
Eldridge, 424 U. S. 319, 335
(1976). With these observations, I concur in the judgment.
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.
Today the majority holds that the Fourteenth Amendment requires
Mississippi to afford petitioner a free transcript because her
civil case involves a "fundamental" right. The majority seeks to
limit the reach of its holding to the type of case we confront
here, one involving the termination of parental rights. I do not
think, however, that the new-found constitutional right to free
transcripts in civil appeals can be
130
effectively restricted to this case. The inevitable consequence
will be greater demands on the States to provide free assistance to
would-be appellants in all manner of civil cases involving
interests that cannot, based on the test established by the
majority, be distinguished from the admittedly important interest
at issue here. The cases on which the majority relies, primarily
cases requiring appellate assistance for indigent criminal
defendants, were questionable when decided, and have, in my view,
been undermined since. Even accepting those cases, however, I am of
the view that the majority takes them too far. I therefore
dissent.
I
Petitioner requests relief under both the Due Process and Equal
Protection Clauses, though she does not specify how either Clause
affords it. The majority accedes to petitioner's request. But,
carrying forward the ambiguity in the cases on which it relies, the
majority does not specify the source of the relief it grants. Those
decisions are said to "reflect both equal protection and due
process concerns."
Ante, at 120. And, while we are told that
"cases of this order 'cannot be resolved by resort to easy slogans
or pigeonhole analysis,'"
ibid. (quoting
Bearden v.
Georgia, 461
U. S. 660, 666 (1983)), the majority nonetheless acknowledges
that "'[m]ost decisions in this area ... reset] on an equal
protection framework,'"
ante, at 120 (quoting
Bearden,
supra, at 665). It then purports to "place this case within the
framework established by our past decisions in this area."
Ante, at 120. It is not clear to me whether the majority
disavows any due process support for its holding. (Despite the
murky disclaimer, the majority discusses numerous cases that
squarely relied on due process considerations.) I therefore analyze
petitioner's claim under both the Due Process and Equal Protection
Clauses. If neither Clause affords petitioner the right to a free,
civil-appeal transcript, I assume that no amalgam of the two
does.
131
A
We have indicated on several occasions in this century that the
interest of parents in maintaining their relationships with their
children is "an important interest that 'undeniably warrants
deference and, absent a powerful countervailing interest,
protection.'"
Lassiter v.
Department of Social Servs. of
Durham Cty., 452
U. S. 18, 27 (1981) (quoting
Stanley v.
Illinois,
405 U. S. 645,
651 (1972)). Assuming that petitioner's interest may not be
impinged without due process of law, I do not think that the Due
Process Clause requires the result the majority reaches.
Petitioner's largest obstacle to a due process appeal
gratis is our oft-affirmed view that due process does not
oblige States to provide for any appeal, even from a criminal
conviction. See,
e. g., Griffin v.
Illinois, 351 U. S. 12, 18 (1956)
(plurality opinion) (noting that "a State is not required by the
Federal Constitution to provide appellate courts or a right to
appellate review at all" (citation omitted));
McKane v.
Durston, 153
U. S. 684, 687 (1894) ("A review by an appellate court of the
final judgment in a criminal case, however grave the offence of
which the accused is convicted, was not at common law and is not
now a necessary element of due process of law. It is wholly within
the discretion of the State to allow or not to allow such a review.
A citation of authorities upon the point is unnecessary"). To be
sure, we have indicated, beginning with
Griffin v.
Illinois, that where an appeal is provided, States may be
prohibited from erecting barriers to those unable to pay. As I
described last Term in my concurring opinion in
Lewis v.
Casey, 518 U.
S. 343, 368373 (1996), however, I believe that these cases are
best understood as grounded in equal protection analysis, and thus
make no inroads on our longstanding rule that States that accord
due process in a hearing-level tribunal need not provide further
review.
The majority reaffirms that due process does not require an
appeal.
Ante, at 110, 120. Indeed, as I noted above, it
132
is not clear that the majority relies on the Due Process Clause
at all. The majority does discuss, however, one case in which the
Court stated its holding in terms of due process:
Boddie v.
Connecticut, 401 U. S. 371 (1971). In
Boddie, the Court held violative of due process a
Connecticut statute that exacted fees averaging $60 from persons
seeking marital dissolution. Citing the importance of the interest
in ending a marriage, and the State's monopoly over the mechanisms
to accomplish it, we explained that, "at a minimum" and "absent a
countervailing state interest of overriding significance, persons
forced to settle their claims of right and duty through the
judicial process must be given a meaningful opportunity to be
heard."
Id., at 377.
Boddie has little to do with
this case. It, "of course, was not concerned with post-hearing
review."
Ortwein v.
Schwab, 410 U. S. 656, 659
(1973). Rather, the concern in
Boddie was that indigent
persons were deprived of "fundamental rights" with no hearing
whatsoever. Petitioner, in contrast, received not merely a hearing,
but in fact enjoyed procedural protections above and beyond what
our parental termination cases have required. She received both
notice and a hearing before a neutral, legally trained
decisionmaker. She was represented by counsel-even though due
process does not in every case require the appointment of counsel.
See
Lassiter, supra, at 24. Through her attorney, petitioner
was able to confront the evidence and witnesses against her. And,
in accordance with
Santosky v.
Kramer, 455 U. S. 745, 769
(1982), the Chancery Court was required to find that petitioner's
parental unfitness was proved by clear and convincing evidence.
Indeed, petitioner points to no hearinglevel process to which she
was entitled that she did not receive.
Given the many procedural protections afforded petitioner, I
have little difficulty concluding that "due process has ... been
accorded in the tribunal of first instance."
Ohio ex rel.
Bryant v.
Akron Metropolitan Park Dist., 281 U. S. 74, 80
133
(1930). Due process has never compelled an appeal where, as
here, its rigors are satisfied by an adequate hearing. Those cases
in which the Court has required States to alleviate financial
obstacles to process beyond a hearing-though sometimes couched in
due process terms-have been based on the equal protection
proposition that if the State chooses to provide for appellate
review, it " 'can no more discriminate on account of poverty than
on account of religion, race, or color.'"
Lewis v.
Casey,
supra, at 371 (THOMAS, J., concurring) (quoting
Griffin
v.
Illinois, supra, at 17 (plurality opinion)) (footnote
omitted). There seems, then, no place in the Due Process
Clause-certainly as an original matter, and even as construed by
this Court-for the constitutional "right" crafted by the majority
today. I turn now to the other possible source: The Equal
Protection Clause.
B
As I stated last Term in
Lewis v.
Casey, I do not
think that the equal protection theory underlying the
Griffin line of cases remains viable. See 518 U. S., at
373-378. There, I expressed serious reservations as to the
continuing vitality of
Bounds v.
Smith, 430 U. S. 817 (1977)
(requiring prison authorities to provide prisoners with adequate
law libraries or legal assistance). As it did in
Bounds, 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," 351 U. S., at 18 (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 excep-
134
tions or the reasonableness of the general requirement that the
trial transcript, if used in its preparation, be paid for by the
appealing party."
Id., at 35. 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.'"
Ibid. 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." Ibid.
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."
Ibid. (emphasis deleted). 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, 372 U. S. 353 (1963),
Justice Harlan again confronted what Justice Clark termed the
Court's "fetish for indigency," id., at 359 (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 handi-
135
caps flowing from differences in economic circumstances.'"
Id., at 362 (dissenting opinion) (footnote omitted).
Justice Harlan's views were accepted by the Court in
Washington v.
Davis, 426 U. S. 229 (1976), in
which "[w]e rejected a disparate impact theory of the Equal
Protection Clause altogether."
Lewis v.
Casey, supra,
at 375 (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." 426 U. S., at 242. Absent proof of discriminatory
purpose, official action did not violate the Fourteenth Amendment
"solely because it has a racially disparate impact."
Id., at 239 (emphasis in original). 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."
426 U. S., at 248 (footnote omitted).
The lesson of
Davis 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 Mass.
Since
Davis, we have regularly required more of an equal
protection claimant than a showing that state action has a
136
harsher effect on him or her than on others. See,
e. g.,
Harris v.
McRae, 448 U. S. 297, 324, n. 26
(1980) ("The equal protection component of the Fifth 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" (internal quotation marks and citations
omitted)); see also
Lewis v.
Casey, 518 U. S., at 375
(concurring opinion) (citing cases). Our frequent pronouncements
that the Fourteenth Amendment is not violated by disparate impact
have spanned challenges to statutes alleged to affect
disproportionately members of one race,
Washington v.
Davis, supra; members of one sex,
Personnel
Administrator v.
Feeney, supra; and poor persons seeking
to exercise protected rights,
Harris v.
McRae, supra;
Maher v.
Roe, 432 U. S. 464, 470-471
(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."
Ante, at 125. 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."
Ibid. She, "[l]ike a defendant resisting
criminal conviction, ... seeks to be spared from the State's
devastatingly adverse action."
Ibid. But, also like a
defendant resisting criminal conviction, petitioner is not
constitutionally entitled to post-trial process. See
ante,
at 110, 120. 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 initi-
137
ated" 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, 399 U. S. 235 (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
Davis. See
Williams, supra, at 260
(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 extrastatutory 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. 399 U. S., at 242. 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."
Ante,
at 127. 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 tak-
138
ing 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.1
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 Fourteenth 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
Davis, 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.2 Any ad-
1 Similarly,
Harper v.
Virginia Ed. of Elections,
383 U. S. 663
(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.
2 Petitioner suggests that Mississippi's $2 per page charge
exceeds the actual cost of transcription. See Reply Brief for
Petitioner 8. She stops short of asserting that the charge is
unreasonable or irrational. While not conclusive, I note that
Mississippi's transcript charge falls comfortably within the range
of charges throughout the Nation. See,
e. g., Ariz. Rev.
Stat. Ann. § 12-224(B) (1992) ($2.50/page); Idaho Code § 1-1105(2)
(1990) ($2/page); Mass. Gen. Laws §221:88 (1994) ($3/page); Mo.
Rev. Stat. § 485.100 (1994) ($ 1. 50/page); N. M. Stat. Ann. §
34-6-20(C) (1996) ($1.65/page); R. I. Gen. Laws §8-5-5 (Supp. 1995)
(family court transcripts, $3/page); S. C. App. Ct. Rule 508
($2/page).
139
verse 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.
II
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.
The interest at stake in this case differs in several important
respects from that at issue in cases such as
Griffin.
Petitioner's interest in maintaining a relationship with her
children is the subject of a civil, not criminal, action. While
certain civil suits may tend at the margin toward criminal cases,
and criminal cases may likewise drift toward civil suits, the basic
distinction between the two finds root in the Constitution and has
largely retained its vitality in our jurisprudence. In dissent in
Boddie v.
Connecticut, Justice Black stated that "in
Griffin the Court studiously and carefully refrained from
saying one word or one sentence suggesting that the rule there
announced to control rights of criminal defendants would control in
the quite different field of civil cases." 401 U. S., at 390. The
Constitution provides for a series of protections of the unadorned
liberty interest at stake in criminal proceedings. These express
protections include the Fifth Amendment's guarantee of grand jury
indictment, and protection against double jeopardy and
selfincrimination; the Sixth Amendment's guarantees of a speedy and
public jury trial, of the ability to confront witnesses, and of
compulsory process and assistance of counsel; and the Eighth
Amendment's protections against excessive bail and fines, and
against cruel and unusual punishment. This Court has given content
to these textual protections, and has identified others contained
in the Due Process Clause. These protections are not available to
the typical
140
civil litigant. Even where the interest in a civil suit has been
labeled "fundamental," as with the interest in parental termination
suits, the protections extended pale by comparison. A party whose
parental rights are subject to termination is entitled to appointed
counsel, but only in certain circumstances. See
Lassiter,
452 U. S., at 31-32. His or her rights cannot be terminated unless
the evidence meets a standard higher than the preponderance
standard applied in the typical civil suit, but the standard is
still lower than that required before a guilty verdict. See
Santosky v.
Kramer, 455 U. S., at 769-770.
That said, it is true enough that civil and criminal cases do
not always stand in bold relief to one another.
Mayer v.
Chicago, 404
U. S. 189 (1971), marks a particularly discomfiting point along
the border between the civil and criminal areas. Based on
Griffin, the Court determined there that an indigent
defendant had a constitutional right to a free transcript in aid of
appealing his conviction for violating city ordinances, which
resulted in a $500 fine and no imprisonment. In
Scott v.
Illinois, 440
U. S. 367 (1979), we concluded that an indigent defendant
charged with a crime that was not punishable by imprisonment was
not entitled to appointed counsel. And yet, in
Lassiter,
supra, we held that, in some cases, due process required
provision of assistance of counsel before the termination of
parental rights. The assertion that civil litigants have no right
to the free transcripts that all criminal defendants enjoy is
difficult to sustain in the face of our holding that some civil
litigants are entitled to the assistance of counsel to which some
criminal defendants are not. It is at this unsettled (and
unsettling) place that the majority lays the foundation of its
holding. See
ante, at 120-124. The majority's solution to
the "anamol[yJ" that a misdemeanant receives a free transcript but
no trial counsel, while a parental-rights terminee receives
(sometimes) trial counsel, but no transcript, works an extension of
Mayer. I
141
would answer the conundrum differently: Even if the
Griffin line were sound,
Mayer was an unjustified
extension that should be limited to its facts, if not
overruled.
Unlike in
Scott and
Lassiter, the Court gave short
shrift in
Mayer to the distinction, as old as our
Constitution, between crimes punishable by imprisonment and crimes
punishable merely by fines. See
Lassiter, supra, at 26-27;
Scott, supra, at 373. Even though specific text-based
constitutional protections have been withheld in cases not
involving the prospect of imprisonment, the Court found the
difference of no moment in
Mayer. The Court reasoned that
"[t]he invidiousness of the discrimination that exists when
criminal procedures are made available only to those who can pay is
not erased by any differences in the sentences that may be
imposed." 404 U. S., at 197. We reap today what we sowed then. If
requiring payment for procedures (e. g., appeals) that are not
themselves required is invidious discrimination no matter what
sentence results, it is difficult to imagine why it is not
invidious discrimination no matter what results and no matter
whether the procedures involve a criminal or civil case. See
supra, at 135. To me this points up the difficulty
underlying the entire
Griffin line. Taking the
Griffin line as a given, however, and in the absence of any
obvious limiting principle, I would restrict it to the criminal
appeals to which its authors, see
Boddie v.
Connecticut,
401 U. S., at 389 (Black, J., dissenting), sought to limit
it.
The distinction between criminal and civil cases-if blurred at
the margins-has persisted throughout the law. The distinction that
the majority seeks to draw between the case we confront today and
the other civil cases that we will surely face tomorrow is far more
ephemeral. If all that is required to trigger the right to a free
appellate transcript is that the interest at stake appear to us to
be as fundamental as the interest of a convicted misdemeanant,
several kinds of civil suits involving interests that seem
fundamental
142
enough leap to mind. Will the Court, for example, nowextend the
right to a free transcript to an indigent seeking to appeal the
outcome of a paternity suit? 3 To those who wish to appeal custody
determinations? 4 How about persons against whom divorce decrees
are entered? 5 Civil suits that arise out of challenges to zoning
ordinances with an impact on families? 6 Why not foreclosure
actions-or at least fore-
3 In
Little v.
Streater, 452 U. S. 1 (1981), we held
that the Due Process Clause required the States to provide a free
blood grouping test to an indigent defendant in a paternity action.
The Court observed that "[a]part from the putative father's
pecuniary interest in avoiding a substantial support obligation and
liberty interest threatened by the possible sanctions for
noncompliance, at issue is the creation of a parent-child
relationship. This Court frequently has stressed the importance of
familial bonds, whether or not legitimized by marriage, and
accorded them constitutional protection. Just as the termination of
such bonds demands procedural fairness, so too does their
imposition."
Id., at 13 (citations omitted).
Little's
description of the interest at stake in a paternity suit seems to
place it on par with the interest here.
Justice Blackmun, dissenting in
Lassiter v.
Department
of Social Servs. of Durham Cty., 452 U. S. 18, 58 (1981),
recognized as much: "I deem it not a little ironic that the Court
on this very day grants, on due process grounds, an indigent
putative father's claim for state-paid blood grouping tests in the
interest of according him a meaningful opportunity to disprove his
paternity,
Little v.
Streater, [supra,] but in the
present case rejects, on due process grounds, an indigent mother's
claim for state-paid legal assistance when the State seeks to take
her own child away from her in a termination proceeding." (Emphasis
deleted.)
As the majority indicates,
ante, at 118, n. 11, we have
distinguishedin my view unpersuasively-between the requirements of
due process in paternity suits and in termination suits. See
Rivera v.
Minnich, 483 U. S. 574 (1987).
Whether we will distinguish between paternity appellants and
misdemeanor appellants remains to be seen.
4 See,
e. g., Zakrzewski v.
Fox, 87 F.3d
1011, 1013-1014
(CA8 1996) (father's "fundamental"
"liberty interest in the care, custody and management of his son
has been substantially reduced by the terms of the divorce decree
and Nebraska law").
5 In
Boddie v.
Connecticut, 401 U. S. 371 (1971), we
referred to a divorce as the "adjustment of a fundamental human
relationship."
Id., at 382-383.
6 See, e. g., Moore v. East Cleveland,
431 U. S. 494 (1977).
143
closure actions seeking to oust persons from their homes of many
years? 7
The majority seeks to provide assurances that its holding will
not extend beyond parental termination suits. The holdings of
Santosky and
Lassiter-both of which involved parental
termination-have not, we are told, been applied to other areas of
law.
Ante, at 128. This is not comforting. Both
Santosky and
Lassiter are cases that determined the
requirements of due process (not equal protection) in the parental
rights termination area. As the Court has said countless times, the
requirements of due process vary considerably with the interest
involved and the action to which it is subject. It is little
wonder, then, that the specific due process requirements for one
sort of action are not readily transferable to others. I have my
doubts that today's opinion will be so confined. In the first
place, it is not clear whether it is an equal protection or a due
process opinion. Moreover, the principle on which it appears to
rest hardly seems capable of stemming the tide. Petitioner is
permitted a free appellate transcript because the interest that
underlies her civil claim compares favorably to the interest of the
misdemeanant facing a $500 fine and unknown professional
difficulties in
Mayer v.
Chicago. Under the rule
announced today, I do not see how a civil litigant could
constitutionally be denied a free transcript in any case that
involves an interest that is arguably as important as the interest
in
Mayer (which would appear to include all the types of
cases that I mention above, and perhaps many others).8 What is
more, it must be remembered that
Griffin did not merely
invent
7 Cf.
Lindsey v.
Normet, 405 U. S. 56, 89-90 (1972)
(Douglas, J., dissenting in part) ("[W]here the right is so
fundamental as the tenant's claim to his home, the requirements of
due process should be more embracing").
8 Accordingly, Mississippi will no doubt find little solace in
the fact that, as the majority notes, of 63,765 civil actions filed
in Mississippi Chancery Court in 1995, 194 were parental
termination cases.
Ante, at 122. Mississippi pointed out in
its brief that of these civil actions, "39,475 were domestic
relations cases," "1027 involved custody or visitation, and 6080
were paternity cases." Brief for Respondents 28.
144
the free transcript right for criminal appellants; it was also
the launching pad for the discovery of a host of other rights. See,
e. g., Bounds, 430 U. S., at 822 (right to prison law
libraries or legal assistance);
Douglas, 372 U. S., at 356
(right to free appellate counsel). I fear that the growth of
Griffin in the criminal area may be mirrored in the civil
area.
In brushing aside the distinction between criminal and civil
cases-the distinction that has constrained
Griffin for 40
years-the Court has eliminated the last meaningful limit on the
free-floating right to appellate assistance. From
Mayer, an
unfortunate outlier in the
Griffin line, has sprung the
M. L. B. line, and I have no confidence that the majority's
assurances that the line starts and ends with this case will hold
true.
III
As the majority points out, many States already provide for
in forma pauperis civil appeals, with some making special
allowances for parental termination cases. I do not dispute the
wisdom or charity of these heretofore voluntary allocations of the
various States' scarce resources. I agree that, for many-if not
most-parents, the termination of their right to raise their
children would be an exaction more dear than any other. It seems
perfectly reasonable for States to choose to provide
extraconstitutional procedures to ensure that any such termination
is undertaken with care. I do not agree, however, that a State that
has taken the step, not required by the Constitution, of permitting
appeals from termination decisions somehow violates the
Constitution when it charges reasonable fees of all would-be
appellants. I respectfully dissent.
Comments
Be the first to comment
Leave a Comment