Jurisdictional Statement — Harris v. Fuerst

RECEIVED

MAR 2 1981

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

80-6277

ROSE HARRIS,

Appellant,

Vv.

GERALD FUERST,

Appellee.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Appellant Rose Harris hereby seeks leave to file the

attached Jurisdictional Statement to appeal a final judgment

from the Supreme Court of Ohio without prepayments of costs

and to proceed in forma pauperis hereto. Attached to this

CEL o.

ROBERT S. CATZ

motion is Appellant's affidavit of poverty.

Cleveland State University

College of Law

Cleveland, Ohio 44115

(216) 687-2525

Counsel for Appellant

RECEIVED

MAR 2 1941

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

no. $0--§277

ROSE HARRIS, Appellant,

vs.

GERALD E. FUERST, Appellee.

AFFIDAVIT

I, ROSE HARRIS, being first duly sworn according to

law, depose and say, in support of my motion for leave to

proceed without being required to prepay costs or fees: 1.

I am an appellant in the above-entitled case. 2. Because

of my poverty, I am unable to pay the costs of said cause.

3. I am unable to give security for the same. 4. I believe

I am entitled to the redress I seek in said cause. 5. The

nature of said cause is stated briefly, as follows:

Appellant appeals from a decision of the Supreme Court

of Ohio, dismissing an action.seeking to declare an unconstitution

al court rule which requires indigents to pay publication fees

in a divorce case.

this Dap day of ee 1981.

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RECEIVED

MAR 2 1951 ;

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-

ROSE HARRIS,

Appellant,

vs.

GERALD E. *U<aST,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF OHIO

JURISDICTIONAL STATEMENT

ROBERT S. CATZ

NANCY LEE FIRAK

JUDITH ZIMMER

College of Law

Cleveland State University

Cleveland, Ohio 44115

(216) 687-2525

COUNSEL FOR APPELLANT

Pt March 1981

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-

ROSE HARRIS, ’

Appellant,

vs.

GERALD E. FUERST,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF OHIO

QUESTION PRESENTED ;

,

Whether court rules adopted pursuant to state statute

requiring prepayment of publication costs as a prerequisite

to the filing of an action for divorce or dissolution of the

marital relationship unconstitutionally restrict an indiyent's

access to state courts.

TABLE OF CONTENTS

Opinion Below . . * . . . . . . “« . 7. . . . . * . > . . .

Dee aS 6 Me 8 Wik. oe 6. 8 8 le le 0 be me oe 8S

Statutes and Rules Involved . .....+4 +++ 2 © © © © # &

Nature of the Statutory Scheme Involved .. ++ +++eee-8

Gtavement OF CABR 6. 6 66 4 we Sie 6 eee oe oe ee te

Raising the Federal Question ....+ +++ + © © «© # # »

The Federal Question is Substantial . . . . + 2+ «© «+ «+ © «+s

ES oy eM eG 6) See ere & 0 6 6 8 8 6 ee, 6 6 ee

Certificate of Service . 1... «© «© «© « ee ee © wo ow © oo

Appe nd ix . . . . 7 7 . . . . . . . . 7 . . . ° . . . . . .

TABLE OF AUTHORITIES

Cases

Ashley v. Superior Court, 509 P.2d 751 (Wash. 1973) ....

Boddie v. Connecticut, 401 U.S. 371 (1971). . ©. «© « «© «© «© «

Deo. rower. 296 Bae Bee (6.8. 1972) .« « « we 6 ee

Cohen v. Board of Superiors, 97 Cal. Rptr. 550 (Cal. App.

1971). . > . om . * . . . . . . . . * .* . * . * .* . 7. .

Conley Vv. Gibson, 355 U.S. 41 (1957) . . . . . . . 7 . . .

Craig Vv. Harvey, 331 U.S. 367 (1947) . . . . . . . . . . .

pesson ¥. Deason, 2e6 W.B. 24 299: (W.Y¥. 3973) « « 0 ww © ec

Dungan v. Dungan, 579 S.W. 2d 183 (Tenn. 1979). . ....-s

Grissom v. Dade County, 293 So. 2d 59 (Pla. 1974) .....

Hart v. Superior Court, 492 P.2d 433 (Ariz. App. 1971) ..

Johnson v. Stevens, 265 S.E. 2d 764 (W.Va. 1980) .....

King v. King, 316 N.E. 2d 555 (Ill. App. 1974). ......

NAACP v. Alabama, 377 U.S. 449 (1958) . . . «2. © «© we ee

Napue Vv. Tllinois, 360 U.S. 264 (1959) . . . . . . . . . .

Deen O. poem, 2Oe 8. SOP £2939) . i 0's wee we

i Mh eens Ore Mis Fie Lae eRe 6 o 0. « 0 6. ee @ \bi* @

State ex rel. Heller v. Miller, 399 N.E. 2d 66 (Ohio 1980).

ii

o fo O& ©

IN THE

SUPREME COURT OF THE UNITED STATES

ROSE HARRIS,

Appellant,

vs.

GERALD E. FUERST,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF OHIO

Appellant Rose Harris appeals from the final judgment of

the Supreme Court of Ohio entered December 17, 1980, dismissing

an original complaint for mandamus which challenges the con-

Stitutionality of court rules that require prepayment of

publication costs as a prerequisite to the filing of actions

for divorce, effectively denying indigents access to the courts.

OPINION BELOW

The opinion of the Supreme Court of Ohio, attached hereto,

in reported at 64 Ohio St. 2d 128, 413 N.E. 24 826 (1980).

JURISDICTION

The judgment of the Supreme Court of Ohio was entered on

Decemker 17, 1980. A notice of appeal was filed on January

20, 1981. This appeal is being docketed in this Court within

90 days from the date of judgment. ‘The jurisdiction of this

Court is invoked under 28 U.S.C. §1257(2).

STATUTES AND RULES INVOLVED

Ohio Revised Code §2701.09

In any county in which a daily law journal is

printed, the judges of the courts of record,

other than the court of appeals, shall jointly

designate such daily law journal as the journal

in which shall be published all calendars of

the courts of record in such county, which

calendars shall contain the numbers and titles

of causes, and names of attorneys appearing

therein, together with the motion dockets and

such particulars and notices respecting causes,

as may be specified by the judges, and each

notice required to be published by any of such

judges. —

In all cases, proceedings, administrations of

estates, assignments, and matters pending in

any of the courts of record of such counties

in which legal notices or advertisements are

required to be published, such law journal

shall, once a week and on the same day of the

week, publish an abstract of each such legal

advertisement, but the jurisdiction over, or

irregularity of, a proceeding, trial, or

judgment shall not be affected by anything

therein.

For the publication of such calendars, motion

dockets, and notices, the fees for which are

not fixed by law, the publisher of the paper

shall receive a sum to be fixed by the judges

for each case brought, to be paid in advance by

the party filing the petition, transcripts

for appeal, or lien, to be taxed in the costs

and coldjected as other costs. For the publica-~-

tion of abstracts of legal advertising such

publisher shall receive a sum to be fixed by

judges for each case, proceeding, or matter,

in which such advertising is had, to be taxed

and collected as a part of the costs thereof.

Ohio Revised Code §3105.06

If the residence of a Defendant in an action for

divorce, annulment, or alimony is unknown, or if

the Defendant is not a resident of this state or

is a resident of this state but absent from the

state, notice of the pendency of the action must

be given by publication as provided by the Rules

of Civil Procedure.

Rule 4.4 of the Ohio Rules of Civil Procedure

(A) When the residence of a defendant is unknown,

service shall be made by publication in

actions where such service is authorized by

by law. .. -

Rule 7 of the Court of Common Pleas of Cuyahoga County

(A) No civil action or proceeding shall be

accepted for filing unless the party

offering the same for filing shall have

first deposited a sum to secure the payment

of the costs that may accrue in such action

or proceeding, except as otherwise provided

by law.

Service by publication . ....$ 35.00

Rule 14 of the Court of Common Pleas of Cuyahoga County

(a) The “Daily Legal News and Cleveland Recorder,”

a daily law journal, is hereby designated as

the official publicaticn of this court. All

official and legal notices required by law or

ordered by the court to be published shall be

published in said daily law journal. For

the publication of such notices, the publisher

of said daily law journal shall receive Five

Dollars ($5.00) for each case brought, to be

paid in advance by the party filing a complaint,

transcript for appeal or lien, to be taxed in

the costs and collected as other costs and as

provided in R.C. §2701.09.

(b) The publisher of the daily law journal shall

receive the sum of Three Dollars ($3.00) for

each entry the daily law journal is required

by law to publish in the “abstract” and the

Clerk of Courts shall tax as costs the sum of

Three Dollars ($3.00) for each such entry made.

NATURE OF THE STATUTORY SCHEME INVOLVED

Appellant contends here, as she did before the Ohio Supreme

Court, that the Rules of the Cuyahoga County Court of Common Pleas

adopted pursuant to a state statute prevent her from exercising

fundamental rights guaranteed by the U.S. Constitution, heieutunets

XIV, §l1, and by this Court's holding in Boddie v. Connecticut,

401 U.S. 371 (1971).

The statutory scheme which forms the basis for the denial

of federal substantive rights in this case begins with the grant

of power to the Court of Common Pleas to hear divorce actions where

there has been “willful absence of the adverse party for one year."

Ohio Rev. Code §3105.01(B). The divorce action must be brought

pursuant to the local rules of the Court of Common Pleas in “the

proper county for commencement of the action." Ohio Rev. Code §3105.03.

Under Rule 3(A), Ohio Rules of Civil Procedure, "A civil action

is commenced by filing a complaint with the Court." Ohio statute

provides that "[T]he clerk of the Court of Common Pleas shall

file together and carefully preserve in his office all papers

delivered to him for that purpose in every action or proceeding."

Ohio Rev. Code §2303.09.

9

Further statutory provision for publication requires that:

In any county in which a daily law journal is

printed, the judges of the courts of record,

other than the court of appeals, shall jointly

designate such daily law journal as the journal

in which shall be published all calendars of

the courts of record in such county, which

calendars shall contain the numbers and titles

of causes, and names of attorneys appearing

therein, together with the motion dockets and

such particulars and notices respecting causes,

as may be specified by the judges, and each

notice required to be published by any of such

judges.

In all cases, proceedings, administrations of

estates, assignments, and matters pending

in any of the courts of record of such counties

in which legal notices or advertisements are

required to be published, such law journal

shall, one a week and on the same day of

the week, publish an abstract of each such

legal advertisement, but the jurisdiction over,

or irregularity of, a proceeding, trial, or

judgment shall not be affected by anything

therein.

For the publication of such calendars, motion

dockets, and notices, the fees for which are

not fixed by law, the publisher of the paper

shall receive a sum to be fixed by the judges

for each case brought, to be paid in advance

by the party filing the petition, transcripts

for appeal, or lien, to be taxed in the costs

and collected as other costs. For the pub)ica-

tion of abstracts of legal advertising such

publisher shall receive a sum to be fixed by

judges for each case, proceeding, or matter,

in which such advertising is had, to be taxed

and collected as a part of the costs thereof.

Ohio Rev. Code §2701.09.

Pursuant to this statute the Rules of the Court of Coinmon Pleas

for Cuyahoga County under Rule 14(A),(B) provide:

(A) The “Daily Legal News and Cleveland

Recorder," a daily law journal, is hereby

designated as the official publication of

this court. All official and legal notices

required by law or ordered by the court

to be published shall be published in said

daily law journal. For the publication of

such notices, the publisher of said daily

law journal shall receive Five Dollars

($5.00) for each case brought, to be paid

in advance by the party filing a complaint,

transcript for appeal or lien, to be taxed

in the costs and collected as other costs

and as provided in R.C. §2701.09.

(B) The publisher of the daily law journal shall

receive the sum of Three Dollars ($3.00) for

each entry the daily law journal is required

by law to publish in the “abstract” and the

Clerk of Courts shall tax as costs the sum

of Three Dollars ($3.00) for each such entry

made.

Ohio Rev. Code §3105.06 unambiguously requires that the

publication in a divorce action where the residence of the defendant

is unknown and cannot be ascertained upon diligent search and

inquiry, shall be handled as provided by the Rules of Civil

Procedure. Under Rule 4.4(A) of the Ohio Rules of Civil Procedure:

When the residence of a defendant is unknown,

service shall be made by publication in

actions where such service is authorized by

law.

Finally, under Rule 7(A) of the Rules of the Court of Common

Pleas for Cuyahoga County:

No civil action or. proceeding shall be

accepted by the Clerk for filing unless the

party or parties offering the same for filing

shall have first deposited a sum to secure

the payment of the costs that may accrue in

such action or proceeding, except as otherwise

provided by law.

The cost of service by publication is $35.00. Under this

statutory scheme there is no mechanism for the waiver of

publication costs fepindigents in divorce actions or an

alternative mode of substitute service, such as service at a

defendant's last known address by mail and the posting of notice

at the courthouse for a set period.

STATEMENT OF CASE

Appellant Rose Harris has been denied the ability to divorce

her husband, Leon Harris, who abandoned her th January, 1969.

Since his departure Mrs. Harris has cared for their two dependent

children both of whom reside with her. An indigent, her sole

source of income is $263.00 in monthly AFDC benefits. For the

past two years Mrs. Harris has been attempting to surmount the

procedural obstacles which prevent her from securing a divorce.

Appellant Harris has been denied the right to dissolve her marital

relationship because the state has permitted her inability to

pay the service of process costs of publication to completely

bar her access to the divorce courts.

On April 20, 1979, appellant's counsel’went to the Office

of the Clerk of the Court of Common Pleas of Cuyahoga County and

was advised by the deputy clerk of the Court of Common Plesk,

that publication fees in divorce proceedings were mandatory and

that the clerk could neither waive the fees nor pay an indigent's

fees for publication.

Appellant subsequently filed an action under 42 U.S.C. §1983

in the United States District Court for the Northern District of

Ohio in which she sought to have Ohio Revised Code §3105.06, Ohio

Rules of Civil Procedure, Rule 4.4 and Cuyahoga County Court of

Common Pleas Rules 7 and 14, declared invalid and to enjoin enforce-

ment of the statute and rules as applied in a manner that denies

indigents the right to terminate marital relationships solely

because of their inability to pay publication costs, contrary

to Boddie v. Connecticut, 401 U.S. 371 (1971). This case was

dismissed by the district court on December 18, 1979 on the

ground of ripeness and on the ground of the availability of an

adequate state judicial remedy. (See attached order.)

On January 14, 1980 appellant's counsel, following the

district court's dismissal order, proceeded again to the office

of the Clerk of the Cuyahoga County Court of Common Pleas and

attempted to file a complaint for divorce, along with a supporting

affidavit of poverty. A deputy clerk instructed counsel that

since the whereabouts of the defendant were unknown plaintiff

was required to pay for publication costs in the Daily Legal

News before she could file her complaint. The publication fees

could not be waived despite appellant's showing of indigency.

Specifically, in accordance with Rules 7 and 14 of the Cuyahoga

Court of Common Pleas, the clerk refused to accept and file

appellant's complaint for divorce. In short, appellant attempted

to file her complaint and was not permitted to do so without

first advancing the required costs of publication as required

by Rules 7 and 14.

On July 22, 1980 appellant Harris filed an original complaint

for writ of mandamus in the Ohio Supreme Court. The complaint

challenged the constitutionality of Rules 7 and 14 as applied

to indigents and requested the court to compel the clerk of the

Court of Common Pleas for Cuyahoga County to accept and file a

complaint for divorce as required by the Court's decision in

Boddie v. Connecticut, 401 U.S. 371 (1971), and to provide a

mode of substitute service for indigents by either ordering the

county to pay for publication costs or by permitting service

at a defendant's last known address and posting of notice at

the courthouse for a set period.

On December 17, 1980, the Supreme Court of Ohio dismissed

Appellant Harris* complaint for mandamus.

This appeal follows.

RAISING THE FEDERAL QUESTION

Appellant expressly raised the claim that the Ohio statutory

scheme that requires payment of publication costs violates the

Due Process Clause of the fourteenth amendment as applied to

indigents in divorce proceedings in the original complaint for

writ of mandamus filed with the Supreme Court of Ohio.

The judgment of the Supreme Court of Ohio purports to rest

on an adequate and independent state ground. However, in dismissing

appellant's complaint for mandamus the court based its decision on

a misconstruction of the facts alleged in the complaint. Appellant

alleged that the appellee, pursuant to Local Rules 7 and 14 of

the Cuyahoga County Court of Common Pleas, refused to accept the

complaint for divorce unless appellant first advanced publication

costs. In denying appellant relief, the court, noted that “{iln

fact she [appellant] was jiven the right to file her complaint

without paying the fee," and “after filing her complaint .. . she

merely had to request a waiver from the proper [divorce] court

. « « « 413 N.E. 2d at 828. (Emphasis added) This curious

holding disregards the factual allegations, and thus rests on an

ontenanie state ground since appellant could hardly request waiver

“from tpe proper court" after the complaint was filed since

appellant alleged that the clerk refused to accept the complaint

for filing unless the costs for publication were tendered in advance."

This Court has jurisdiction to review the federal question

as it was fairly presented below and as denial rests upon an

inadequate and untenable state ground. The Court has always

recognized a duty to determine whether the state court's reliance

on a non-federal ground adequately and independently supports

the judgment, NAACP v. Alabama, 357 U.S. 449 (1958) and to

— - = —_ ow

lit is of course the “accepted rule” regarding standards for

dismissal that a court must accept the alleged facts as

true. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

review a state court's judgment by an independent examination

of the facts when necessary to decide whether a person has been

deprived by a state court of a right secured by the Constitution.

Norris v. Alabama, 294 U.S. 587, 590 (1935); Craig v. Harvey,

331 U.S. 367, 373-374 (1947); and Napue v. Illinois, 360 U.S.

264, 271-272 (1959).

Finally, in dismissing appellant's complaint for an original

writ of mandamus, the lower court expressed some reservation

concerning the application of this Court's holding in Boddie.

Relator [appellant] bases her claim for

relief on Boddie v. Connecticut, 401 U.S.

371 (1971). Although Boddie may mandate

that relator should be able to seek a

divorce without the necessity of paying

publication fees, relator must fail in

this action since she has improperly

chosen the use of an extraordinary remedy

to pursue her requested relief. (Emphasis

added)

413 N.E. 2d at 827.

As this Court has previously noted, “the fact the (state) court

found it necessary to attempt to distinguish (another Supreme

Court decision) reveals the federal basis." Oregon v. Hass,

420 U.S. 714, 719-720 (1971).

With regard to the lower court's holding that appellant,has

chosen to “improperly” pursue mandamus relief, it should be

noted that an ecidinal ‘enuplaint for writ of inipaadiaiais which

raises federal constitutional claims in the Supreme Court of

Ohio is a proper remedy. State ex rel. Heller vy. Miller, 61

Ohio St. 24 6, 399 N.E. 2d 66 (1980).

THE FEDERAL QUESTION IS SUBSTANTIAL

The right to access to the divorce courts has been recognized

as fundamental by this Court in Boddie v. Connecticut, 401 U.S.

371 (1971). The Court recognized in that case that the indigency

of a plaintiff may not bar his or her access to state court for

the purpose of obtaining a divorce:

Our conclusion is that, given 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, due process does prohibit

a State from denyin solely because of

inability to pa access to its courts to

individuals who seek judicial dissolution

of their marriages. (emphasis added)

Id. at 374.

The fundamental doctrine set forth in Boddie is that the

ja EN

fourteenth amendment to the United States Constitution forbids

a state from “requiring payment of court fees and expenses as

a condition precedent to obtaining court relief... Id.

at 373. Fees and expenses for service of process by newspaper

publication are encompassed by the doctrine. 2

[W]e think that reliable alternatives exist to

service of process by a state-paid sheriff if

the State is unwilling to assume the cost of

official service. This is perforce true of

service by publication which is the method

of notice least calculated to bring to a

potential defendant's attention the pending

of judicial proceedings... We think in

this case service at the defendant's last known

2ror decisions holding that fees and expenses of publication

costs are covered by Boddie: see, Ashley v. Superior Court,

509 P.2d 751 (Wash. 1973); Brown v. Brown, 296 A.2d 898

(N.H. 1972); Grissom v. Dade County, 293 So. 2d 59 (Fla.

1974); Taylor v. Clymer, 503 S.W. 2d 53 (Mo. App. 1973);

King v. Rn 316 N.E. 2d 555 (111. App. 1974); Johnson v.

’

Stevens, 2 S.E. 2d 764 (W.Va. 1980).

10

a

address by mail and posted notice is equally

effective as publication in a newspaper

(citations omitted).

Id. at 382.

In the aftermath of this Court's decision in Boddie, several

state courts have either required the costs of service by

publication to be paid by the county or permitted posting of

notice as an alternative method of substitute service. In

Hart v. The Superior Court, 492 P. 2d 433 \Ariz. App. 1971),

the court ordered the divorce court to authorize the cost of

publication because the defendant's whereabouts were unknown

and under the Arizona Ruies of Civil Procedure, said service

was mandatory. The court stated:

We are obliged to afford the petitioner com-

plete access to the legal relief required in

Boddie.

Id. at 435.

Regarding who should pay the costs of service by publication

for indigent persons, the court of appeals in Deason v. Deason,

32 N.Y. 2d 93, 296 N.E. 2d 299 (1973) held:

Boddie did not, of course, decide whether

State or local government should bear

publication costs. However, whether

viewed as an appropriate charge of

litigation expenses on the indigent,

the burden seems applicable, in the

absence of legislation, to the local

government.

Id. at 95.

The courts in Hart, and Deason, had no difficulty applying

Boddie to publication costs. In those cases the courts ordered

payment of newspaper publication fees to clear the way for the

divorce actions.

While it is clear from Boddie that due process prohibits

denial of access solely because of one's inability to pay state

imposed fees, the particular means which the states must use

ll

a

in affording indigents access is not mandated. One common

alternative to payment by state or county governments is expressly

suggested by this Court:

We think in this case service at the

defendant's last known address by mail and

posted notice is equally effective as publi-

cation in a newspaper (citations omitted).

401 U.S. at 382.

A number of courts have authorized this alternative to

newspaper publication, or have declared their local court rules

requiring newspaper publication unconstitutional where

the state required payment from an indigent divorce plaintiff.

Several post Boddie cases have followed the suggested path of

ordering states to provide indigents access to the courts by

mandating an alternative method of constructive service of

process other than by publication.

In Dungan v. Dungan, 579 S.W. 2d 183 (Tenn. 1979), indigent

plaintiff requested a waiver of the service by publication

fees where such service was mandatory under local civil rules.

The court ordered an alternative method of constructive service

of process other than publication.

We are of the opinion that of the two options

open to the Courts as a result of the Boddie

mandate, constructive service of process by

registered mail and posting ;of,/Notices is

the appropriate course for Tennessee . . . We

have an affirmative duty under both the United

States Constitution and the Constitution of

Tennessee to open the Courts to bona fide

indigents seeking, in yood faith, the judicial

dissolution of their marriages.

* * oF *

[U)pon Motion, supported by Affidavit, trial

judges may, in the exercise of sound discre-

tion, order in lieu of publication, that the

clerk mail a copy of the complaint and summons

by return receipt ‘registered mail to Defendant's

last known address and post a copy of the

summons at three public places in the county. .. .

y

Id. at 185.

12

ial

Similarly, in Thompson v. Thompson, 286 N.E.. 2a 657 (Ind. 1972)

the Supreme Court of Indiana, held:

We also perceive that there are alternatives

open to trial courts when faced with the

practical problem of providing publication of

a summons for indigent persons. For instance,

a trial court has authority ... , to provide

alternative forms of constructive notice so

long as they meet the requirements of due

process.

Id. at 663.

Several other lower courts have ordered alternative means

of service other than service by publication in Boddie type

cases. See, e.g., Cohen v. Board of Superyisors, 97 Cal. Rptr.

550 (Cal. App. 1971) (posting and service at last known address).

Full implementation of the Boddie doctrine prohibiting » we

a State from denying, solely because of inability to pay, access

to its courts to individuals who seek judicial dissolution of

their marriages," 410 U.S. at 374, is impossible given Ohio's

statutory and rule requirements for constructive service where,

as here, the residence of the defendant is unknown.

13

CONCLUSION

For the foregoing reasons, this Court should note probable

jurisdiction of this appeal and summarily reverse the judgment

of the Supreme Court of Ohio on the authority of Boddie v.

Connecticut, 401 U.S. 371 (1971).

Respectfully submitted,

LS $ AR

ROBERT S. CATZ

NANCY LEE FIRAK

JUDITH ZIMMER

College of Law

Cleveland State University

Cleveland, Ohio 44115

(216) 687-2525

COUNSEL FOR APPELLANT

March 2, 1981

14

ee, °° APPENDIX

THE STATE, EX REL. HARRIS, v. FUERST, CLERK OF CourRT.

[Cite as State, ex rel. Harris, v. Fuerst (1980),

64 Ohio St. 2d 130.]

Mandamus—Cause dismissed, when—Divorce complaint—

Refusal of indigent to pay publication fees—Adequate

remedy available.

(No. 80-1014—Decided December 17, 1980.)

IN MANDAMUS.

On prongs Sa 1980, counsel for relator, Rose Harris,

went to the o of Gerald E. Fuerst, Clerk of the Court of

Common Pleas of Cuyahoga County, respondent herein, with

the intention of filing a complaint in divorce. Pursuant to R. C.

2701.09 and Rules 7 and 14 of the Court of Common Pleas of

Cuyahoga County, fees are to be paid in conjunction with the

necessary publication in the local daily law journals concerning

relator’s divorce complaint. Neither relator, an indigent, nor -

her attorneys, would tender the Fay geome of those fees.

Further, relator neither applied for nor received, a judicial

waiver, available to all, of the fees based on her indigency.

She filed an action in United States District Court for the

Northern District of Ohio (Rose Harris v. James A. Rhodes, et

al., case No. C79-1082), seeking declaratory and injunctive

relief which, inter alia, would declare unconstitutional the re-

p oes of paying the » sayy publication fees when the

ivorce complaint is filed by an indigent person. That action

was dismissed by the federal court and an appeal is presently

pending in United States Sixth Circuit Court of A

Relator also filed this original action in us re-

questing that a writ issue directing respondent to accept

revue complaint without the payment of the publication

ees.

The cause is now before this court upon relator’s motion

for summary judgment, and upon respondent’s motion to

dismiss the complaint.

Per Curiam. In order to be entitled to a writ of man-

damus, relator must establish (1) that she has a clear legal

right to the relief prayed for, (2) that the respondent is u

a clear legal duty to perform the requested act, and (3) that

relator does not have a plain and adequate remedy in the or-

dinary course of the law. State, ex rel. Harris, v.

(1978), 54 Ohio St. 2d 41.

Relator bases her claim for relief on Boddie v. Connecticut

(1971), 401 U.S. 371. Although Boddie may mandate that

relator should be able to seek a divorce without the necessity

of paying the publication fees, relator must fail in this action

since she has improperly chosen the use of an extraordinary

writ to pursue her requested relief.

Relator’s action in federal District Court was dismissed

because relator, according to the decision in that case,

“**® was not injured as a result of any Ohio statute or rule, in

fact she was given the right to file her complaint without pay-

ing a fee. After filing her complaint, °° * [relator] merely had to

oy a waiver from the proper court.” Similarly, this action

il be dismissed since there is an adequate remedy at law

available to relator.

This court cannot and will not condone relator’s unwar-

ranted use of an extraordinary remedy by lending its im-

. to this cause when there was not only an adequate,

t also an expedient, remedy available to relator.

For the foregoing reasons, respondent's motion for

dismissal is sustained and the cause is dismissed.

Cause dismissed.

CeLesrezze, C. J., W. Brown, P. Brown, SWEENEY,

Locuer, HoLmes and Down, JJ., concur.

la

IN THE SUPREME COURT OF OHIO

THE STATE OF OHIO, EX REL.

ROSE HARRIS,

Relator,

-vs- NO. 80-1014

GERALD E. FUERST,

Respondent.

it NOTICE OF APPEAL

Comes now Rose Harris and hereby gives notice that she

hereby appeals to the Supreme Court of the United States from

SS

|the final judgment entered in this action on the 17th day of

December, 1980. This appeal is taken pursuant to 28 U.S.C.

{§1257(2).

|

} Respectfully submitted,

Gite:

{

DATED: January 14, 1981 ROBERT S. CATZ

The Legal Clinic ;

Cleveland State University |

College of Law

He eae Cleveland, Ohio 44115

(216) 687-2525

$ Pf fo COUNSEL FOR RELATOR

—-

P.0435-8

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROSE HARRIS, et al., : C79-1082

Plaintiff :

-Vvs- : ORDER

JAMES A. RHODES, et al.,

Defendants

Battisti C.J.

service by publication. Section 3105.06 reads:

Rule 4.4 reads in part:

be made by publication in actions where such service is

by law.

either Section 3105.06 nor Rule 4.4 provide for substituted service of process. _

this case, service by publication is a pre-requisite to @ divorce when the

esidence of the defendant is unknown and cannot be ascertained.

Plaintiff is an indigent with two children. Her only source of

come is $235.00 per month which she receives from “Aid to Families with

ependent Children." Plaintiff has been separated from her

pproximately ten years and now seeks to obtain a divorce from him, She does

ot know where her husband resides, and has been unable to ascertain his

sidence. Plaintiff could not afford to pay the $35.00 fee

domplaint for divorce.

3a

Plaintiff has brought this action to declare invalid and enjoin the

frsrcnen of Section 3105.06 of the Ohio Revised Code and Rule 4.4 of the

Dhio Rules of Civil Procedure as applied in a manner which denies indigent

Dlaintiffs from securing a divorce because of their inability to pay the costs of

If the residence of a defendant is an action for divorce, annulment,

or alimony is unknown, notice of the pendency of the action must be

given by publication as provided by the rules of civil procedure.

When the residence of the defendant is unknown, service shall

tuyahoga County for service by publication and, therefore, declined to file her

Filed 12/18/79

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authorized

husband for

required in

ort-at—e 6-76-1808 anes

This action raises no justiciable case or controversy as plaintiff has

uffered no injury. Plaintiff has equated her case with that of Boddie v.

onnecticut, 401 U.S. 371 (1971), however Boddie can be distinguished. In

Boddie plaintiff was required to pay an initial filing fee plus a service of

brocess fee. Plaintiff, an indigent, filed an action before the Connecticut

| ourts seeking a waiver of the fees, but her request for the waiver was denied.

the instant case, plaintiff neither filed her complaint nor did she seek a

Waiver before any Ohio court. Section 2323.31 of the Ohio Revised Code

provides for an indigent to file a complaint without paying a filing fee.

: erefore, plaintiff was entitled to file her complaint, yet she neglected to do

I, claiming she could not afford the service of process fee.

Plaintiff would have been entitled to obtain a waiver in court if she

| ad filed her complaint. The case of Monroe v. Monroe, 33 O.Misc. 23, 294 N.E.

Pd 250 (C.P. Hamilton County 1972), provides for an adequate remedy at state

| w. Monroe was a divorce action where plaintiff moved for the waiver of a

629.95 service by publication fee. Plaintiff's sole source of income was from

Aid to Families with Dependent Children. The court held that the fees would

he waived after she presented an affidavit evidencing her inability to pay. In

he instant case, plaintiff never attempted to obtain a waiver of her fee in any

Dhio court.

5 Plaintiff's failure to file her complaint coupled with the fact that an

4 dequate remedy was available in the state gourts leads this court to conclude

hat there is no justiciable case or controversy. Plaintiff has failed to properly

ur tiate her divorce action. Because her action was never initiated, she could

7 ot have been denied her right te obtain a divorce. Plaintiff was not injured as

result of any Ohio statute or rule, in fect she was given the right to file her

omplaint without paying a fee. After filing her complaint, plaintiff merely

d@ to request a waiver from the proper-court. This court cannot render

in

4a

4

* } P-043-8 me See $9100.78 1800 e808

*]

dvisory opinions. Plaintiff must demonstrate that she suffered an injury and

such injury is evident. This case is hereby dismissed.

IT IS SO ORDERED.

Frank J. Battisti

Chief Judge

Sa

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