Reply Brief — M. L. B. v. S. L. J. (No. 95-853)

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No. 95-853 | FEB 28 1996

) » CLERK

In The

Supreme Court of the United States

October Term, 1995

+

M.L.B.,

Petitioner,

Vs.

S.L.J., INDIVIDUALLY, AND AS NEXT FRIEND

OF THE MINOR CHILDREN, S.L.J. AND M.LJ.,

AND HIS WIFE, J.PJ.,

Respondents.

.

On Petition For Writ Of Certiorari

To The Supreme Court Of Mississippi

+

PETITIONER’S REPLY MEMORANDUM

.

*Rosert B. McDurr

771 North Congress Street

Jackson, Mississippi 39202

(601) 969-0802

Danny LAMPLEY

ACLU/M Cooperating Attorney

Post Office Box 7245

Tupelo, Mississippi 38802

(601) 840-4006

Marina HsietH

Boalt Hall School of Law

University of California

Berkeley, California 94720

(510) 642-4474

Counsel for Petitioner

*Counsel of Record

Ni

TABLE OF CONTENTS ......

TABLE OF AUTHORITIES ....

THE IMPORTANCE OF THE FEDERAL

CONSTITUTIONAL ISSUE ...

THE CONFLICT AMONG THE COURTS

CONCLUS ION . . id . ° . .

ii

TABLE OF AUTHORITIES

Cases

Boddie v. Connecticut, 401 U.S.

371 (1971) 7 . >. >. . om . .

Carson v. Natchez Children’s

Home, 580 So.2d 1248 (Miss.

1991) o o > > 7. >. — >. >. ° >.

De La Oliva v. Lowndes County

Dept. of Public Welfare, 423

So.2d 1328 (Miss. 1982) ..

Doe V. Attorney W., 410 So.2d

1312 (Miss. 1982) .....

G.M.R., Sr. Ve H.E.S., 489 So.

2d 498 (Miss. 1986) ....

Griffin v. Illinois, 351 U.S.

12 (1956) . >. >. . _ >. > >. >

In Re Adoption of a Female

Child,412 So.2d 1175

(Miss. 1982) . . . . . . .

In Re Marriage of Valleroy,

548 U.S. 857 (Mo., 1977) °

Lassiter v. Department of

Social Services, 452 U.S.

18 (1991) > >. . >. > > > . >.

Lecates v. Justice of the

Peace Court No. 4, 637

F.2d 898 (3rd Cir. 1980) °

Lindsey v. Normet, 405 U.S.

56 (1972) . . . . . . . 7 .

iii

Mayer v. Chicago, 404 U.S.

189 (1971) im @ 6 6 e «

Natural Mother v. Paternal]

Aunt, 583 So.2d 614 (Miss.

1991) >. — al > oo > = — = = =

Nickens v. Melton, 38 U.S.

BGS (Sth Cis. 1996) ....

Ortwein v. Schwab, 410 U.S.

656 (1973) a 6 6 © @ «

Petit v. Holifield, 44?

So.2d 874 (Miss 1°84) ...

Rich v. Lang, 604 P.2d. 1248

(Okla. 1979) ie ee.) S » «

Vance v. Lincoln County Dept.

of Public Welfare, 582 So.2d

414 (Miss. 1991) eeeee

Statutes & Rules

Miss. Code §§ 93-15-103 ....

Rule 10(b), U.S. Supreme Court

Rules 16 - 17, Miss. Rules of

App. Procedure -~ a oe

PETITIONER'S REPLY MEMORANDUM

Nowhere does the Respondent's brief address the

Petitioner's claim that certiorari should be granted because

this case implicates a fundamental right — specifically, the

right of a parent in her relationship with her child. Instead,

the Respondent bases its contention that certiorari should be

refused upon case law which, for the most part, deals with the

denial of in forma pauperis appeals in situations where no

fundamental rights are at stake.

of the federal constitutional issue involved in this case, and

THE IMPORTANCE OF THE

FEDERAL CONSTITUTIONAL ISSUE

As noted in the Petition, the issue raised in this case is

an important one that has yet to be decided by this Court, and

the decision of the Mississippi Supreme Court conflicts with

the reasoning of this Court's holdings in Griffin v. Illinois,

351 U.S. 12 (1956), and Boddie v. Connecticut, 401 U.S. 371

(1971). The Respondent claims, however, that the Mississippi

Supreme Court's decision “is in conformity with this Court's

decision Ortwein v. Schwab, 410 U.S. 656 (1973),”

Respondent's Brief at 2, and that Ortwein specifically stated

that Boddie “was not concerned with post-hearing review.”

Id., quoting 410 U.S. at 659. While it is true that Boddie

involved a trial court proceeding and Ortwein an appeal, this

Court specifically based its decision in Ortwein on the fact

that the interest in that case - seeking increased welfare

payments -- had what this Court called “far less constitutional

significance than the interest of the Boddie appellants.”

Ortwein, 410 U.S. at 659. Boddie dealt with the dissolution

of a marriage, which is of a similar magnitude, in terms of

constitutional significance, as the dissolution of parental rights

2

that occurred in the present case. This distinguishes both

Boddie and the present case from Ortwein. Moreover, the fee

required in Ortwein was only twenty-five dollars, while the

Mississippi Supreme Court in the present case required the

advance payment of over two thousand dollars. None of

these crucial points are addressed by the Respondent.

As for Griffin, the Respondent contends that Griffin and

its progeny “are not relevant since they deal only with

criminal cases.” Resp. Br. at 3. This fails to recognize that

this Court specifically has discussed Griffin in the context of

civil cases, stating in Boddie that “the rationale of Griffin

covers this case.” 401 U.S. at 382. See also, Lindsey v.

Normet, 405 U.S. 56, 77 (1972) (citing Griffin in the course

of striking down a _ procedural requirement that

unconstitutionally burdened the availablity of appeals for

some civil litigants). Indeed, the present case falls within the

intersection of the principles in Griffin, which involved an

appeal in a criminal case, and those in Boddie, which

involved a trial court proceeding relating to a fundamental

right in a civil case, and that is one of the reasons this Court

should grant certiorari to review this case.

Also, with respect to Griffin and its progeny, nowhere

does the Respondent address the very important point that, for

many parents, the termination of parental rights by a state

court is a much more grievous harm that what could be

imposed by a state court in a misdemeanor criminal case, see,

Mayer v. Chicago, 404 U.S. 189 (1971) (indigent defendant

has a right to provision of a transcript for appeal in a case

where he was faced with a $500 fine, and no imprisonment,

for two misdemeanor offenses), or even in a felony case.

In this connection, the Respondent states that there were

no allegations in the present case upon which criminal

charges could be lodged against the Petitioner. Accordingly,

says the Respondent:

[T}he statement by the Court in Lassiter v. Department

of Social Services, 452 U.S. 18 (1991), that appointed

counsel may be required in a termination of parental

rights case if there are allegations upon which criminal

charges could be based is not applicable to this case.

Resp. Br. at 4. Of course, Lassiter held that a number of

factors should be considered in determining whether

appointment of counsel is constitutionally required in any

given parental termination case, and only one of them --

mentioned in passing by the Court -- is whether the case

included allegations of criminal activity. 452 U.S. at 27 n.3,

31. But even in Lassiter, in which the parental termination

proceeding also involved no allegations of criminal conduct

toward the child, id. at 32, the Court held that the

Constitution requires at least an individual evaluation of

whether the appointment of counsel was required in that

particular case. The Mississippi Supreme Court's practice,

refusing across-the-board to permit in forma pauperis civil

appeals, does not allow even that much, although this Court's

decisions establish that the right of access to existing

appellate avenues is much broader than the right to counsel.

See, Petition for Certiorari at 16, and the cases cited therein.

The Respondent attempts to denigrate the importance of

the present case by contending that even if the Petitioner were

constitutionally entitled to appeal despite her indigency, it is

unlikely she would prevail on any such appeal to the

Mississippi Supreme Court. Resp. Br. at 6-7 and n. 6. Of

course, that is beside the point. The question here is whether

the Petitioner has the constitutional right to appeal the

termination of her parental rights just as a wealthier person

can, even though the Petitioner cannot pay over $2,000 in

advance of the appeal.

7 and n. 6, the Mississippi Supreme Court has said it will

hesitate to reverse a termination of parental rights if the

evidentiary standard has not been met. Pet. Cert. at 13-14.

Indeed, from 1980 to the present, there are sixteen

reported Mississippi Supreme Court cases citing the

termination statute, Miss. Code § 93-15-103. (Only about a

year ago did Mississippi begin utilizing an intermediate Court

of Appeals, but appeals still lie to the Supreme Court, which

determines whether to keep the cases or send them to the

Court of Appeals. See Rules 16-17, Miss. Rules of App.

meet the evi standard, Petit v. Holifield, 443 So.2d

874 (Miss. 1984); De La Oliva vy. Lowndes County Dept. of

Public Welfare, 423 So.2d 1328 (Miss. 1982); In Re Adoption

of a Female Child, 412 So.2d 1175 (Miss. 1982), while five

were affirmed. Natural Mother v. Paternal Aunt, 583 So.2d

614 (Miss. 1991); Vance v. Lincoln County Dept. of Public

Welfare, 582 So.2d 414 (Miss. 1991); Carson vy. Natchez

Children's Home, 580 So.2d 1248 (Miss. 1991); G.M.R., Sr.

v. H.E.S., 489 So.2d 498 (Miss. 1986); Doe v. Attorney W.,

410 So.2d 1312 (Miss. 1982).

5

Thus, any suggestion that appellate review is unimportant

or unavailing in these cases is simply wrong. Given the

availability of appellate review to parents who are not

indigent and the fundamental nature of the interest at stake,

the present case raises a very important issue of constitutional

law.

THE CONFLICT AMONG THE COURTS

The Respondent does not dispute the fact that the

decisions of at least five state supreme courts are at odds with

the holding of the Mississippi Supreme Court in the present

case, see Pet. Cert. at 20-21. Instead, the Respondent

contends that these other decisions “are aberrations based on

the predeliction of the individual justices rather than well

reasoned opinions.” Resp. Br. at 5, n. 5. That is a rather

reckless and unsupportable statement. But more importantly,

whether those other cases are the result of individual

“predelictions” or serious constitutional analysis, they create

a conflict that is appropriate for this Court's review and

resolution on certiorari. See Rule 10(b) of the Rules of this

costs for her to appeal the details of the terms of the

dissolution, this came in a context where she nevertheless

6

could afford to appeal inasmuch as she did appeal, and

inasmuch as the appellate court reviewed her claim on the

merits. In the other case, Rich v. Lang, 604 P.2d 1248 (Okla.

1979), the indigent parent was permitted to appeal, in forma

pauperis and on the merits, the denial of his termination of

parental rights without paying the cost deposit, even though

the Court held that a transcript was unnecessary and that he

was not entitled to a transcript in the context of that case.

That is a far cry from the present case, where the Mississippi

Supreme Court will not even consider the possibility of an in

forma pauperis appeal and will not consider waiving the cost

deposit -- irrespective of any questions about the necessity of

a transcript.

As for the federal courts of appeals cases cited by the

Respondent, Resp. Br. at 2, 4, none of them involved

fundamental rights of the type at issue here. See, e.g.,

Nickens v. Melton, 38 F.3d 183, 185 n. 5 (Sth Cir. 1994) (“we

note that the interest here at stake . . . is not as fundamental

as, for example, marriage or liberty”). With respect to

Lecates v. Justice of the Peace Court No. 4, 637 F.2d 898

(3rd Cir. 1980), the Respondent is correct that it hinged in

part on the right to obtain a jury trial with a law-trained judge

as part of the appeal de novo from a Justice of the Peace

court to a court of record. Resp. Br. at 4-5. In that sense, it

is different from the present case. But Lecates is relevant,

and in conflict with the present case, inasmuch as it suggests

that if a state creates court procedures that are available to

litigants dissatisfied with the initial court proceeding in a civil

case, access to the subsequent proceedings may not hinge on

a litigant’s wealth without violating the federal constitution.

637 F.2d at 909.

)

CONCLUSION

For the foregoing reasons, as well as those set out in the

Petition, the writ of certiorari should be granted.

Respectfully Submitted,

ROBERT B. McDUFF*

771 North Congress Street

Jackson, Mississippi 39202

(601) 969-0802

DANNY LAMPLEY

ACLU/M Cooperating Attorney

Post Office Box 7245

Tupelo, Mississippi 38802

(601) 840-4006

MARINA HSIEH

Boalt Hall School of Law

University of California

Berkeley, California

(510) 642-4474

Counsel for Petitioner

* Counsel of Record