# Reply Brief — M. L. B. v. S. L. J. (No. 95-853) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0670%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1996 ## Text nm ~ Ourt, U. (>) : a Ss eae a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0670%3A4. Public record. Not legal advice.