Huffman v. Boersen/Concurrence Douglas

[p338] MR. JUSTICE DOUGLAS, concurring.

While I agree to either reversing the judgment below or vacating and remanding, I do so on somewhat different grounds.

This case is clearly controlled by Boddie v. Connecticut, 401 U.S. 371. It involves, not a divorce, but an annulment and a claim concerning the paternity and custody of a child. The principles announced in Boddie are therefore clearly applicable no matter how closely Boddie is confined.^[1]

[p339] What the Supreme Court of Nebraska may do about the statute that has recently been enacted is its business and not ours. The parties before us cannot by their agreement make that statute applicable. Only the Supreme Court of Nebraska can do so, and we cannot direct that court to reconsider this case in light of the supervening statute.^[2] The Supreme Court of Nebraska is sovereign in its own right in connection with local law matters. Boddie contains the guiding federal principle and that principle alone should control the disposition that we make of the case.^[3]

Notes

1. I share the view of Justice Black, however, that:

   "[T]he decision in Boddie v. Connecticut can safely rest on only one crucial foundation—that the civil courts of the United States and each of the States belong to the people of this country and that no person can be denied access to those courts, either for a trial or an appeal, because he cannot pay a fee, finance a bond, risk a penalty, or afford to hire an attorney..."

   "[T]he crucial foundation on which Boddie rests also forbids denial of an indigent's right of appeal in civil cases merely because he is too poor to pay appeal costs. Once the right to unhampered access to the judicial process has been established, that right is diluted unless the indigent litigant has an opportunity to assert and obtain review of the errors committed at trial." Meltzer v. LeCraw & Co., 402 U.S. 954, 955-956, 958 (opinion of Black, J.).

2. Some States do have procedures by which federal appellate courts may certify questions of law to the state supreme court. Florida is one. See Diffenderfer v. Central Baptist Church, 404 U.S. 412, 415 (DOUGLAS, J., dissenting). Nebraska has no such procedure.
3. It is possible that the Nebraska Supreme Court will have no opportunity, despite the remand, to rule on the applicability of the new statute to petitioner. Legislative Bill 1120 provides that "[a]n appeal may not be taken in forma pauperisif the trial court certifies in writing that it is not taken in good faith." In the federal system, "good faith" has "been defined as a requirement that an appeal present a nonfrivolous question for review." Cruz v. Hauck, 404 U.S. 59, 62 (DOUGLAS, J., concurring). Here, respondent urges strenuously that the annulment issue is indeed frivolous. While counsel is willing to stipulate that there is merit to the paternity issue, the effect of such a stipulation on the views of the trial judge, who is on record as believing petitioner's assertions to be "wholly without merit," App. 49, is highly speculative.

   Should petitioner's in forma pauperis appeal be disallowed because of the trial court's certification of the appeal as frivolous, I would hold that petitioner had been denied the equal protection of the laws. Cruz v. Hauck, supra.