A Court Averse to Meddling Ponders a Mother’s Loss

Here are the facts: Melissa Brooks was divorced in 1992. Her ex-husband soon remarried and gained custody of the children. In 1994, a county judge in Mississippi allowed the stepmother to adopt the two children and terminated Brooks’ rights as their mother. That meant she could no longer even visit her children.

When Brooks, a $2.13-an-hour waitress, tried to appeal, the Mississippi Supreme Court told her that she would have to pay $2,352 in advance for a transcript and court costs. Because she was too poor to pay, she couldn’t appeal.

A young Mississippi civil rights lawyer, Rob McDuff, took on her case free and challenged the denial of the appeal. The case came before the U.S. Supreme Court on Monday, the opening day of the fall term, for oral arguments.

It may look like a gross injustice that the Supreme Court surely must reverse.

But not this Supreme Court. Half a dozen public-interest lawyers, gathering the Sunday before McDuff’s court date to help him prepare his argument, knew better.

Seven of the nine justices were appointed by conservative Republican presidents. They are reluctant to tell the states how to run their affairs and are loath to force the taxpayers to pay for extra litigation.

These days, the court shows little sympathy for the poor. Moreover, the Constitution never has been interpreted to give anyone a right to appeal in civil cases, let alone a right to have the state pay for it.

For all these reasons, the case of M.L.B. vs. Mississippi shines a revealing light on the current Supreme Court, which found itself struggling to reconcile a mother’s compelling plight and an ideological aversion to federal meddling in state affairs. More than that, it tells how a team of astute lawyers crafted a compelling argument that stood a chance of winning.

“In the late ‘60s, this would have been a great case to argue because the court was on the side of those who were left out,” McDuff said. “It’s a whole different court now, and you have to think about the case the way they will think about it.”

*

McDuff, a native of Hattiesburg, Miss., graduated from Harvard Law School in 1980, worked on civil rights law in Washington for several years and then returned to Jackson, the state capital, to open his own law firm. He handles voting-rights cases and some criminal appeals.

He heard about Brooks’ case from a Legal Aid attorney who helped her during a three-day hearing before a Benton County judge. Her ex-husband, Sammy James, had introduced evidence that Brooks was living with an ex-felon who was often drunk and violent.

That part is true, she says. “He was violent and mean sometimes, but not around my kids,” she said in an interview. “That’s why I got away from him.”

The judge, considering the “stability of the environment . . . and the moral fitness of the parents and the home,” decided that it was in the best interests of the children, Samuel Lee, now 11, and Melissa Leann, 9, to be adopted by their father’s new wife.

Then he went one step further. Although he did not judge Brooks to be an unfit mother, he nonetheless declared that her parental rights “are hereby forever terminated.”

This meant her ex-husband could prevent Brooks from seeing her children. Under the law, she was no longer their mother.

In about half the states, including California, an impoverished person can appeal all civil judgments because the appellate courts routinely waive the costs. Several other states waive the costs in parental-rights cases.

Mississippi is one of a handful that does neither. Brooks paid a $100 filing fee to appeal to the state Supreme Court, but she was told she would have to submit the complete trial transcript and other papers in advance. The court clerk in Benton County said the transcript, at $2 per page, would cost her $1,900. The other required documents would bring the total to $2,352.36.

Last year, the state Supreme Court said a claim of poverty did not entitle anyone to a free appeal. In a brief order, it dismissed her appeal.

McDuff then petitioned the U.S. Supreme Court, arguing that it was a violation of the Constitution’s guarantee of “due process of law” and “equal protection of the laws” to deny a parent’s right to appeal to keep her children simply because she was too poor to pay the court costs. He did not suggest that the state must provide her with a lawyer, only that she had to be allowed to present her appeal.

To his surprise, the high court agreed to hear the case and set it for argument on the afternoon of Monday, Oct. 7.

The American Civil Liberties Union agreed to pay the costs of printing the briefs and of McDuff’s trip to Washington. The group also paid for Brooks to see her own case argued in the high court.

“We’ve always maintained that a true system of justice has to be open to everyone, rich and poor,” said Steven R. Shapiro, the ACLU’s legal director. “What leaps out at you in this case is a mother losing her kids because she is poor.”

*

But several veteran public-interest lawyers urged McDuff not to dwell on the poor-versus-rich theme. Instead, they advised him to keep the case narrowly focused on the notion of motherhood. The justices, they said, would not be willing to open the door to all civil litigants and require states to pay for their appeals.

“Don’t talk too much about rich people and poor people,” a former court clerk advised. The justices “are rich themselves, and they don’t want to hear that.”

To help McDuff refine his argument, the public-interest lawyers gathered early on that Sunday morning before the court appearance, using the old townhouse occupied by Ralph Nader’s law firm for a moot court session.

McDuff began his prepared opening remarks. This case, he said, involves “one of the most fundamental rights that can ever be adjudicated in a court of law”--whether a 28-year-old mother can be stripped of her right to ever see her two children again.

One of the lawyers playing the parts of the justices quickly interrupted.

Suppose Brooks were losing her house, he said. Isn’t that fundamental too? Must the state give her free appeal in that case too?

The questions followed rapidly. What if it were a bankruptcy case? Or her welfare payments were about to be cut off?

*

Counsel, why are you arguing just for a transcript? Does the state have to give her a free lawyer?

What if the costs were $500, not $2,300? Would that amount be unconstitutional too?

Or suppose she needs psychiatric counseling to continue as a mother. Does the state also have to pay for that?

This case, McDuff repeated, is different from all those situations. It’s not an ordinary civil suit. It’s not a property dispute or contract claim. It’s not about money. It is not even about child custody.

“This is about whether a court can erase a mother from her child’s life.”

*

At exactly 1 p.m. on Monday, the gavel sounded and the black-robed justices emerged from behind the red velour curtain.

“Mr. McDuff, you may begin,” said Chief Justice William H. Rehnquist.

“My client is no longer the mother of her children in the eyes of the law because of an order of a chancery court judge in Benton County, Miss., an order that she believes is mistaken,” McDuff said. “Yet she cannot appeal from that order because she is too poor to pay the cost.”

Before he could say more, Rehnquist asked who should pay the costs of the transcript.

The court stenographers get a salary, “but they make their money on transcripts, don’t they?” he said.

McDuff replied either the state could pay or the stenographers could supply a transcript for free, because their salary is $33,000.

Rehnquist wondered whether the stenographers would want the job if they couldn’t earn the extra fees.

“Or they could just abolish the appeals, couldn’t they?” snapped Justice Antonin Scalia, probably the most conservative member of the court.

In reply, McDuff cited “cases such as Griffin” that speak of a fundamental right to appeal.

“That’s a criminal case,” Rehnquist corrected him. Under the court’s precedents, the Constitution gives criminal defendants who are poor a right to free appeals, but the same does not apply in civil cases.

Backpedaling, McDuff offered that if a state were going to allow appeals, it could not deny some of them based on an “arbitrary factor” such as poverty.

“Why is the payment of court costs an arbitrary factor?” Scalia interrupted again. “So much of what happens in the world depends on whether you can pay for it. I don’t see why that is arbitrary.”

*

McDuff was struggling, but Justice Sandra Day O’Connor intervened to change the subject. “How about a child custody case?” she asked. Are free appeals required there too?

No, McDuff replied, following the Sunday morning advice. A loss of custody is not as extreme as losing all parental rights.

O’Connor wondered whether it was possible to draw “a principled line” there. She appeared to be grappling with the same problem as McDuff. How could Brooks win without the court’s ruling that the states must subsidize all appeals in all kinds of civil cases?

Rehnquist asked about a mortgage foreclosure. “If my family is going to lose our house, we might consider that just as fundamental,” he said.

No, it’s different, McDuff dutifully replied.

As the argument moved on, the picture brightened for Brooks’ attorney. Justices David H. Souter and Anthony M. Kennedy struggled with the theory behind the case. Was this a “due process” violation, or was it more correctly an “equal protection” issue? Despite the question, both sounded as though they were trying to devise a theory that would justify ruling for McDuff.

*

The tenor of the argument changed entirely when Rickey T. Moore, the attorney representing Mississippi, rose and argued that Brooks was simply complaining about a “procedural problem,” not a fundamental right.

“The petitioners in this case are trying to create a vast new constitutional right and to federalize the whole area of parental-rights law,” he told the court.

That comment seemed to irk the court’s two female justices.

“You don’t concede a fundamental right is at issue here,” O’Connor said, glaring, “when you deprive a mother of the interest in her child?”

“This is about the permanent loss of a child,” added Justice Ruth Bader Ginsburg. “There is no civil case like this. It isn’t a money matter. You are declaring a woman is no longer the mother of her child.”

Lest anyone doubt that having two women on the bench changes the justices’ perspective, this case would seem to settle the matter.

For the rest of his time at the lectern, Moore struggled, unable to divert critical questions from O’Connor, Kennedy and Ginsburg. Only Scalia came to his defense.

When an hour was up, the gavel sounded and the courtroom cleared.

Outside on the court steps, Brooks was too shy and nervous to speak for the cameras.

“My stomach is tied in knots,” she said quietly.

“Rob did real good,” she said. “They listened to him. And the women, they really understood what this is about.” If she wins in the high court, Brooks said, she hoped she could at least convince a Mississippi court to give her the right to visit her children again.

Outside, McDuff felt confident enough to say what he was wary of saying inside. “This case is all about equal justice under law,” he said before the cameras, “whether we will have one system for the rich and another for the poor.”

The answer to that question, at least as it applies to Brooks’ case, may be several months away. The justices voted behind closed doors Friday and will issue a ruling once they have written an opinion.