757
Why Do the Poor Not Have a Constitutional Right to File
Civil Claims in Court Under Their First Amendment
Right to Petition the Government for a Redress of
Grievances?
Henry Rose*
CONTENTS
I. CONSTITUTIONAL PROTECTION OF THE RIGHT TO ACCESS COURTS 758
I. FILING FEES AND IN FORMA PAUPERIS PETITIONS ............................. 761
III. SUPREME COURT CASES INVOLVING ACCESS OF THE POOR
TO CIVIL COURTS .................................................................................. 762
A. Boddie v. Connecticut .................................................................. 762
B. United States v. Kras .................................................................... 763
C. Ortwein v. Schwab ....................................................................... 765
IV. UNITED STATES SUPREME COURT DECISIONS ON CIVIL COURT
FILING FEES AS THEY APPLY TO THE POOR AND THEIR CONSTITUTIONAL
RIGHT TO ACCESS THE COURTS ............................................................ 766
V. VOTING RIGHTS ANALOGY OF THE RIGHT TO ACCESS COURT BY
PERSONS WHO CANNOT AFFORD TO PAY FILING FEES ........................ 768
CONCLUSION ......................................................................................... 769
Since 1963, the United States Supreme Court has recognized a
constitutional right for American groups, organizations, and persons to
pursue civil litigation under the First Amendment right to petition the
government for redress of grievances.
1
However, in three cases involving
* Henry Rose is a Curt and Linda Rodin Professor of Law and Social Justice at Loyola University
Chicago School of Law. He dedicates this article to Arthur B. LaFrance, one of the attorneys for
plaintiffs in Boddie v. Connecticut. He is also grateful to Barry Sullivan and the editors and staff of
Seattle University Law Review for their helpful comments, suggested edits, and production assistance
in the publication of this article.
1
. Carol Rice Andrews, A Right of Access to Court Under the Petition Clause of the First
Amendment: Defining the Right, 60 OHIO STATE L.J. 557, 576–89 (1999) (surveying the development
of the constitutional right to access the courts under the First Amendment and proposing standards for
defining the right).
758 Seattle University Law Review [Vol. 44:757
poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie
v. Connecticut,
2
United States v. Kras,
3
and Ortwein v. Schwab
4
—the
Supreme Court rejected arguments that all persons have a constitutional
right to access courts to pursue their civil legal claims.
5
In the latter two
cases, Kras and Ortwein, the Supreme Court concluded that poor persons
were properly barred from accessing the courts when they were unable to
pay court filing fees. The shocking lesson of this triumvirate of Supreme
Court cases is that certain poor persons who cannot afford to pay court
filing fees can be denied access to the Judicial Branch of government to
seek resolution of their civil legal claims. But paying court filing fees, like
paying government-imposed fees to vote, should not be a precondition to
the exercise of a constitutional right. This Article asserts that these three
cases should have recognized that the poor—like all other groups,
organizations, and persons—have a First Amendment right to access the
courts to seek redress of their grievances, even when they cannot afford to
pay court filing fees.
First, Part I of this Article identifies the important role that the
Judicial Branch of government plays in the enforcement of the civil legal
rights of Americans and traces the development of the First Amendment
right to access the courts for this purpose. Part II summarizes typical civil
court filing fees and explains how available fee-waiver processes are
ineffective. Parts III and IV consider the triumvirate of Supreme Court
cases involving poor plaintiffs and asserts that the Court should have
considered their rights to access the courts under the First Amendment
right to petition the government for redress of grievances. Finally, Part V
analogizes to Supreme Court precedent involving the right to vote and
asserts that the imposition of fees for pursuing civil litigation, like fees for
voting, violates equal protection as an improper precondition to the
exercise of a constitutional right.
6
I. CONSTITUTIONAL PROTECTION OF THE RIGHT TO ACCESS COURTS
The Judicial Branch of government performs the essential role of
ensuring that all persons are able to enforce their legal rights, and the First
Amendment recognizes the right to access the courts as the principal
means by which the Judicial Branch performs this role.
2
. Boddie v. Connecticut, 401 U.S. 371, 382–83 (1971).
3
. United States v. Kras, 409 U.S. 434, 447 (1973).
4
. Ortwein v. Schwab, 410 U.S. 656, 659–60 (1973).
5
. Although the indigent persons in Boddie were allowed to proceed with their divorce actions
without paying court filing fees under the Due Process Clause of the Fourteenth Amendment of the
United States Constitution, the Court majority stated that it was not deciding that access to the courts
was a due process right available to all persons in all circumstances. Boddie, 401 U.S. at 382–83.
6
. See infra Part V.
2021] The Poor & Government Redress for Grievances 759
In Marbury v. Madison, Chief Justice Marshall stated: “The very
essence of civil liberty certainly consists in the right of every individual to
claim the protection of the laws, whenever he receives an injury. One of
the first duties of government is to afford that protection.”
7
Through civil
litigation, persons can seek enforcement of their legal rights against
entities and persons who violate them. They can also seek to invoke the
law-making authority of judges to define the common law.
8
Finally, they
can seek to enforce provisions of the Constitution against entities or
persons who transgress them.
9
It is imperative that all persons have access
to the Judicial Branch of government to enforce their rights under law.
The First Amendment to the Constitution of the United States of
America is the legal basis of the right to access the courts. It provides:
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.”
10
The initial Supreme Court case that interpreted the First Amendment
to protect the right to file civil litigation is NAACP v. Button.
11
In this case, the National Association for the Advancement of Colored
People (NAACP) challenged on First and Fourteenth Amendment grounds
the Attorney General of Virginia’s enforcement of a state statute that
prohibited the solicitation of legal business.
12
The Virginia Conference of
the NAACP had actively encouraged Black citizens of Virginia to obtain
representation from NAACP lawyers to challenge the racial segregation
of public schools in Virginia.
13
The Court held that the NAACP’s
activities were modes of expression and association protected by the First
and Fourteenth Amendments that could not be prohibited under
Virginia’s power to regulate the legal profession.
14
The Court stated
that “under the conditions of modern government, litigation may well be
the sole practicable avenue open to a minority to petition for
redress of grievances.”
15
7
. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
8
. A First Amendment Right of Access to the Courts for Indigents, 82 YALE L.J. 1055, 1060
(1973).
9
. Id. at 1059–60.
10
. U.S. CONST. amend. I.
11
. NAACP v. Button, 371 U.S. 415, 428–31 (1963).
12
. Id. at 417–19, 428–29.
13
. Id. at 420–22.
14
. Id. at 428–29.
15
. Id. at 430.
760 Seattle University Law Review [Vol. 44:757
In Brotherhood of Railroad Trainmen v. Virginia,
16
United Mine
Workers of America, District 12 v. Illinois State Bar Ass’n,
17
and United
Transportation Union v. State Bar of Michigan,
18
the Court extended to
unions the First Amendment right of organizations to advise their
members about their legal rights and remedies free of state regulation of
the legal profession. In these cases, the Supreme Court recognized the First
Amendment association and petition rights of unions to advise their
members about how to seek compensation for work-related injuries
through litigation and other means. The majority opinion in United
Transportation Union stated: “The common thread running through our
decisions in NAACP v. Button, Trainmen, and United Mine Workers is that
collective activity undertaken to obtain meaningful access to the courts is
a fundamental right within the protection of the First Amendment.”
19
The
Supreme Court also recognized a First Amendment right to access the
courts under the petition clause in California Motor Transport Co. v.
Trucking Unlimited when it concluded that it would be destructive to hold
that groups with common interests could not use the courts to advocate
their causes of action vis-à-vis their competitors, unless their litigation was
sham.
20
In this case, plaintiffs sued competing trucking companies and
alleged that defendants conspired to violate federal antitrust laws by
commencing federal and state litigation to interfere with plaintiffs’ ability
to acquire or transfer operating rights.
21
Defendants countered that
plaintiffs’ suit violated defendants’ First Amendment right to petition
government for redress of grievances.
22
The Court agreed with defendants
and stated: “Certainly the right to petition extends to all departments of the
Government. The right of access to the courts is indeed but one aspect of
the right of petition.”
23
Thus, the Judicial Branch of government performs the indispensable
role of ensuring that all persons can enforce their legal rights. The First
Amendment right to petition the government for a redress of grievances
has been consistently interpreted by the Supreme Court to include the right
to file civil actions in courts to enforce these rights.
16
. Brotherhood of R.R. Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1, 8 (1964).
17
. United Mine Workers of Am., Dist. 12 v. Ill. State Bar Ass’n, 389 U.S. 217, 221–22 (1967).
18
. United Transp. Union v. State Bar of Mich., 401 U.S. 576, 580–81 (1971).
19
. Id. at 585.
20
. Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510–11 (1972).
21
. Id. at 509.
22
. Id. at 510.
23
. Id.
2021] The Poor & Government Redress for Grievances 761
II. FILING FEES AND IN FORMA PAUPERIS PETITIONS
Despite the constitutional right to access the courts, fees to file
civil claims can be substantial, impeding poor persons who seek to
pursue civil legal actions. For example, the fee to file a civil action in
federal court is $402.
24
Federal district court judges may approve the commencement of a
civil action without prepayment of fees based on the submission of an in
forma pauperis affidavit stating the prospective plaintiff’s assets and
asserting an inability to pay court fees.
25
Many state courts also have in forma pauperis processes allowing
the filing of some civil actions without payment of court filing fees.
However, these in forma pauperis processes are not available to all
potential litigants. For example, in both Boddie v. Connecticut and United
States v. Kras, in forma pauperis processes were not available to the poor
persons seeking to file these civil court claims.
26
Additionally, courts may
deny in forma pauperis petitions. In Ortwein v. Schwab, welfare recipients
sought to pursue administrative review actions in court without paying
filing fees, but their in forma pauperis petitions were denied without
explanation.
27
Court procedures for reviewing in forma pauperis petitions
can be lax and opaque, resulting in some poor persons being unable
to pursue their civil legal claims based on ambiguous court processing of
their petitions.
28
Expensive court filing fees can pose an impediment to poor plaintiffs
seeking to pursue civil litigation. The in forma pauperis procedures
available to overcome this impediment are often inadequate or
unavailable, as demonstrated in Boddie, Kras, and Ortwein.
24
. 28 U.S.C. § 1914(a) requires a $350 filing fee to institute any civil action. Pursuant to
28 U.S.C. § 1914(b), the Judicial Conference of the United States requires an additional $52
administrative fee for filing a civil action in a district court. 28 U.S.C.A. § 1914 ¶ 14 (West 2020)
(“Administrative fee for filing a civil action, suit, or proceeding in a district court, $52.”).
25
. 28 U.S.C. § 1915(a)(1).
26
. See infra Sections III.A, III.B. In Boddie, in forma pauperis processes were not available in
Connecticut state court civil actions. Boddie v. Connecticut, 286 F. Supp. 968, 973–74 (D. Conn.
1968). In Kras, the Supreme Court determined that in forma pauperis processes are not available in
bankruptcy cases. United States v. Kras, 409 U.S. 434, 439 (1973).
27
. See infra Section III.C.
28
. See Laura Ernde, Fee Waivers Denied for the Poor, L.A. DAILY J., Sept. 14, 2011, at 592.
See generally Andrew Hammond, Pleading Poverty in Federal Court, 128 YALE L.J. 1478 (2019)
(surveying review of in forma pauperis petitions by federal judges and concluding that the in forma
pauperis process in federal courts is irrational, inefficient, and invasive).
762 Seattle University Law Review [Vol. 44:757
III. SUPREME COURT CASES INVOLVING ACCESS OF THE POOR TO CIVIL
COURTS
In Boddie v. Connecticut,
29
United States v. Kras,
30
and Ortwein v.
Schwab,
31
the Supreme Court rejected arguments that all persons have a
constitutional right to access the courts to pursue civil claims, even when
they cannot afford to pay court filing fees. The Court decided these three
cases during the same period that it decided the cases involving the First
Amendment right of groups and organizations to access the civil courts.
32
Thus, while the Court recognized a First Amendment right of groups and
organizations to access courts, it denied the same right to poor persons
based on their inability to pay civil court filing fees.
A. Boddie v. Connecticut
In Boddie v. Connecticut, the Supreme Court ignored plaintiffs’ First
Amendment argument, but held that due process prohibits states from
denying welfare recipients access to court to pursue divorce actions due to
their inability to pay court filing fees.
33
In this case, a class action was filed
in federal district court alleging that female welfare recipients in
Connecticut were unconstitutionally prohibited from pursuing divorce
actions in Connecticut state courts due to their inability to pay court filing
fees.
34
Plaintiffs argued that this prohibition violated their First
Amendment right to petition the government for redress of grievances and
their Fourteenth Amendment rights to due process and equal protection.
35
The three-judge district court panel dismissed plaintiffs’ complaint
because it found no fundamental right to access court without paying the
required filing fees.
36
Plaintiffs appealed the district court’s decision, and
the Supreme Court noted probable jurisdiction and transferred the case to
its appellate docket.
37
Plaintiffs made the same First Amendment argument to the Supreme
Court, adding that the constitutional right to access court is applicable to
the states under the Fourteenth Amendment’s Due Process Clause.
38
They
29
. Boddie v. Connecticut, 401 U.S. 371, 382–83 (1971).
30
. Kras, 409 U.S. at 447.
31
. Ortwein v. Schwab, 410 U.S. 656, 659–60 (1973).
32
. The Supreme Court later recognized that individual persons also have a First Amendment
right to file civil court actions under the Petition Clause. See Borough of Duryea v. Guarnieri, 564
U.S. 379, 387 (2011).
33
. Boddie, 401 U.S. at 374.
34
. Boddie v. Connecticut, 286 F. Supp. 968, 970 (D. Conn. 1968).
35
. Id.
36
. Id. at 973–74.
37
. Boddie v. Connecticut, 395 U.S. 974 (1969).
38
. Brief of Appellants at 26, 29, Boddie v. Connecticut, 401 U.S. 371 (1971) (No. 27).
2021] The Poor & Government Redress for Grievances 763
further asserted that the district court ignored their First Amendment
argument despite the fact that it was briefed and argued there.
39
The Supreme Court ruled in favor of the poor plaintiffs but ignored
their First Amendment argument.
40
Instead, the Court concluded that the
importance of marriage in “society’s hierarchy of values and the
concomitant state monopolization of the means for” dissolving the marital
relationship compelled its due process decision.
41
The Court was careful
to point out that its decision only applied to indigent persons seeking
divorce, and it did not decide that all persons have a due process right to
access courts in all circumstances.
42
In his concurring opinion, Justice
Brennan asserted that the due process right to be heard requires that
indigent persons not be denied access to courts by filing fee requirements
when they seek to vindicate any right under federal or state law.
43
Although Justice Brennan reached his conclusion through the Due Process
Clause rather than the First Amendment, he was the first Justice to
recognize a constitutional right of poor people to access civil courts to
vindicate their legal rights.
B. United States v. Kras
In Kras, the Supreme Court held that neither due process nor equal
protection allowed Robert Kras to proceed to bankruptcy discharge
without paying court filing fees.
44
Mr. Kras sought to file a petition for
bankruptcy in federal district court, but the clerk refused his petition
because he could not pay the filing fees.
45
Mr. Kras filed a motion for leave
to file his petition in bankruptcy without prepayment of filing fees due to
his indigency.
46
The district court judge who considered Mr. Kras’s motion held that
to not allow Mr. Kras to file his bankruptcy petition because of his inability
to pay court filing fees violated equal protection under the Fifth
Amendment’s Due Process Clause.
47
The judge relied on In re Smith,
48
which held that access to the courts is a fundamental interest and court
filing fees are not a compelling government interest that satisfy equal
39
. Id. at 30.
40
. Boddie v. Connecticut, 401 U.S. 371, 374, 383 (1971).
41
. Id. at 374.
42
. Id. at 382–83.
43
. Id. at 387–88 (Brennan, J., concurring).
44
. United States v. Kras, 409 U.S. 434, 446, 450 (1973).
45
. In re Kras, 331 F. Supp. 1207, 1208 (E.D.N.Y. 1971).
46
. Id. at 1208–09.
47
. Id. at 1212.
48
. Id. at 1210–11.
764 Seattle University Law Review [Vol. 44:757
protection.
49
The United States appealed the district court’s decision,
arguing that the waiver of filing fees was unconstitutional, and the
Supreme Court noted probable jurisdiction.
50
In the Supreme Court, Mr. Kras argued that “there is only one right
at issue in this case and that is the right to access the courts.”
51
He asserted
that this right derived from the Due Process Clause of the Fifth
Amendment and its equal protection component.
52
The Supreme Court reversed the district court and prohibited Mr.
Kras from obtaining a bankruptcy discharge until he paid the court filing
fees.
53
In doing so, the Court mischaracterized the district court’s decision
as holding that “a discharge in bankruptcy was a ‘fundamental interest.’”
54
In fact, the district court held that access to court is a fundamental
interest.
55
As a result, the Supreme Court found no fundamental interest to
be implicated in Mr. Kras’ bankruptcy petition, explaining: “We see no
fundamental interest that is gained or lost depending on the availability of
a discharge in bankruptcy.”
56
The Court also reasoned that, unlike the
plaintiffs in Boddie, Mr. Kras had alternative remedies available to him. It
stated, “In contrast with divorce, bankruptcy is not the only [legal] method
available to a debtor for the adjustment of his legal relationship with his
creditors.”
57
In dissent, Justice Marshall viewed the case as involving the
right to access the courts, the only forum in our legal system empowered
to authoritatively resolve a person’s claim of right under law.
58
For that
reason, Justice Marshall would have granted Mr. Kras his “day in court,”
regardless of his inability to pay court filing fees.
59
49
. In Smith, the district court considered the constitutionality of the filing fees in a bankruptcy
case as applied to an indigent person and found that access to court is a fundamental interest and the
government’s requirement of a filing fee is not a compelling government interest. In re Smith, 323 F.
Supp. 1082 ,1087–88 (D. Colo. 1971). As a result, the court held that the equal protection component
of the Fifth Amendment Due Process Clause allowed Ms. Smith to proceed in the bankruptcy case
without paying a filing fee. Id. at 1085. Due to its reliance on equal protection, the court did not
consider Ms. Smith’s argument that the filing fee also violated her First Amendment right to petition
for redress of grievances. Id.
50
. United States v. Kras, 405 U.S. 915 (1972).
51
. Brief for Appellee at 16, United States v. Kras, 409 U.S. 434 (1973) (No. 71-749).
52
. Id. at 21–22.
53
. Kras, 409 U.S. at 450.
54
. Id. at 440.
55
. The court stated “that what is at stake here is not simply bankruptcy but access to court, a
fundamental interest.” In re Kras, 331 F. Supp. 1207, 1214 (E.D.N.Y. 1971).
56
. Kras, 409 U.S. at 445.
57
. Id.
58
. Id. at 462–63 (Marshall, J., dissenting).
59
. Id.
2021] The Poor & Government Redress for Grievances 765
C. Ortwein v. Schwab
In Ortwein v. Schwab, the Supreme Court held that welfare recipients
were denied neither due process nor equal protection when they were
barred from pursuing civil cases in Oregon state courts due to their
inability to pay court filing fees.
60
In this case, the Oregon state welfare department’s reduction of
benefits to two welfare recipients was upheld after the recipients contested
the reductions in administrative hearings conducted by the welfare
department.
61
Under Oregon law, the welfare recipients had a right to
seek judicial review of these administrative decisions in the Oregon Court
of Appeals.
62
Each moved to proceed in forma pauperis to seek waiver
of their filing fees in the court of appeals, but their motions were denied
without opinions.
63
They then sought a writ of mandamus from
the Supreme Court of Oregon to order the Oregon Court of Appeals
to waive their filing fees and review their administrative decisions
pursuant to state law.
64
The welfare recipients argued in the Supreme Court of Oregon that
they were entitled to have their filing fees waived based on their First
Amendment right to petition the government for redress of grievances and
their Fourteenth Amendment rights to due process and equal protection.
65
The Supreme Court of Oregon found that the First Amendment “is not
relevant to our present inquiry”
66
and held that the failure to provide
judicial review of state administrative decisions does not violate due
process.
67
The Oregon Supreme Court further held that the right to obtain
judicial review of an adverse decision of the state welfare department is
not a fundamental right; therefore, equal protection is not violated by
making such right dependent upon paying a court filing fee.
68
The Oregon
Supreme Court concluded that the welfare recipients must pay the required
fees to file their administrative review cases.
69
The welfare recipients
appealed to the United States Supreme Court where the Court affirmed
without considering either briefs or argument.
70
60
. Ortwein v. Schwab, 410 U.S. 656, 660–61 (1973).
61
. Id. at 656–57.
62
. Id. at 658; OR. REV. STAT. § 183.480(2) (1971).
63
. Ortwein, 410 U.S. at 658.
64
. Id.
65
. Ortwein v. Schwab, 498 P.2d 757, 758–59 (Or. 1972).
66
. Id. at 759.
67
. Id. at 760–61.
68
. Id. at 761.
69
. Id. at 761–62.
70
. Ortwein v. Schwab, 410 U.S. 656, 663 (1973).
766 Seattle University Law Review [Vol. 44:757
The United States Supreme Court affirmed the Oregon Supreme
Court’s decisions based on United States v. Kras.
71
It found that, like the
petitioner in Kras who had alternative remedies to adjust relationships
with his creditors, the welfare recipients had alternative redress because
their welfare benefit reductions were reviewed in state agency hearings.
72
As a result, the Court found that the welfare recipients were not denied due
process.
73
In a conclusory footnote, the Court stated that its due process
analysis demonstrated that the welfare recipients’ First Amendment rights
to petition for redress “have been fully satisfied.”
74
However, a hearing
before a state administrative agency is not equivalent to obtaining judicial
review of the agency’s decision in the appellate courts of the state as is
explicitly allowed by Oregon state law. Access to the Judicial Branch
of government to enforce rights under state law is certainly one of the basic
protections afforded under the First Amendment right to petition
the government for redress of grievances. A state administrative hearing
does not satisfy the important First Amendment right to access the
courts to seek judicial review of the decision rendered at the state
administrative hearing.
As to equal protection, the Supreme Court found no fundamental
interest or suspect class adversely affected by the court filing fee
requirements and concluded that the applicable standard of review is that
of rational justification.
75
Since the state court filing fees provide revenue
that offsets the costs of operating the Oregon court system and is an
effective means to achieve this goal, the Court found the requirement of
rationality met and equal protection satisfied.
76
The United States Supreme
Court affirmed the decision of the Supreme Court of Oregon that welfare
recipients must pay the court filing fees as a condition of having their
administrative review cases heard in the Oregon Court of Appeals.
77
IV. UNITED STATES SUPREME COURT DECISIONS ON CIVIL COURT
FILING FEES AS THEY APPLY TO THE POOR AND THEIR CONSTITUTIONAL
RIGHT TO ACCESS THE COURTS
As a composite, the United States Supreme Court’s decisions in
Boddie, Kras, and Ortwein indicate that courts should consider two factors
in determining the constitutionality of civil court filing fees as they apply
to poor persons who cannot afford to pay them:
71
. Id. at 656.
72
. Id. at 659–60.
73
. Id.
74
. Id. at 660 n.5.
75
. Id. at 660.
76
. Id.
77
. Id. at 656, 661.
2021] The Poor & Government Redress for Grievances 767
• First, does the underlying court case that a poor person seeks to
file implicate a fundamental constitutional interest? If so, this
factor favors the waiver of the fee under the United States
Constitution.
• Second, does judicial review represent the exclusive means
available to protect the person’s fundamental constitutional
interest? If so, this factor also favors the waiver of the fee under
the United States Constitution.
In Boddie, both of these factors favored the welfare recipient
members of the plaintiff class. As a result, the filing fees for divorce
actions as applied to plaintiffs who could not afford to pay them were held
unconstitutional under the Due Process Clause of the Fourteenth
Amendment. In contrast, neither of these factors favored the poor persons
seeking to file civil court actions in Kras and Ortwein, so plaintiffs were
required to pay the court filing fees to have their cases heard in court. Kras
and Ortwein yielded the shocking outcomes of poor persons being denied
access to the Judicial Branch of government to seek redress of their
grievances based on their inability to pay court filing fees.
The other shocking aspect of Boddie, Kras, and Ortwein as a
triumvirate of cases is that the Supreme Court ignored arguments made in
each case that all persons have a constitutional right to seek enforcement
of their legal rights in civil courts.
78
The Court also did not acknowledge
its own decisions recognizing a First Amendment right of groups and
organizations to pursue civil court claims under their right to petition the
government for redress of grievances, even though these issues were raised
in Boddie and Ortwein.
79
The Supreme Court should have addressed these
arguments and precedents squarely to determine whether the poor have a
constitutional right to access courts to enforce their legal rights, even when
they cannot afford to pay court filing fees. At the very least, the Supreme
Court should have determined whether the government had a compelling
interest to impose civil court filing fees under equal protection since these
fees limited the poor persons’ exercise of their First Amendment rights to
access courts.
80
78
. In Boddie and Ortwein, appellants argued in the United States Supreme Court that they had
a constitutional right under the First Amendment to access the courts to petition the government for
redress of grievances. Boddie v. Connecticut, 401 U.S. 371, 373–74 (1971); Ortwein, 410 U.S. at 659–
60. In Kras, the appellee argued that he had a right to access the courts derived from the Due Process
Clause of the Fifth Amendment and its equal protection component. United States v. Kras, 409 U.S.
434, 435 (1973).
79
. See supra Part III.
80
. See NAACP v. Button, 371 U.S. 415, 438–39 (1963).
768 Seattle University Law Review [Vol. 44:757
V. VOTING RIGHTS ANALOGY OF THE RIGHT TO ACCESS COURT BY
PERSONS WHO CANNOT AFFORD TO PAY FILING FEES
The First Amendment right to access courts, like the right to vote,
should not allow the payment of a government-imposed fee as a
precondition for exercising a constitutional right. In 1966, the Supreme
Court decided Harper v. Virginia State Board of Elections and held that
the requirement of the payment of a poll tax in order to vote in a state
election violated equal protection.
81
In Harper, the State of Virginia
imposed an annual poll tax on residents who were twenty-one years of age
and older, and if the tax was not paid, a delinquent resident could not vote
in state elections.
82
The Court in Harper noted that the Supreme Court had
long recognized that voting is preservative of all rights.
83
The Court found
that government classifications restraining the right to vote must be closely
scrutinized under equal protection because voting is a fundamental
interest.
84
The Court concluded that the Fourteenth Amendment’s Equal
Protection Clause is violated whenever the affluence of voters or the
payment of any fee is an electoral standard.
85
As the right to vote provides citizens the constitutional right to
choose their representatives in the executive and legislative branches, the
First Amendment provides Americans the constitutional right to access the
Judicial Branch of government to seek redress of grievances.
86
The Supreme Court has also long recognized that, like the right to vote,
access to courts protects all legal rights: “The right to sue and defend in
the courts is the alternative of force. In an organized society it is the right
conservative of all other rights, and lies at the foundation of orderly
government.”
87
Under equal protection, the payment of a court filing
fee should not be a precondition for a poor person to exercise the
constitutional right to pursue civil legal claims in courts, just as
the affluence of a voter or the payment of any fee should not limit the
right to vote.
81
. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666 (1966). Harper is a voting rights
case involving a similar issue as Boddie, Kras, and Ortwein: whether the right to vote in a state election
can be conditioned on the payment of a fee. The issue in Harper is analogous to whether poor persons
can be constitutionally required to pay filing fees to access courts.
82
. Id. at 664 n.1.
83
. Id. at 667 (citing Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)).
84
. Id. at 670.
85
. Id. at 666.
86
. See Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510–11 (1972).
87
. Chambers v. Balt. & Ohio R.R. Co., 207 U.S. 142, 148 (1907).
2021] The Poor & Government Redress for Grievances 769
CONCLUSION
The United States Supreme Court has consistently recognized a First
Amendment right to access courts to pursue redress of grievances for
various groups, organizations, and persons: the NAACP;
88
labor unions;
89
trucking companies;
90
restaurant owners;
91
major motion-picture studios;
92
an industrial general contractor;
93
and a former police chief of a borough
in Pennsylvania.
94
However, the Supreme Court has not only declined to
provide this First Amendment protection to poor persons seeking to file
civil claims in courts, but it has also declined to address the issue when it
has been directly raised before it.
95
As a result, poor persons are denied the
protections of a First Amendment right that is available to all other
Americans: The right to pursue a civil claim in court.
96
Poor persons who cannot afford to pay civil court filing fees deserve
better. They should be accorded the same First Amendment right to access
the courts that is available to other groups, organizations, and persons. The
poor will then be able to fully participate in the Judicial Branch of
government to exercise their right to seek redress of their legal grievances.
88
. See NAACP v. Button, 371 U.S. 415, 428–30 (1963).
89
. See generally Brotherhood of R.R. Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1,
16–19 (1964); United Mine Workers of Am., Dist. 12. v. Ill. State Bar Ass’n, 389 U.S. 217 (1967).
90
. See generally United Transp. Union v. State Bar of Mich., 401 U.S. 576 (1971).
91
. Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 741–43 (1983).
92
. Pro. Real Est. Invs., Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 52, 62 (1993).
93
. BE & K Constr. Co. v. NLRB, 536 U.S. 516, 535–37 (2002).
94
. Borough of Duryea v. Guarnieri, 564 U.S. 379, 387 (2011).
95
. See supra notes 49, 51 and accompanying text.
96
. The author is not the first person to assert that the poor are denied some constitutional rights
that are available to other persons. See Julie A. Nice, No Scrutiny Whatsoever: Deconstitutionalization
of Poverty Law, Dual Rules of Law, & Dialogic Default, 35 FORDHAM URB. L.J. 629 (2008) (asserting
that the poor are denied the protections of certain constitutional rights that are available to other
persons).
