# United States v. Kras/Dissent Stewart

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* Case Syllabus
* Opinion of the Court
* Concurring Opinion Burger
* Dissenting Opinions Stewart Douglas and Brennan Marshall
[p451] MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL join, dissenting.
On May 28, 1971, Robert Kras, the appellee, sought to file a voluntary petition in bankruptcy. In an accompanying affidavit, he described his economic plight. He resided in a 2½-room apartment with his wife, his two young children, his mother, and her child. His eight-month-old son had cystic fibrosis and at the time of the [p452] affidavit was undergoing hospital treatment. Unemployed since May 1969, except for odd jobs, he supported his household on a total public assistance allotment of $366 per month—all of which was consumed on rent and the most basic necessities of life. His sole assets consisted of $50 worth of clothing and essential household goods.
He sought a discharge from over $6,000 in debts, particularly his indebtedness to a former employer that he contended hampered his present efforts to find a permanent job: "I earnestly seek a discharge in bankruptcy... in order to relieve myself and my family of the distress of financial insolvency and creditor harassment and in order to make a new start in life.... When I do get a job I want to be able to spend my wages for the support of myself and my family and for the medical care of my son, instead of paying them to my creditors and forcing my family to remain dependent on welfare."
He indicated that he was unable to pay the $50 bankruptcy filing fee in a lump sum, and could not promise to pay it in installments, as required before the petition could be filed. He contended that the fee requirement [p453] was unconstitutional as applied to him, and moved for leave to proceed without paying the fee.
The District Court held that under the doctrine of Boddie v. Connecticut, 401 U.S. 371, the statutory requirement of a prepaid bankruptcy filing fee would violate Kras' Fifth Amendment right to due process of law. 331 F.Supp. 1207, 1212. The court ordered the petition filed and directed the referee in bankruptcy to make provision for the survival of the appellee's obligation to pay the filing fee. We noted probable jurisdiction of the Government's appeal. 405 U.S. 915. I agree with the District Court and would, therefore, affirm its judgment.
Boddie held that a Connecticut statute requiring the payment of an average $60 fee as a prerequisite to a divorce action was unconstitutional under the Due Process [p454] Clause of the Fourteenth Amendment, as applied to indigents unable to pay the fee. The Court reasoned that due process protections are traditionally viewed as safeguards for a defendant, because at the point when a plaintiff invokes the governmental power of a court, the judicial proceeding is "the only effective means of resolving the dispute at hand and denial of a defendant's full access to that process raises grave problems for its legitimacy." 401 U.S., at 376. But a party to a marriage remains under serious and continuing obligation imposed by the State, which cannot be removed except by judicial dissolution of the marital bond. Thus, we concluded that:
   "[A]lthough they assert here due process rights as would-be plaintiffs, we think appellants' plight, because resort to the state courts is the only avenue to dissolution of their marriages, is akin to that of defendants faced with exclusion from the only forum effectively empowered to settle their disputes. Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court. For both groups this process is not only the paramount dispute-settlement technique, but, in fact, the only available one." Id., at 376-377.
The violation of due process seems to me equally clear in the present case. It is undisputed that Kras is making a good-faith attempt to obtain a discharge in bankruptcy, and that he is in fact indigent. As was true in Boddie, the "welfare income... barely suffices to meet the costs of the daily essentials of life and includes no allotment that could be budgeted for the expense to gain access to the courts...." Id., at 372-373.
[p455] Similarly, the debtor, like the married plaintiffs in Boddie, originally entered into his contract freely and voluntarily. But it is the Government nevertheless that continues to enforce that obligation, and under our "legal system" that debt is effective only because the judicial machinery is there to collect it. The bankrupt is bankrupt precisely for the reason that the State stands ready to exact all of his debts through garnishment, attachment, and the panoply of other creditor remedies. The appellee can be pursued and harassed by his creditors since they hold his legally enforceable debts.
And in the unique situation of the indigent bankrupt, the Government provides the only effective means of his ever being free of these Government-imposed obligations. As in Boddie, there are no "recognized, effective alternatives," id., at 376. While the creditors of a bankrupt with assets might well desire to reach a compromise settlement, that possibility is foreclosed to the truly indigent bankrupt. With no funds and not even a sufficient prospect of income to be able to promise the payment of a $50 fee in weekly installments of $1.28, the assetless bankrupt has absolutely nothing to offer his creditors. And his creditors have nothing to gain by allowing him to escape or reduce his debts; their only hope is that eventually he might make enough income for them to attach. Unless the Government provides him access to the bankruptcy court, Kras will remain in the totally hopeless situation he now finds himself. The Government has thus truly pre-empted the only means for the [p456] indigent bankrupt to get out from under a lifetime burden of debt.
The Government contends that the filing fee is justified by the congressional decision to make the bankruptcy system self-supporting. But in Boddie we rejected this same "pay as you go" argument, finding it an insufficient justification for excluding the poor from the only available process to dissolve a marriage. 401 U.S., at 381. The argument is no more persuasive here. The Constitution cannot tolerate achievement of the goal of self-support for a bankruptcy system, any more than for a domestic relations court, at the price of denying due process of law to the poor. In re Naron, 334 F.Supp. 1150, 1151; In re Smith, 323 F.Supp. 1082, 1088.
[p457] In my view, this case, like Boddie, does not require us to decide "that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause... so that its exercise may not be placed beyond the reach of any individual...." 401 U.S., at 382-383. It is sufficient to hold, as Boddie did, that "a State may not, consistent with the obligations imposed on it by the Due Process Clause..., pre-empt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so." Id., at 383.
The Bankruptcy Act relieves "the honest debtor from the weight of oppressive indebtedness and [permits] him to start afresh free from the obligations and responsibilities consequent upon business misfortunes," Williams v. United States Fidelity & Guaranty Co., 236 U.S. 549, 554-555. It holds out a promise to the debtor of "a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt." Local Loan Co. v. Hunt, 292 U.S. 234, 244. Yet the Court today denies that promise to those who need it most, to those who every day must live face-to-face with abject poverty—who cannot spare even $1.28 a week.
The Court today holds that Congress may say that some of the poor are too poor even to go bankrupt. I cannot agree.

## Notes

* ↑ These items are exempt from distribution in bankruptcy pursuant to 11 U.S.C. § 24 and N.Y. Civ. Prac. Law § 5205 (1963).
* ↑ The fee consists of $37 for the referees' salary and expense fund, $10 compensation for the trustees, and $3 to the clerk as a filing fee. 11 U.S.C. §§ 68 (c)(1), 76 (c), 80 (a).
* ↑ This Court's General Order in Bankruptcy No. 35 (4), authorized by 11 U.S.C. § 68 (c)(1), permits fees to be paid in installments over a six-month period, amounting to $1.92 a week; and, for cause, this period may be extended for an additional three months, so that the debtor would only be required to pay $1.28 per week. But before the bankruptcy petition can be filed, the petitioner must both indicate that he is without, and cannot obtain, money with which to pay the fee in advance, and set forth the terms upon which he proposes to make installment payments.
* ↑ The appellee also contended that the filing fee should be waived under the general federal in forma pauperis statute, 28 U.S.C. § 1915 (a). That contention was rejected by the District Court on the grounds that, in 1946, Congress expressly eliminated bankruptcy petitions in forma pauperis, and substituted installment payments. 11 U.S.C. § 68 (c). In light of the clear congressional intent to eliminate pauper petitions, the court concluded, Congress did not intend to allow bankrupts to proceed under the general in forma pauperis statute. See also In re Garland, 428 F. 2d 1185, 1186-1187; In re Smith, 323 F. Supp. 1082, 1084-1085. The appellee does not question that conclusion here.
* ↑ Other federal courts have reached the same conclusion. See In re Haddock, No. 14810 (Conn., May 22, 1972); In re Smith, 341 F.Supp. 1297; In re Ripley, No. Bk 71-0-1003 (Neb., Apr. 28, 1972); In re Ottman, 336 F.Supp. 746; In re Naron, 334 F.Supp. 1150; In re Read, No. Bk 71-826 (WDNY, Oct. 19, 1971). See also In re Shropshire (ND Ia., Mar. 28, 1972); In re Passwater, Nos. IP70-B-3697 and IP70-B-3698 (SD Ind. 1971). But see In re Partilla, No. 71-B-380 (SDNY Oct. 15, 1971); In re Malevich, No. Bk 29-71 (NJ 1971). In re Garland, supra, upon which the Government relies, was decided before our decision in Boddie.
* ↑ The appellee indicated in the affidavit submitted with his petition: "Because of my poverty, I am wholly unable to pay or promise to pay the filing fees, even in small installments, as a condition precedent to discharge and also provide myself and my dependents with day-to-day necessities. I have been unable to borrow money from my family, relatives, or friends. One of the debts of which I seek a discharge in bankruptcy is a loan from my wife's grandmother. The New York City Department of Social Services refuses to allot money for payment of the bankruptcy filing fees. I have no prospect of immediate employment."
* ↑ In Boddie, the Court recognized that marriage was a "fundamental human relationship," 401 U.S., at 383, which involved interests "of basic importance in our society." Id., at 376. But it was not any subjective conception of the "fundamentality" of marriage, or divorce for that matter, that led the Court to find a due process violation in Boddie; rather, the significant factor about marriage was that "[w]ithout a prior judicial imprimatur, individuals may freely enter into and rescind commercial contracts, for example, but we are unaware of any jurisdiction where private citizens may covenant for or dissolve marriages without state approval." Id., at 376. It is the existence of judicially enforced obligations coupled with monopolization of the means of dissolution that similarly besets the indigent bankrupt.
* ↑ Prior to 1946, while pauper petitioners were accepted without payment of fees, the referees whose compensation depended on fees, often demanded payment before granting a discharge. S. Rep. No. 959, 79th Cong., 2d Sess., 6-7 (1946); H.R. Rep. No. 1037, 79th Cong., 1st Sess., 6 (1945). The 1946 Amendments to the Bankruptcy Act eliminated pauper petitions and provided for the payment of fixed fees for every petition filed, and the payment of a fixed percentage of all distributable assets. See H.R. Rep. No. 1037, supra, at 4, 5-6.
* ↑ See Fuentes v. Shevin, 407 U.S. 67, 90 n. 22; Bell v. Burson, 402 U.S. 535, 540-541; Goldberg v. Kelly, 397 U.S. 254, 261; Cf. Griffin v. Illinois, 351 U.S. 12. Moreover, there is no evidence that a substantial amount of revenue would be lost by allowing assetless indigents with no present prospects of paying the fee to file without prepayment. Any loss in fees that did result could be partly recouped by allowing the filing-fee debt to survive bankruptcy.