# United States v. Kras/Dissent Marshall

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* Concurring Opinion Burger
* Dissenting Opinions Stewart Douglas and Brennan Marshall
[p451] MR. JUSTICE MARSHALL, dissenting.
The dissent of MR. JUSTICE STEWART, in which I have joined, makes clear the majority's failure to distinguish this case from Boddie v. Connecticut, 401 U.S. 371 (1971). I add only some comments on the extraordinary route by which the majority reaches its conclusion.
A. The majority notes that the minimum amount that appellee Kras must pay each week if he is permitted to pay the filing fees in installments is only $1.28. It says that "this much available revenue should be within his able-bodied reach." Ante, at 449.
Appellee submitted an affidavit in which he claimed that he was "unable to pay or promise to pay the filing fees, even in small installments." App. 5. This claim was supported by detailed statements of his financial [p459] condition. The affidavit was unchallenged below, but the majority does challenge it. The District Judge properly accepted the factual allegations as true. See, e.g., Poller v. Columbia Broadcasting System, 368 U.S. 464 (1962); First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968); 35B C.J.S., Federal Civil Procedure § 1197 n. 4 (1960). The majority seems to believe that it is not restrained by the traditional notion that judges must accept unchallenged, credible affidavits as true, for it disregards the factual allegations and the inferences that necessarily follow from them. I cannot treat that notion so cavalierly.
Even if Kras' statement that he was unable to pay the fees was an honest mistake, surely he cannot have been mistaken in saying that he could not promise to pay the fees. The majority does not directly impugn his good faith in making that statement. Yet if he cannot promise to pay the fees, he cannot get the interim relief from creditor harassment that, the majority says, may enable him to pay the fees.
But beyond all this, I cannot agree with the majority that it is so easy for the desperately poor to save $1.92 each week over the course of six months. The 1970 Census found that over 800,000 families in the Nation had annual incomes of less than $1,000 or $19.23 a week. U.S. Bureau of Census, Current Population Reports, series P-60, No. 80; U.S. Bureau of Census, Statistical [p460] Abstract of the United States 1972, p. 323. I see no reason to require that families in such straits sacrifice over 5% of their annual income as a prerequisite to getting a discharge in bankruptcy.
It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. A sudden illness, for example, may destroy whatever savings they may have accumulated, and by eliminating a sense of security may destroy the incentive to save in the future. A pack or two of cigarettes may be, for them, not a routine purchase but a luxury indulged in only rarely. The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity. They have more important things to do with what little money they have—like attempting to provide some comforts for a gravely ill child, as Kras must do.
It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.
B. The majority derives some solace from the detail of certiorari in In re Garland, 402 U.S. 966 (1971). [p461] Reliance on denial of certiorari for any proposition impairs the vitality of the discretion we exercise in controlling the cases we hear. See Brown v. Allen, 344 U.S. 443, 491-492 (1953) (opinion of Frankfurter, J.). For all that the legal community knows, Mr. Justice Harlan did not join the dissent from denial of certiorari in that case for reasons different from those that the majority uses to distinguish this case from Boddie. Perhaps he believed that lower courts should have some time to consider the implications of Boddie. Most of the lower courts have refused to follow the First Circuit's decision in Garland, 428 F.2d 1185. See ante, at 453 n. 5 (STEWART, J., dissenting). Perhaps he thought that the record in that case made inappropriate any attempt to determine the scope of Boddie in that particular case. Or perhaps he had some other reason.
The point of our use of a discretionary writ is precisely to prohibit that kind of speculation. When we deny certiorari, no one, not even ourselves, should think that the denial indicates a view on the merits of the case. It ill serves judges of the courts throughout the country to tell them, as the majority does today, that in attempting to determine what the law is, they must read, not only the opinions of this Court, but also the thousands of cases in which we annually deny certiorari.\
C. The majority says that "[t]he denial of access to the judicial forum in Boddie touched directly... on the marital relationship." It sees "no fundamental interest [p462] that is gained or lost depending on the availability of a discharge in bankruptcy." Ante, at 444, 445. If the case is to turn on distinctions between the role of courts in divorce cases and their rule in bankruptcy cases, I agree with MR. JUSTICE STEWART that this case and Boddie cannot be distinguished; the role of the Government in standing ready to enforce an otherwise continuing obligation is the same.
However, I would go further than MR. JUSTICE STEWART. I view the case as involving the right of access to the courts, the opportunity to be heard when one claims a legal right, and not just the right to a discharge in bankruptcy. When a person raises a claim of right or entitlement under the laws, the only forum in our legal system empowered to determine that claim is a court. [p463] Kras, for example, claims that he has a right under the Bankruptcy Act to be free of any duty to pay his creditors. There is no way to determine whether he has such a right except by adjudicating his claim. Failure to do so denies him access to the courts.
The legal system is, of course, not so pervasive as to preclude private resolution of disputes. But private settlements do not determine the validity of claims of right. Such questions can be authoritatively resolved only in courts. It is in that sense, I believe, that we should consider the emphasis in Boddie on the exclusiveness of the judicial forum—and give Kras his day in court.

## Notes

* ↑ The majority also misrepresents appellee's financial condition. It says that $1.28 "is a sum less than the payments Kras makes on his couch of negligible value in storage." Ante, at 449. Nowhere in the slender record of this case can I find any statement that appellee is actually paying anything for the storage of the couch. He said only that he "owed payments of $6 per month" for storage. App. 5 (emphasis added). He also stated that he owed $6,428.69, but I would hardly read that to mean that he was paying that much to anyone.
* ↑ The majority, in citing the "record of achievement" of the bank- ruptcy system in terminating 107,481 no-asset cases in the fiscal year 1969, ante, at 448 n. 7, relies on spectral evidence. Because the filing fees bar relief through the bankruptcy system, statistics showing how many people got relief through that system are unenlightening on the question of how many people could not use the system because they were too poor. I do not know how many people cannot afford to pay a $50 fee in installments. But I find nothing in the majority's opinion to convince me that due process is afforded a person who cannot receive a discharge in bankruptcy because he is too poor. Even if only one person is affected by the filing fees, he is denied due process.
* ↑ That one of us undertook to write a dissent, even a "pointed dissent," from the denial of certiorari should suggest, again, nothing at all about the views of any other Members of the Court on the merits of the petition. Surely each of us has seen many cases in which a colleague's dissent from the denial of certiorari pointed to an issue of great concern that we thought should be decided by this Court, but in which we did not join because we did not consider the case to be an appropriate vehicle for determination of that issue.
* ↑ I am intrigued by the majority's suggestion that, because the granting of a divorce impinges on "associational interests," the right to a divorce is constitutionally protected. Are we to require that state divorce laws serve compelling state interests? For example, if a State chooses to allow divorces only when one party is shown to have committed adultery, must its refusal to allow them when the parties claim irreconcilable differences be justified by some compelling state interest? I raise these questions only to suggest that the majority's focus on the relative importance in the constitutional scheme of divorce and bankruptcy is misplaced. What is involved is the importance of access to the courts, either to remove an obligation that other branches of the government stand ready to enforce, as MR. JUSTICE STEWART sees it, or to determine claims of right, as I see it.
* ↑ The majority suggests that no such right is involved, because Congress could have committed the administration of the Bankruptcy Act to a nonjudicial agency. Ante, at 447. I have some doubt about the proposition that a statutorily created right can be finally determined by an agency, with no method for a disappointed claimant to secure judicial review. But I have no doubt that Congress could not provide that only the well-off had the right to present their claims to the agency. As should be clear, the question is one of access to the forum empowered to determine the claim of right; it is only shorthand to call this a question of access to the courts.
* ↑ It might be said that the right he claims does not come into play until he has fulfilled a condition precedent by paying the filing fees. But the distinction between procedure and substance is not unknown in the law and can be drawn on to counter that argument.