# Ortwein v. Schwab/Dissent Douglas

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* Dissenting Opinions Douglas Brennan Marshall
[p661] MR. JUSTICE DOUGLAS, dissenting.
The majority today broadens and fortifies the "private preserve for the affluent." Meltzer v. C. Buck Le Craw & Co., 402 U.S. 954, 961 (opinion of DOUGLAS, J.). [p662] The Court upholds a scheme of judicial review whereby justice remains a luxury for the wealthy.

## I

Appellants, welfare recipients whose benefits were reduced after adverse determination by the Oregon Public Welfare Division, were denied access to the Oregon courts for review of those decisions solely on the grounds that they were unable to pay a $25 filing fee. Judicial review of administrative decisions is not otherwise available under Oregon law. I continue to believe that this invidious discrimination against the poverty-stricken—a classification based upon wealth—is proscribed by the Equal Protection Clause of the Fourteenth Amendment. Meltzer, supra; Boddie v. Connecticut, 401 U.S. 371, 383 (DOUGLAS, J., concurring in result); cf. United States v. Kras, 409 U.S. 434, 457 (opinion of DOUGLAS and BRENNAN, JJ.).
There is an additional consideration relevant here. The majority properly notes that "[t]his Court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system." We are concerned in this case not with appellate review of a judicial determination, but with initial access to the courts for review of an adverse administrative determination. By analogizing these two situations, the majority sub silentio answers a question this Court studiously has avoided—where there is a due process right to judicial review. See 4 K. Davis, Administrative Law Treatise § 28.18. Access to the courts before a person is deprived of valuable interests, at least with respect to questions of law, seems to me to be the essence of due process. Cf. Lindsey v. Normet, 405 U.S. 56, 84 (DOUGLAS, J., dissenting in part). We have recognized that token access cannot satisfy the requirements [p663] of due process. See, e.g., Mullane v. Central Hanover Trust Co., 339 U.S. 306. Certainly, no access at all cannot stand in better stead. Appellant Ortwein contends that the order of the Public Welfare Division is not supported by substantial evidence; appellant Faubion contends that the order applicable to her conflicts with federal provisions. Moreover, each contends that the administrative hearing was deficient under Goldberg v. Kelly, 397 U.S. 254, because questions of law were not considered. The majority affirms the judgment without discussing its bearing on appellants' contention that the Oregon scheme of judicial review discriminates against the poor with respect to an exercise of a fundamental right.
Accordingly, I cannot agree that a "rational justification" will support the Oregon statute as it affects the poor. The primary justification by the State and fixed upon by the majority is the State's interest in offsetting the expenses of its court system. This interest falls far short of the "compelling interest" required to justify a suspect classification or discrimination which infringes on fundamental rights. See Boddie v. Connecticut, supra, at 382; Shapiro v. Thompson, 394 U.S. 618, 633.

## II

The majority affirms the judgment below without the benefit of briefs or argument, relying on United States v. Kras, supra. Although I did not join the Court's opinion in Boddie v. Connecticut, supra, I am compelled to comment on the propriety of disposing of this case summarily in view of the decision in that case. However one views the merits of Kras, it seems to me that this case falls far closer to Boddie than Kras.
The majority distinguished Kras from Boddie on three grounds. It is only proper that this case be compared on the same basis.
(1) The majority in Kras concluded that a debtor's desire to obtain a discharge in bankruptcy does not implicate a "fundamental interest." While it is true that our decisions attach less constitutional significance to welfare payments than the interests of the Boddie appellants, we have never decided that there is no constitutional right to judicial review of an adverse administrative determination. The majority also noted in Kras that "[g]aining or not gaining a discharge [in bankruptcy] will effect no change with respect to basic necessities." 409 U.S., at 445. It is clear in this case, however, that appellants suffered an inroad on their ability to subsist.
(2) Unlike Kras, who had a theoretical opportunity to seek relief from his creditors in a nonjudicial accommodation, appellants' only avenue of relief lies in the courts.
(3) Unlike Kras, who was afforded the opportunity to pay the bankruptcy filing fee in installments over six months, appellants must file their fee in a lump sum.