Ortwein v. Schwab (1973)

That indigents seeking to appeal in state court an adverse welfare decision must pay a filing fee does not violate the due process or equal protection clause of the Fourteenth Amendment.

Citation: 262 Ore. 375, 498 P.2d 757, affirmed, 410 U.S. 656 (1973)
Date decided: Mar 5, 1973
Longer case name: Ortwein v. Schwab
Law type: Civil
Jurisdiction level:Federal
State of origin: Oregon
Topic(s):Access to courts, Court fees, Due process, and Equal protection
Lists:Important cases
Attorneys:On the Oregon Supreme Court case: John A. Strait, Portland, and D. Richard Fischer, Eugene, for the petition. (No attorneys listed for SCOTUS case.)
Others involved:
More info: Findlaw.com

Case Importance

“A First Amendment Right of Access to the Courts for Indigents”, Yale Law Journal, Vol. 82: 1055, 1973: “While these distinctions may be less than compelling, Kras, and not Boddie, is currently favored by the Court. In Ortwein v. Schwab the Court extended the rationale of Kras in upholding an Oregon filing fee of $25 for judicial appeals from rulings of the state welfare department. The Court, noting that in Kras it had already “emphasized the specialnature of the marital relationship” protected in Boddie, argued that old-age assistance was of “far less constitutional significance.” Justices Douglas, Brennan, Stewart, and Marshall each argued in separate dissents that Boddie and not Kras should have controlled.”

Case Details

(The syllabus is not part of the opinion, but is a summary prepared by the court reporter as a convenience.)


Appellants challenge the constitutionality of a $25 filing fee, which they were allegedly unable to pay, required to be paid in the state appellate court where they sought review of agency determinations resulting in their receiving reduced welfare payments. Held: Appellants were not deprived of due process, since the increase in welfare payments sought by them has less constitutional significance than the interest of appellants in Boddie v. Connecticut, 401 U.S. 371 , and since evidentiary hearing provided a procedure, not conditioned on payment of any fee, through which appellants were able to seek redress. United States v. Kras, 409 U.S. 434 . Nor is the filing-fee requirement violative of equal protection, since the applicable standard in the area of social and economic regulation when a suspect classification is not present is rational justification and here the requirement of rationality is met.

262 Ore. 375, 498 P.2d 757, affirmed.

From the opinion


Appellants contend that Oregon’s $25 appellate court filing fee, as applied in this case, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment and, also, the First Amendment as incorporated into the Fourteenth. The Supreme Court of Oregon decided otherwise. 262 Ore. 375, 498 P.2d 757 (1972). We affirm that decision for reasons we found persuasive in United States v. Kras, 409 U.S. 434 (1973).

Appellant Ortwein (who also was receiving social security and an urban renewal allowance) sustained a reduction of approximately $39 per month in his Oregon old-age assistance when his county welfare agency determined that he shared shelter and expenses with another person in a manner that relieved him of some of the costs upon which his original award had been based. [410 U.S. 656, 657] Ortwein appealed to the Oregon Public Welfare Division. The Division conducted a hearing and upheld the county agency’s decision.

Appellant Faubion claimed that certain expenses related to work training under a federal program should have been deducted in calculating her income. 2 Most of these deductions were disallowed, after hearing, by the Public Welfare Division. The disallowance resulted in smaller welfare payments to Faubion over a five-month period. [410 U.S. 656, 658]

Judicial review of these agency decisions is authorized under state law. Ore. Rev. Stat. 183.480 (1971). In cases that are contested, as these were, jurisdiction for judicial review is conferred upon the Oregon Court of Appeals. 183.480 (2). All appellants in civil cases in Oregon pay a $25 filing fee in appellate courts. 21.010 and 21.040 (1971). Each of the present appellants alleged that he was an indigent unable to pay the filing fee; each moved to proceed in forma pauperis in the Oregon Court of Appeals. The motions were denied without opinions. Appellants then petitioned the Supreme Court of Oregon for an alternative writ of mandamus ordering the Court of Appeals to accept appellants’ cases without payment of fees. The Supreme Court of Oregon requested supplemental briefs and then issued its opinion denying the petition for mandamus. 262 Ore. 375, 498 P.2d 757 (1972). From this denial the present appeal is taken.


Relying on this Court’s opinion in Boddie v. Connecticut, 401 U.S. 371 (1971), and on the remand-for-reconsideration order in Frederick v. Schwartz, 402 U.S. 937 (1971), 3 appellants contend that the Oregon appellate filing fee, when applied to indigents seeking to appeal an adverse welfare decision, violates the Due Process Clause of the Fourteenth Amendment. In United States v. Kras, 409 U.S. 434 (1973), this Court upheld statutorily imposed bankruptcy filing fees against a constitutional challenge based on Boddie. We emphasized the special nature of the marital relationship and its concomitant associational interests, and noted that they were not affected in that case and that the objective sought by appellant Kras could be obtained through alternative [410 U.S. 656, 659] means that did not require a fee. Boddie, of course, was not concerned with post-hearing review. We now conclude that Kras, rather than Boddie, governs the present appeal, and we emphasize that Frederick was remanded, and not summarily reversed.

A. In Kras, we observed that one’s interest in a bankruptcy discharge “does not rise to the same constitutional level” as one’s inability to dissolve his marriage except through the courts. 409 U.S., at 445 . In this case, appellants seek increased welfare payments. This interest, like that of Kras, has far less constitutional significance than the interest of the Boddie appellants. Compare Dandridge v. Williams, 397 U.S. 471 (1970), and Richardson v. Belcher, 404 U.S. 78 (1971), with Loving v. Virginia, 388 U.S. 1 (1967); Skinner v. Oklahoma, 316 U.S. 535 (1942); Griswold v. Connecticut, 381 U.S. 479 (1965), and Eisenstadt v. Baird, 405 U.S. 438 (1972). Each of the present appellants has received an agency hearing at which it was determined that the minimum level of payments authorized by law was being provided. As in Kras, we see “no fundamental interest that is gained or lost depending on the availability” of the relief sought by appellants. 409 U.S., at 445 .

B. In Kras, the Court also stressed the existence of alternatives, not conditioned on the payment of the fees, to the judicial remedy. Id., at 446. The Court has held that procedural due process requires that a welfare recipient be given a pretermination evidentiary hearing. Goldberg v. Kelly, 397 U.S. 254, 264 , 266-271 (1970). These appellants have had hearings. 4 The [410 U.S. 656, 660] hearings provide a procedure, not conditioned on payment of any fee, through which appellants have been able to seek redress. This Court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system. McKane v. Durston, 153 U.S. 684, 687 (1894); see Griffin v. Illinois, 351 U.S. 12, 18 (1956); District of Columbia v. Clawans, 300 U.S. 617, 627 (1937); Lindsey v. Normet, 405 U.S. 56, 77 (1972). Under the facts of this case, appellants were not denied due process. 5

Last modified: 2022-12-27 12:56
Case internal grade: A | Case internal status: OK |
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