Cohen v. Board of Supervisors

Opinion

DEVINE, P. J.

This is an appeal from a judgment sustaining defendants’ demurrer to plaintiffs’ petition for a writ of mandate and complaint for declaratory relief. Plaintiffs brought suit on behalf of themselves and others similarly situated who are unable to proceed in California courts with their causes of action for dissolution of marriage or declaration of nullity because they lack the funds necessary to pay the costs for service of process on their spouses. The trial court permitted each of the plaintiffs to proceed in forma pauperis in their matrimonial actions, thereby avoiding filing fees. Plaintiffs, however, were unable to pay the costs for service by publication

[238]

which, they allege, was necessary because their spouses could not be found for personal service. They sought a writ of mandate commanding defendants Board of Supervisors of Alameda County and the Controller of the State of California to pay the costs of publication, and they prayed for declaratory relief. Demurrer to both causes of action was sustained, and writ of mandate was denied.

Subsequent to the time the parties filed their respective briefs in this case, the United States Supreme Court decided the case of

Boddie

v.

Connecticut,

401 U.S. 371 [28 L.Ed.2d 113, 91 S.Ct. 780]. There the Supreme Court held that due process of law prohibits a state from denying, solely because of inability to pay court fees and costs for service of process, access to its courts to indigents who, in good faith, seek judicial dissolution of their marriages. In

Boddie,

a deposit with the sheriff of $45 as costs had been required by the statutes of Connecticut, plus fees for service of summons which, in the case of publication, would run as high as $40 or $50. In California, arrangements for publication are not made by a public officer, but by the litigants, usually, of course, by their counsel. In

Boddie,