GLONA v. AMERICAN GUARANTEE CO.

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Argument of Mr.chief Justice Warren

Mr.chief Justice Warren: Number 639, Minnie Brade Glona, Petitioner, versus American Guarantee of Liability Insurance Company, et al.

Mr.Normann, I think you were conducting your argument, were you not?

You may proceed now.

Argument of David R. Normann

Mr. David R. Normann: May it please the Court.

Subsequent to yesterday's adjournment, I realized that while in our case and in the previous case, we have been discussing Article 2315 of the Louisiana Civil Code which is our Tort Law and provides for our wrongful death statute that we had not as yet read it to the Court and I think it might be helpful, it's not very long, if I read it.

It provides as follows; every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

The right to recover damages to property caused by an offense or quasi-offense is a property right which on the death of the obligees inherited by his legal instituted or irregular as subject to the community rights of the surviving spouse.

The right to recover all other damages caused by an offense or quasi-offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of one, the surviving spouse and child or children of the deceased or either such spouse or such child or children; Two, the surviving father and mother of the deceased or either of them if he left no spouse or child surviving; And three, the surviving brothers and sisters of the deceased or any of them if he left no spouse child or parents survived.

The survivors in whose favor this right of action survives may also recover for damages which they sustained through the wrongful death of the deceased.

A right to recover damages under the provisions of this paragraph is a property right which on the death of the survivor in whose favor the right of action survive is inherited by his legal instituted or irregular as whether suit has been instituted thereon by the survivor or not.

As used in this Article, the words “child, brother, sister, father, and mother” include a child, brother, sister, father and mother by adoption respectively.

As I say, that is the basis for all Louisiana Tort Law as well as our wrongful death statute.

I feel satisfied that the Court recognizes that this case does not in any way involved the racial issue notwithstanding the fact that it was mentioned in my opponent's brief.

Consequently, it seems that the question with which the Court is presented is this, has Louisiana in classifying legitimates and illegitimates acted reasonably and in accord with the -- a legitimate purpose of its statutes so as not to offend the Fourteenth Amendment.

First, I submit of course that we have acted reasonably for these four reasons.

One, Louisiana has exercised its legal right to legislate in areas which affect the health, morals and general welfare of its citizens.

Two, most certainly the state has an interest in maintaining the sanctity of legitimate relationships as produced through lawful marriage.

Third, Louisiana exercises its right to legislate so as to preserve the family unit.

And fourth, Louisiana has enacted specific and very liberal legislation to permit the legitimation of illegitimates.

Thereby conferring on them all rights enjoyed by legitimates.Discussing this briefly in the order mentioned that is first, the right to legislate in areas affecting health, morals and general welfare.

This Court has recognized in sanction the right of a state to enact such laws including the right to legislate of the area of sexual conduct.

It was so stated in McLaughlin versus State of Florida.

The Federal Government in all of the states had exercised a right.

Hence, the Department of Public Welfare of United States Government and the ordinance is the smallest township regulating and seeking to control such things as tuberculosis, venereal decease.

All operate in the same area and all of these we submit are entirely constitutional.

The criminal statutes punishing illicit and unnatural sexual conduct are also proper examples.

The sanctity of maintaining legitimate relationships through lawful marriage while bearing from State to State, every State in the union exercises his right.

And I don't believe anyone would seriously question the right or indeed the duty of the State to do so.Legislation designed to preserve a family unit.

Perhaps this Court's holding in the case of Murphy versus Ramsey, states it most delinquently.

The Court held certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, and that would seeks to establish it on the basis of the idea of the family has consisting in and springing from the union for life of one man and one woman in the holy state of matrimony, the sure foundation of all that it is stable and noble in our civilization; and finally, the legislation by the State of Louisiana to allow the legitimation of illegitimates.

Here, we respectfully submit Louisiana has gone quite far and perhaps has excelled.

The history of our state's law has been one of constinent -- constant broadening of this concept.

Thus, Article 198 of our Civil Code provides children born out of marriage except those who are born from his ancestors' connection are legitimated by the subsequent marriage of the father and mother.

Whenever the latter have formally or informally acknowledge them for their children either before or after the marriage.

As I mentioned yesterday by 1948 Amendment, this Article includes adulterous bastards.

Article 200 of our Civil Code, provides an unnatural father or mother may legitimate his or her natural children by a Notarial Act signed by two witnesses declaring the intention of a parent to legitimate such child or children.

Article 214 --

Justice Potter Stewart: Either one as a single parent can do that?

Mr. David R. Normann: Yes, sir.

Justice Potter Stewart: Is that right?

Mr. David R. Normann: Yes.

Justice Potter Stewart: Either the father or the mother?

Mr. David R. Normann: Either the father or the mother.

Article 214, provides for adoption and the rights pursuant that too, and puts adopted children on the same basis as legitimates.

Adopted children are included as forced as under Louisiana succession laws, in the Levy case.

The Louisiana doctrine of forced heirship I believe was explained to the Court.

Louisiana revised statute 9391 provides the authority for natural mothers and fathers to adopt their natural children by notarial acts.

We thus submit that Louisiana has acted more than reasonably in the classification which is here under attack.

Justice Abe Fortas: Have you had an opportunity to go into the history of this provision of Louisiana's treatment of illegitimate children?

I understand that the antecedents of this statute go pretty far back in Louisiana's history, is that so?

Mr. David R. Normann: Yes.

I --

Justice Abe Fortas: You know what date when you first appeared in Louisiana law?

Mr. David R. Normann: And we're -- are you speaking now of Article 2315, the tort statute?

Justice Abe Fortas: Yes.

Mr. David R. Normann: 1907 was the first holding that a mother in the same situation we have here Your Honors, a mother was suing for the death of her child, Lynch versus Knoop is the case.

Justice Abe Fortas: But the state was that -- the statute was on the books before then or what was --

Mr. David R. Normann: Oh, yes.

Yes, Article 2315 was on the books long before then.

I think originally in the Code 1825.

It has been amended seven times since it was first enacted and I believe Mr.Fortas has made the point yesterday that in all of the amendments.

Well, he described the amendments I believe pointing out that there was no --

Justice Abe Fortas: Is there anything -- is there anything at all in the history of the statute that indicates its original purpose?

Mr. David R. Normann: Well, the next point --

Justice Abe Fortas: Original -- its original purpose was property purpose, was it not?

Mr. David R. Normann: The next point --

Justice Abe Fortas: It was not a moral purpose.

It was a property purpose.

Mr. David R. Normann: Well, it is as I said the basis of our Tort Law.

It provides for wrongful death and it is --

Justice Abe Fortas: I don't mean that part of it.

I mean to say the distinction between illegitimate and legitimate children in 2315 and elsewhere in Louisiana law?

Mr. David R. Normann: Well, --

Justice Abe Fortas: Wasn't it originally a property distinction designed to keep a property within the channels of legitimacy that is to say the order recognized to establish family pattern.

Although, there might be other sort of quasi-family arrangements except in the legal sense apart from the legitimate family arrangement.

Mr. David R. Normann: Yes, I think that's fair state --

Justice Abe Fortas: It was a property arrangement –-

Mr. David R. Normann: Yes.

Justice Abe Fortas: -- not originally an arrangement designed to protect public morals?

Mr. David R. Normann: That's right.

And I think -- I think that's fair statement to protect the claims of legitimates against those of illegitimates.

Justice Potter Stewart: Except the statute doesn't say, it doesn't make any distinction at all (Voice Overlap) --

Mr. David R. Normann: That's correct.

I was just going to say, the statute you calling already (Voice Overlap) --

Justice Potter Stewart: -- as a matter state law beginning 1907 under the 2315?

Mr. David R. Normann: No.

The definition section of a statute -- of our Code, Article 3556 to find children as meet whatever used in the Code --

Justice Potter Stewart: Yes, yes.

Mr. David R. Normann: -- as meaning legitimate children.

Justice Potter Stewart: Yes.

Justice Hugo L. Black: I do not understand how you could answer the question of Brother Fortas as you did.

Would you -- what do you say and if the children the people were not interested in the moral idea of having children legitimate and of doing something to block it (Voice Overlap)?

Mr. David R. Normann: I didn't --

Justice Hugo L. Black: Such as relationships where there is no marriage?

Mr. David R. Normann: I didn't mean to imply that.

Justice Hugo L. Black: You said no moral compose, no moral motive?

I don't know how you could deal with that?

Mr. David R. Normann: Well, if I did, I stand corrected.

I didn't mean to say that.

I think that the statute has simple purposes.

I think that is one of the most certain I have so argued just a moment ago.

But I do think that an important purpose of this statute originally was to protect property rights as the Court has also observed.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: What --

Justice Thurgood Marshall: Mr.Normann --

Mr.chief Justice Warren: -- what state interest would there be in protecting a tort reserve who has killed a child from compensating the mother for the loss of that child even though the child happened to be illegitimate?

Rebuttal of David R. Normann

Mr. David R. Normann: I would answer that Your Honor by saying, I don't think the interest to the State is in protecting the tortfeasor.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Well, who is it protecting in this case?

Rebuttal of David R. Normann

Mr. David R. Normann: Who is it protecting in this case?

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Precisely.

Rebuttal of David R. Normann

Mr. David R. Normann: Well, I think it's protecting the right of legitimates against illegitimates.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: No, it's protecting -- it's protecting this insurance company, isn't it?

Rebuttal of David R. Normann

Mr. David R. Normann: Not necessary ---

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Against liability for having killed his child?

Rebuttal of David R. Normann

Mr. David R. Normann: Well, as the Court observed, yesterday, there maybe in this instance no legitimate heirs and in that instance most certainly the tortfeasor goes free, so to speak.

But I certainly don't think that was the intention of the statute to protect the tortfeasor.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Well, then why do you give that interpretation that wasn't the intention?

Rebuttal of David R. Normann

Mr. David R. Normann: I don't believe I did give it an interpretation, Your Honor.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: I beg your pardon.

Rebuttal of David R. Normann

Mr. David R. Normann: I don't believe I did give it --

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: The interpretation of your statute?

Rebuttal of David R. Normann

Mr. David R. Normann: I didn't interpret it as a means to protecting a tortfeasor.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: That's what you're arguing here for?

Rebuttal of David R. Normann

Mr. David R. Normann: No.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: You represent the insurance carrier for the tortfeasor, do you not?

Rebuttal of David R. Normann

Mr. David R. Normann: Correct.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: And you want to absolve him from any liability even though his policy holder may have killed his child?

Rebuttal of David R. Normann

Mr. David R. Normann: Yes.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: And you say notwithstanding the fact that he did it in a tortuous way that the mother is being deprived of any compensation from him not from a state.

Rebuttal of David R. Normann

Mr. David R. Normann: Yes.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: One thing if a state goes wants protect the legitimacy and to protect families.

But it seems to me that you got another issue here, if you're trying to protect the tortfeasor for having killed the child.

Rebuttal of David R. Normann

Mr. David R. Normann: Well, I think that leads though to what was the purpose of the statute, as I say, I don't consider that the purpose of the statute is to protect the tortfeasor.

For example --

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: You also told Justice Fortas that it wasn't for any moral purpose that this was done.

Rebuttal of David R. Normann

Mr. David R. Normann: No, I think if I said that I was misunderstood.

I stated it incorrectly then.

I say that it is -- I argued a moment ago, that there is a moral purpose in the statute.

I simply acknowledge that there is also a strong motivation to protect property rights.

But I --

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Whose property rights they want to protect in the case of tortfeasor who kills the child?

Rebuttal of David R. Normann

Mr. David R. Normann: The rights of legitimates.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: I beg your pardon.

Rebuttal of David R. Normann

Mr. David R. Normann: The rights of legitimates.

The property rights of legitimates as against illegitimates.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: And to take away all the rights of illegitimacy?

Rebuttal of David R. Normann

Mr. David R. Normann: No, not to take away all the right to illegitimacy but if the child remains illegitimate then under the rule --

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: I beg your pardon.

Rebuttal of David R. Normann

Mr. David R. Normann: If the child is in fact illegitimate and has not been legitimated under one of the sections that I just read then that child has no standing or in this case that parent has no standing.

I think --

Justice Thurgood Marshall: Mr.Normann, excuse me.

When was 3536, the definitional section passed?

Mr. David R. Normann: I am not sure Your Honor and I know when it was passed.

I have with me the Code with the amendments through 1920.

It appears there and with a footnote which describes the previous article of the Code of 1870, so I can say that it was at least in the 1870 Code.

Justice Thurgood Marshall: Thank you.

Mr. David R. Normann: I might say, Your Honor, that with respect to protecting the idea of protecting the rights of the wrong doer -- protecting the wrong doing not the rights but from his culpable act.

It seems to me that -- I mentioned this just briefly yesterday before we adjourned, it seems to me that if the statute is unconstitutional in its classification coed legitimates and illegitimates then it must also be unconstitutional in its classification coed children and spouse first, parents next, brothers and sisters third.

Now, if I am killed wrongfully, my parents are denied a cause of action for my death because of the existence of my children.

Under the reasoning of petitioners, it would seem to me the same argument could be made that my parents are discriminated against.

Now, why does the law --

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: You're not -- you're not dealing here with parents the relationship of parents and child or any family relationship.

You're not here dealing with any relationship between the state and this child.

You are here arguing as a representative of an insurance company of one of its clients who has killed the child and used this statute for the purpose of relieving your client of any responsibility for it.

That's your purpose here not to defend the state's right to deal with the family problem, isn't that correct?

Rebuttal of David R. Normann

Mr. David R. Normann: I must respectfully disagree, Your Honor.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: All right.

Rebuttal of David R. Normann

Mr. David R. Normann: Of course, I am defending the rights of my client under the law --

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: You're representing the insurance company, aren't you?

Rebuttal of David R. Normann

Mr. David R. Normann: Surely.

Most certainly and I'm defending --

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Not the state?

Rebuttal of David R. Normann

Mr. David R. Normann: No.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Or his rights?

Rebuttal of David R. Normann

Mr. David R. Normann: But the state's law is under attack here.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: That is true.

Rebuttal of David R. Normann

Mr. David R. Normann: And I'm defending the state's law.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: But you are interpreting family law for the purpose of preventing liability for tortious acts?

Rebuttal of David R. Normann

Mr. David R. Normann: Oh, yes.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: As I understand it, the -- your qualm says that these laws do not cover the torts of this kind.

They are not designed for that purpose.

Rebuttal of David R. Normann

Mr. David R. Normann: Does not cover the right of action or cause of action --

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: That's right.

Rebuttal of David R. Normann

Mr. David R. Normann: -- of illegitimates, that's correct.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Yes.

Rebuttal of David R. Normann

Mr. David R. Normann: Yes, sir.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: But it seems so taken the whole term that you're defending the honor and morals -- morals of the state in depriving a mother of a child for the tortious death of her child.

Rebuttal of David R. Normann

Mr. David R. Normann: No, not really, Your Honor.

What I am trying to do is illustrate to the Court the fact that Louisiana's wrongful death statute is tied in with Louisiana's laws of inheritance.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Now, where did -- now, what specific act do you --

Rebuttal of David R. Normann

Mr. David R. Normann: Alright, and the reason --

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: -- come to (Voice Overlap)?

Rebuttal of David R. Normann

Mr. David R. Normann: And may I say this, the reason that I do that is because as I understand the law so as not to offend the Fourteenth Amendment and the right to classify under the Fourteenth Amendment, we must show a reasonable purpose in doing this, in denying this right to illegitimates.

Now, I say this is tied up with the law of inheritance in Louisiana.

Hence, the illustration I gave a moment ago.

Louisiana also classifies in its hierarchy who has the cause of action even among legitimates.

My children exclude my parents for my wrongful death.

Justice Abe Fortas: Now, if you know make any distinction as among your children.

Mr. David R. Normann: True.

Justice Abe Fortas: And that's a problem here.

As a matter of fact, I haven't -- it's occurred that and it's perfectly possible to suggest that the purpose of these statutes making this distinction against illegitimate children is profoundly immoral, at least choosing the conventional terminology, because what they do is to insolate the male member or head of the household from the consequences of immoral conduct outside of the family structure that is to say the father of the household can create another set of children without any danger that the other set of children will have competing claims on the family estate.

The morality of this -- these statutes particularly when viewed in light of their history and as I understand it there is not quite as simple and clear as perhaps appears on the circus, would you disagree with that?

That is to say you take and originally these statutes were passed to protect the legitimate family, protect the property interest of the legitimate family.

And to some extent, they encourage if one wants to indulge in that kind of reasoning the head of the household to go out and establish another family elsewhere.

And he didn't have to have any fear at all that the children of the -- to use a Spanish expression the “casa media” with the assert competing claims as against the children of the original -- of the legitimate family.

Mr. David R. Normann: Well, I would say, Your Honor that it's most difficult it seems to me for the law to cover every conceivable circumstance.

I think -- I personally believe that the Louisiana law is sound in this area.

Incidentally, under our law, he is not entirely free of all responsibility.

I didn't go into these code or articles because I don't really feel that they're really relevant to the issues but for example, the culpable man in that instance, in that example would owe support to these illegitimate children but it is true that our law would protect the rights of the legitimates against the claim of the illegitimates.

But I --

Justice Abe Fortas: Well, it is relevant.

What we're talking about here it's maybe irrelevant because what you have to do as you have said is to defend this as a reasonable classification.

Mr. David R. Normann: Yes, sir.

Justice Abe Fortas: And that go always involves the question of the purpose and whether it is a -- and what is the real purpose of the classification.

Mr. David R. Normann: Yes, and that is why I am trying to persuade the Court that this is so intrinsically tied in with our laws of inheritance and that is why I use the example of the classifications within Article 2315 themselves.

Why does the law so classify?

Obviously, because our law recognizes the obligation in the example I used to myself to support my children and Louisiana's wrongful death statute follows right along and does the same thing.

Justice Byron R. White: Well, would you –- would you have same response -- I suppose you make the same argument if the plaintiff is the -- is an illegitimate brother of the illegitimate child?

Mr. David R. Normann: If he is illegitimate.

This would be an illegitimate relationship.

Justice Byron R. White: Well, yes.

Mr. David R. Normann: Yes.

Justice Byron R. White: So, it really is a -- let's just say there's no cause of action for killing an illegitimate person?

Mr. David R. Normann: That's correct.

That is the law.

Justice Byron R. White: That's the net of it?

Mr. David R. Normann: That's right.

Justice Byron R. White: It isn't just aimed at -- it isn't aim at disentitling mothers of illegitimate children.

Mr. David R. Normann: No.

There's no cause of action for the death of the illegitimate.

Justice Potter Stewart: Well, except the illegitimate person himself had a wife, a legitimate wife or children is a cause of action for his death.

Mr. David R. Normann: Yes.

Justice Abe Fortas: But what -- what exactly –

Justice Potter Stewart: Not quite the way Justice White --

Mr. David R. Normann: Yes.

The spouse would have a cause of action.

Justice Byron R. White: Why would that be so?

Mr. David R. Normann: Because he -- the -- that wouldn't be if it's a valid marriage that would be perfectly all right; the wife under 2315 has a cause of action for this death.

Justice Byron R. White: Do you think the brother of an illegitimate really isn't a brother, is that it?

Mr. David R. Normann: Well, if he is --

Justice Byron R. White: Did you say that --

Mr. David R. Normann: -- the illegitimate's mother and father were not married and produced another child from that same union.

I don't consider that the collaterals are legitimate coed each other.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Well, in that result of this case, if you win, is that not only your insurance company but everyone in the State of Louisiana can kill an illegitimate child and suffer no responsibility financial responsibility of any kind to anyone?

Rebuttal of David R. Normann

Mr. David R. Normann: Well, the law does not provide that if they are legitimate relation you may claim this.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: The answer is yes.

The answer is yes, is it not?

Rebuttal of David R. Normann

Mr. David R. Normann: No, I don't believe so.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Alright, who -- who might you be liable to in this case, if you win?

Rebuttal of David R. Normann

Mr. David R. Normann: Under the facts of this case as established by the pleadings remember that this came up on summary judgment.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Well, whatever way it come up is there any respond -- financial responsibility to any one if you win?

Rebuttal of David R. Normann

Mr. David R. Normann: In the absence of a legal relationship, no sir.

There is none.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Well, I'm taking the facts as they are here?

Rebuttal of David R. Normann

Mr. David R. Normann: But I must -- I only know the facts as they were alleged in the petition Your Honor because this came up on summary judgment.

The family status of this decedent was not developed because it only came up beyond his mother who asserted the cause of action.

Justice Byron R. White: But if you had a wife --

Mr. David R. Normann: If he had a lawful wife she would have the cause of action and we would not escape liability.

Justice Hugo L. Black: Do you think if Louisiana to make lawful loss has the power to determine what it believes to be moral or instead of that if this Court has the right to determine its laws then an unconstitutional because the Court believes it's immoral?

Mr. David R. Normann: I would say that Louisiana has the right to assert in its legislation, what it believes is proper to protect the morals of its people subject of --

Justice Hugo L. Black: Is that a question of policy?

Mr. David R. Normann: -- subject of course to review by this Court.

I certainly recognize that this Court has the right to --

Justice Hugo L. Black: Under Marbury and Madison?

Mr. David R. Normann: Yes, sir, I think so.

Justice Hugo L. Black: So far as the Marbury and Madison goes?

Mr. David R. Normann: Yes, I would concede that.

Justice Abe Fortas: Well, it couldn't very well to say that no blue eyed children can inherit, could it

Mr. David R. Normann: No, because it obviously has no reasonable purpose precisely.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: There's a black eyed children?

Rebuttal of David R. Normann

Mr. David R. Normann: No, sir.

I'm afraid that would be just as offensive.

I believe my time is up.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Very well, Mr.Normann.

Mr.Wessel.

Argument of William F. Wessel

Mr. William F. Wessel: Mr.Chief Justice, may it please the Court.

I would like to point out that in the event a child, a father or a mother has legitimate children and illegitimate children, he can never legitimate those children in the State of Louisiana.

He can never legitimate the illegitimate children in the State of Louisiana.

Number two, in the appendix to this --

Justice Potter Stewart: I misunderstood you, sir.

Mr. William F. Wessel: If the -- if the father or the mother has legitimate children and illegitimate children neither may ever legitimate the illegitimate --

Justice Byron R. White: Why?

Mr. William F. Wessel: -- as long --

Justice Potter Stewart: Why?

Mr. William F. Wessel: -- as they have legitimate children.

Justice Potter Stewart: Why?

Mr. William F. Wessel: Because under the -- insofar as forced heirship and the rules of inheritance are concerned because you cannot deprive the forced heirs of any property or benefit of the law to the -- or you cannot grant to the illegitimate heir where you were deprive to the legitimate.

For example --

Justice Byron R. White: But they could adopt?

Mr. William F. Wessel: They could adopt, that is correct, Mr.Justice.

Justice Potter Stewart: Well, I --

Mr. William F. Wessel: Then you can adopt but not legitimate.

There is a distinction in Louisiana law.

There is legitimation, acknowledgement and adoption.

Justice Byron R. White: Well, yes but (Voice Overlap).

Mr. William F. Wessel: That is correct.

That is correct.

Justice Potter Stewart: But from the point of view of this statute, couldn't the mother or father of legitimate children legitimate illegitimate children to the point of this statute that we're talking about?

Mr. William F. Wessel: From the point of view, if they have legitimate children they may not -- it would seem that question is not exactly been decided but it would seem cannot be done in view of the fact if the Court would take this property viewpoint or this inheritance viewpoint of 2315.

It would seem that the same reasoning would apply.

Justice Potter Stewart: Well, --

Mr. William F. Wessel: The book -- excuse me Mr.Justice.

Justice Potter Stewart: Louisiana does provide a procedure, a very simple procedure, for a parent to legitimate his illegitimate child.

That's the notarial act as I understood.

Mr. William F. Wessel: Yes, if he has no legitimate children.

If he has no legitimate --

Justice Potter Stewart: But the -- are you telling us that under this statute and that that such a legitimate married child would that Louisiana has held that that person has no right under --

Mr. William F. Wessel: Would not be recognized, yes Mr.Justice.

Justice Potter Stewart: What?

What case is that?

Mr. William F. Wessel: I don't have the case Mr.Justice, but that is --

Justice Potter Stewart: Well, that's a contrary what we've been told during this whole argument --

Mr. William F. Wessel: That's the rule of forced heirship.

Justice Potter Stewart: But we're talking about this tort statute.

Mr. William F. Wessel: As far as 2315, I don't think the case has been decided on that question but insofar as it would be analogized to the forced heirship that is the position on legitimation not on adoption.

Adoption can be done of course.

The -- to answer the question further, the Civil Code is broken up into three books.

The first book treats the persons.

The second book treats of things and the mode of acquiring thing or the different modifications of ownership.

The third book treats of the modes of acquiring things.

The first book on persons does not contain 2315.

The second book on the modifications of ownership does not contain 2315 it is in the acquisition of things and conventional obligations in quasi-contract and offenses.

The third book which sets up the 2315.

The first title carries the whole Succession Law of Louisiana.

The second title of the book three contains the whole Donation Law of Louisiana.

The third title of the book three contains all of the Obligation Law of Louisiana.

The fourth title is the Conventional Obligations.

And the fifth title is the Quasi-Contract and the Offenses Law in the Louisiana.

Successions, is in Title 1 and it starts with Article 871 to 1466 and that is the end of the Law of Successions.

Article 2315 is in the fifth title and does not purport to be an inheritance statute.

It does not purport to regulate forced heir or forced heirship and I submit has no relation at all to forced heirship.

They never intended by legislation --

Justice Potter Stewart: Well, in that -- in that case, then I should think if you're right then a parent of a legitimate children could legitimate illegitimates for the purpose of this statute if it has nothing to do with forced heirship.

Mr. William F. Wessel: Yes, that's by the same token, the reason for classifying out or fencing out illegitimates in 2315 is not the forced heirship argument.

No Court has said that that was the reason.

Only one Court mentioned the reason for fencing out illegitimates and that was the Levy Court of Appeals and Louisiana Court of Appeals and it said it was general morals and it discourages bringing children in the world out of wedlock and that was a hundred years --

Justice Potter Stewart: That's the 1970 decision rested?

Mr. William F. Wessel: Under 1970?

Justice Potter Stewart: The first one?

Mr. William F. Wessel: The Court there in Lynch v. Knoop considered the case as -- considered the statute as sui generis.

It was in derogation of common right, common law and therefore it had to be strictly construed the idea that what was contained in the statute automatically excluded everything else.

And no reference was made to the definitional article on children.

But there is no definition in the definitional article on parents or father or mother in Article 3556.

There is a definition of children where children are considered to be legitimate children were used in the Code but no definition of mother or father or parents.

But the Lynch v. Knoop case was decided strictly on the idea of sui generis of the case being -- of the statute being sui generis.

Justice Potter Stewart: What's that mean in appellant?

Mr. William F. Wessel: Being in derogation of common right that it was not -- the right of recovery for wrongful death was not afforded to the population or the citizenry of Louisiana as part of its general law and it had to be enacted by statute, and therefore the statute was in derogation of common law had to be construed as of itself in some class.

That's my understanding, Your Honor.

Justice William J. Brennan: Would you say that things now we're going to use relation law of forced heirship?

Mr. William F. Wessel: I submit that -- yes, Your Honor.

I submit that.

The -- I think -- it's pointed out on my brief that all wrongful death statutes would pass for compensatory purposes.

And to treat a compensatory act in a retrogressive fashion rather than look to other compensatory acts in the state is to treat the legislation as if in a frustrating manner.

Thank you, Your Honors.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Very well.