ROE v. NORTON

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Argument of Frank Cochran

Chief Justice Warren E. Burger: We'll hear arguments next in 73-6033, Sharon Roe against Norton.

Mr. Cochran you may proceed whenever you're ready.

Mr. Frank Cochran: Mr. Chief Justice, may it please the Court.

The issue in this case is the validity of a Connecticut statute under which mothers of illegitimate children may be forced to name the father to initiate and prosecute a paternity action to judgment of whether or not they believe it's in the child's best interest underpaying of up to a year in jail or fine of up to $200.00.

Chief Justice Warren E. Burger: In Connecticut, may the state bring the action on its own Mr. Cochran, independent of the wishes or the actions of the mother?

Mr. Frank Cochran: The state has a power under a separate section of the general statutes to initiate a paternity action in its own behalf for any child which is supported by state welfare, yes.

That statute is not an issue here, the issue here is the requirement that the mother disclosed the name of the father in the first instance and subsequently initiate and prosecute paternity action.

Chief Justice Warren E. Burger: What are you suggesting that the existence of that other statute has no bearing on the problems, the issues of this case?

Mr. Frank Cochran: Oh, I think it has some bearing.

I merely meant to point out that decision adverse to the statute in this case does not strike down that interest of the state.

The interest -- the mothers are attempting to protect is their own right of privacy, not the state's interest once it has the name.

This statute is applicable irregardless of the actual interest of the mothers or the actual interest of the children and in the record there are affidavits for whom I believe two mothers who in fact had been beaten by the fathers before.

There was one case in which there was a possible incestuous parentage and also in which the actual paternity couldn't be determined with certainty.

There are real reasons why the interests of mothers and/or children are opposed to bringing actions in many cases.

We submit that the questions involved in this case --

Justice William J. Brennan: How come were all of the mothers involved here, AFDC was against?

Mr. Frank Cochran: Yes, they were.

Justice William J. Brennan: Is this a class action on behalf of AFDC or something?

Mr. Frank Cochran: Yes, it is.

Justice William J. Brennan: And it was certified as such?

Mr. Frank Cochran: It was certified by the District Court.

Justice William J. Brennan: I -- I take it then, that may make the new federal statute particularly pertinent, may it?

Mr. Frank Cochran: Yes, the new federal statute does have pertinency here and I was going to get to that in just a second.

Justice William J. Brennan: Well don't it isn't your own.

Mr. Frank Cochran: The -- because one of the specific classes of women to whom the statute is applicable is AFDC mothers.

The Social Security Act is relevant to this case.

Now Congress --

Justice William J. Brennan: Well, do you suggest these mothers have standing since they're all AFDC recipients and only such to bring this attack on the statute on behalf of non-AFDC recipients?

Mr. Frank Cochran: The District Court did not find that the appellants represented any other subclass subject to the statute and we have not challenged that.

Justice William J. Brennan: So, then as it comes to us and confine to the framework of AFDC recipients.

Mr. Frank Cochran: That's correct.

Justice William J. Brennan: Right.

Justice William H. Rehnquist: But the statute does apply to none AFDC recipients.

Mr. Frank Cochran: The statute on its face imposes an obligation on all mothers of illegitimate children, however there is enforcement of the statute and a specific mechanism for enforcement setup for only three subclasses which include mothers who are an AFDC, mothers receiving town assistance and mothers who for one reason or another are not the guardians of their children or for whom guardians ad litem have been appointed.

The Congress in Public Law 93-647 which was passed on the last day of the past session of Congress did enact extensive amendments to the Social Security Act including a major part concerning child support.

The basic thrust of that part was to strengthen the enforcement of child support obligations around the country as part of the child support program which will be mandatory on the states as part of their AFDC programs.

Congress required that states give an incentive payment to cooperating parents of 40% of the first $50.00 recovered from an absent parent in support.

It also provided a sanction, termination of the mothers welfare benefits made very clear that it was not sanctioning termination of the child's welfare benefits by providing that those continue in the form of protective payments which had to go to the child.

In the course of its deliberations, Congress rejected a Bill as 1842 which would have made it a federal misdemeanor to refuse to cooperate with the welfare departments.

That is the equivalent to what Connecticut does here.

As I say this was rejected by the Senate Finance Committee and I think that the legislative history clearly shows that Congress in passing the provisions which it did pass set the limits of the powers of the state to infringe on the fundamental purposes of AFDC in pursuing its own financial interest as those purpose being to safeguard the best interest of children by providing support for them in their own homes and to maintain and strengthen family life.

I think in passing the provisions which it passed Congress clearly indicated that no other and certainly no more severe sanctions could be employed in this regard.

Furthermore, the Connecticut statute does, it seems to us clearly undermine the general requirement of regulations of the Department of Health Education and Welfare that methods of administration used in the AFDC program not undermine the privacy and dignity of recipients.

Justice William J. Brennan: It's -- I take it none of these named appellants has been receiving AFDC benefits by force of this Connecticut statute?

Mr. Frank Cochran: No, that's not correct.

They have been receiving benefits.

Justice William J. Brennan: But by force stays or what?

Mr. Frank Cochran: No, this statute does not terminate them from receded benefits.

It provides only the sanctions of imprisonment or fine as a contempt.

It does not provide for any sanction of termination that is indeed one of the -- if not the major point we're trying to make here.

Justice William J. Brennan: Well -- well have they in fact in subject to contempt proceedings?

Mr. Frank Cochran: The two named appellants here have been subject to contempt proceedings which are pending in state court and have been stayed for a considerable period of time.

Justice William J. Brennan: But they have not actually resulted in contempt judgments.

Mr. Frank Cochran: No, they have not.

Justice William H. Rehnquist: Did they -- were those contempt proceedings initiated before or after you brought this action in the District Court?

Mr. Frank Cochran: They were initiated before.

At that point, we filed motions in those proceedings to raise the various constitutional issues which we have raised here and the Court determined to stay its hand, simultaneously filed the federal action.

I believe the Court determined to stay its hand pending determination by the District Court of the complaint in this case.

Justice Potter Stewart: Isn't that kind of getting the cart before the horse, why -- the first court to acquire jurisdiction I gather where the state courts in the contempt proceedings, right?

Mr. Frank Cochran: That's correct.

Justice Potter Stewart: Where you interpose your constitutional and statutory defenses, right?

Mr. Frank Cochran: That's correct and the state court --

Justice Potter Stewart: And they said in the proceedings of why shouldn't that litigation have gone to its conclusion.

Mr. Frank Cochran: Well, the state courts indicated unwillingness --

Justice Potter Stewart: And the federal court states its hand.

Mr. Frank Cochran: The state court indicated its unwillingness to decide constitutional issues, it's about in the lowest federal court -- excuse me, the lowest state court.

At that time the Circuit Court, they've subsequently being transferred to the Court of Common Pleas that there is a doctrine in Connecticut of avoiding constitutional adjudications and --

Justice William J. Brennan: Well, was this the court in --

Mr. Frank Cochran: In --

Justice William J. Brennan: Was this the court's own decision or was this something that you asked that the state courts do?

Mr. Frank Cochran: I honestly don't remember that.

We certainly didn't oppose it.

Chief Justice Warren E. Burger: But there's another production about this court and federal court sustaining until states do their -- perform their function.

Mr. Frank Cochran: Well, I would say a couple of things about that.

It certainly is such a doctrine.

It is not -- I would say a favorite doctrine in Civil Rights Act litigation such as this.

It is an exception to --

Justice Byron R. White: It is --

Mr. Frank Cochran: It -- that's true, I'm not disputing that but --

Justice William J. Brennan: Well, this was criminal contempt, wasn't it?

Mr. Frank Cochran: It's not clear what sort of contempt this is.

We initially (Voice Overlap).

Justice William J. Brennan: Is it criminal, was it civil case?

Justice Thurgood Marshall: Did he go to jail?

Mr. Frank Cochran: It was not a criminal case, you can go to jail.

Justice William J. Brennan: For a fixed time?

Mr. Frank Cochran: For a fixed maximum time.

On the other hand the state was of the opinion that it was a civil contempt in the sense that it could be purged anytime and we --

Justice Byron R. White: I thought you said it was sort of like the misdemeanor that the Congress turns on.

Mr. Frank Cochran: I think the sanctions of a year in jail or a fine are similar in that respect.

Justice William J. Brennan: Well -- would it not be a proceeding sufficiently criminal to bring it within the Younger rationale?

Mr. Frank Cochran: It might very well be but I don't Younger applies here for a couple of other reasons.

Notably the state courts stay of its own action and the states failure to raise any such issue here.

I believe I the Broderick case, we have the same situation where the state did not raise any sort of abstention point in the Court.

Justice William J. Brennan: Do you have your doctrine being commonly to the states, the states may waive it if they want to.

Mr. Frank Cochran: That's correct.

That's our --

Justice William J. Brennan: Do you say that's what, the state did here?

Mr. Frank Cochran: Well, the state certainly never raised it as into this point raised it at any time.

Justice William J. Brennan: Did the District Court address itself to the problem formally or informally?

Mr. Frank Cochran: I -- It certainly didn't formally, I believe it didn't formally either I have no recollection of --

Justice Thurgood Marshall: Well -- you had two clients in jeopardy?

Mr. Frank Cochran: They are in jeopardy in the sense that the petitions against them are pending at this time and will go forward at some point unless there is a definitive determination.

Justice Thurgood Marshall: Well, as I understand it does not stay.

Mr. Frank Cochran: Their stay --

Justice Thurgood Marshall: But at least it won't go forward unless something else happen.

Mr. Frank Cochran: At this point Mr. Justice Marshall, they are stayed until Friday of this week whether they will be stayed beyond that, I cannot --

Justice Thurgood Marshall: Was that order in -- does it order that the state court has issued until Friday this week?

Mr. Frank Cochran: The state court issued as order I believe it was in December to that effect staying those actions until the 28th of February which is Friday of this week.

Justice Thurgood Marshall: And that's all that it says?

Mr. Frank Cochran: Yes, well that it wasn't all it said, no, it's a pending hearing in this Court.

Obviously, it was aware however that it would not be a decision in this Court for that time.

Justice William J. Brennan: In pending in both courts are they exact same constitutional point.

Mr. Frank Cochran: I would say that they are not really pending in the state court in the sense that the state has declined to adjudicate those issues.

Furthermore, I'd point out that what we're looking for here I think is a declaratory judgment principally, I think it would be followed in the state and I believe that this case is therefore very similar to Steffel against Thompson in which there was a stay in the pending state actions at the time the federal actions were brought and through to the time they were finally decided.

Justice Potter Stewart: You also asked for an injunction.

Mr. Frank Cochran: We did ask for an injunction before, we're not pursuing that further at this time.

Justice William H. Rehnquist: Well, Steffel ultimately turned on the fact that there was no pending proceeding in the state court at the time the District Court action was brought, isn't it?

Because Samuels against Mackell says that the Younger rule applies to a declaratory judgment when there is a pending state proceeding.

Mr. Frank Cochran: I believe the determination in Steffel was that it was not a pending state proceeding because there was a stay in the state court and that is the same situation we have here.

Turning to the perhaps most basic contention which we made below that the Connecticut statute invades the rights of privacy in the sense of autonomist and family self-determination, this Court has recognized such a right as a basic constitutional right in none broken line of cases beginning with Meyer against Nebraska and on through Stanley against Illinois.

Now, the majority opinion below did not --

Chief Justice Warren E. Burger: Doesn't -- doesn't your privacy claim has something to do with the power of the state which you conceded to bring this action independently?Would such an action not invade privacy to exactly the same extent as --

Mr. Frank Cochran: It would not to quite the same extent.

I think it would invade privacy.

Chief Justice Warren E. Burger: Why -- why it wouldn't be here to the same extent except that there wouldn't be any contempt sanction against this particular person, that's really not a privacy aspect, is it?

Mr. Frank Cochran: No, that's not.

There in fact might be a contempt if the mother fail to respond to a subpoena which was issued by the state.

In that situation, that would be a civil contempt.

It would be not governed by the same rules.

Here, we're attempting to safeguard the mother's right to keep secret the identity of the father.

Once that is gone, then the issue becomes somewhat different.

Chief Justice Warren E. Burger: Did you say the right of the mother to safeguard secrecy?

Mr. Frank Cochran: That's correct, for example --

Chief Justice Warren E. Burger: Where does that right originate?

Mr. Frank Cochran: Well, that is the only way that the mother can exercise what we think is the basic right of determining whether it is in the child's best interest and in her best interest to bring a paternity action.

Justice Byron R. White: Could I ask you, that the District Court decided both the statutory the collision issue, the conflict issue and the constitutional question?

Mr. Frank Cochran: That's correct.

Justice Byron R. White: Both against you?

Mr. Frank Cochran: Yes, it did.

Justice Byron R. White: And as I read your briefs here, do you suggest that the conflict issue, the preemption issue or the statute, so-called statutory issue is different than it was because of the amended statute?

Mr. Frank Cochran: It is somewhat different I think it is in fact --

Justice Byron R. White: Well, do you -- well, it's quite an argument that it is different.

Mr. Frank Cochran: Yes.

Justice Byron R. White: And that the Connecticut Act even if it didn't collide with the old act, it collides with the amended one.

Mr. Frank Cochran: I think that's true but I think the amendments --

Justice Byron R. White: Isn't that your argument?

Mr. Frank Cochran: My argument is that it makes it clearer that it conflicted right along and it still does.

Justice Byron R. White: Why should we then ask the District Court to address itself to this question in the first instance because that might dispose the whole case for you and it might help us avoid the constitutional issue like it helped the Connecticut court?

Mr. Frank Cochran: Well, my answer to that is that well of course that could be done.

We would not favor it because there are a large number of these petitions being filed at all times in Connecticut courts and that would involve a considerable risk for -- of exposure for the future to a number of the mothers who have not yet been cited under the statute.

Justice Byron R. White: You mean it would delay things?

Mr. Frank Cochran: It would delay things and there is a second reason.

Justice Byron R. White: That we might decide against you and the District Court might decide for you.

Mr. Frank Cochran: I recognize that possibility.

Justice Byron R. White: This will give you two swings that I had that you see.

Mr. Frank Cochran: I'm not, by any mean saying that this Court cannot or should not if it chooses to remand the case.

The -- I believe that that would be unnecessary and I would point out one further thing.

The District Court did not address in any substantive way, what I think is a basic contention here about the mother's rights to determine the course of the family fortunes and that is a very important point for interpretation of the Social Security Act.

The District Court simply dismissed that without citing authority or really any rationale basis for whatsoever.

The concurring opinion in the District Court on the other hand upheld the mother's right subject to the same sort of limitations which exist on all parental rights.

That is --

Justice Byron R. White: But you do have a friend on the District Court that might insist on serious considerations.

Mr. Frank Cochran: I -- I don't know that I would put it that way but we do have an opinion which agreed with this contention, that's correct.

Justice William J. Brennan: Mr. Cochran, suppose one of the appellants had abandoned any claim to AFDC benefits after this suit was instituted, could you have had the suit dismissed at that time?

Mr. Frank Cochran: I don't believe so.

Justice William J. Brennan: Suppose the mother simply said, well rather than provide the information which the state desires, I will just discontinue making any claim for welfare benefits, what would have happened?

Mr. Frank Cochran: The statute on its face appears to me will apply to that situation because the mother would have been receiving benefits at the time she was cited with the contempt citation.

There are however at least to some instances in which that was not done by the circuit court.

However neither --

Justice William J. Brennan: Has there been any construction by Connecticut courts that would shed in the light as to answer to my question?

Mr. Frank Cochran: There has been construction in the course of some of the hearings under the statute.

There has not been a written opinion, those hearing seem to divide on that issue.

Justice William J. Brennan: But if the statute clearly provided that if the mother abandoned any right to the welfare benefit, she would not be required to respond to these inquiries, would you have any objection constitutionally to that statute?

Mr. Frank Cochran: Yes, I believe we would.

The mothers here and presumably a large number of the class of mothers are recipients of state assistance and would continue to be so.

I think the basic point to make here is that the Department of Health Education and Welfare in interpreting the Social Security Act has uniformly required methods of administration which do not violate the privacy and dignity of welfare recipients, that requirement seems to me to incorporate the constitutional arguments we're making here and to make anything which is a violation of the basic right of -- I see my time is up, of privacy to be a violation of the Social Security Act as well.

In sum, I think that this statute clearly does show a punitive intent towards mothers of illegitimate children by the fact that it does not apply and there's nothing comparable applying to any parents, any other parents of any other class of children.

That's not illegitimate purpose and I do think that the case should be reversed.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Cochran.

Mr. Rosen.

Argument of David N. Rosen

Mr. David N. Rosen: Mr. Chief Justice and may it please the Court.

I want to say one word on the abstention question before I get into the substance of the argument that I'm making here on behalf of the children of appellants which is in addition to the problem that Connecticut lower courts really do have a doctrine that they will decline in circumstances in which constitutional adjudication might seem to be appropriate to make that adjudication and in addition to the second fact that --

Justice Byron R. White: If they -- if they can -- can get the federal court to do it, is that it or --

Mr. David N. Rosen: Well, that's the position taken in this case but in general the courts have to the amusement of Connecticut practitioners as well perhaps as this Court said that they had a restricted or almost nonexistent jurisdiction to decide the merits of constitutional questions.

Justice William J. Brennan: Does this trial court affect as you?

Mr. David N. Rosen: Yes, they do Your Honor.

Justice William J. Brennan: (Voice Overlap) I've heard that in administrative agencies but I never heard that of a court.

Mr. David N. Rosen: I have never heard it of any other court but I have heard it at this Court.

Justice Thurgood Marshall: Well, so that the criminal case of a statute has been construed, you can never convict the man, you just let him state it?

Mr. David N. Rosen: No, the position as I understand it, the position as I take it of the Connecticut lower courts is that the statute is applied and if unconstitutional as construed as unconstitutional only by Connecticut appellate court.

Justice Thurgood Marshall: Well, why in this case did they hold this for the --

Mr. David N. Rosen: The Connecticut courts have not construed the statute to be -- have not addressed themselves of the constitutionality of the statute.

Justice Byron R. White: The court in Connecticut that will --

Mr. David N. Rosen: The Connecticut Supreme Court.

Justice Byron R. White: Pass on the statute which is with Justice Marshall.

Justice Thurgood Marshall: Well, how do you do it here as this particular case now stands?

Mr. David N. Rosen: Yes, sir.

Justice Thurgood Marshall: There is no way for the Supreme Court of Connecticut to decide this case.

Mr. David N. Rosen: Your Honor --

Justice Thurgood Marshall: Am I right?

Mr. David N. Rosen: As this case now stands because --

Justice Thurgood Marshall: Am I right?

Mr. David N. Rosen: -- because the petitions are stayed, you are right Mr. Justice Marshall and thus the second --

Justice Thurgood Marshall: So that we don't in all other states we go out through the State Supreme Court up to this Court while in Connecticut we go take a short circuit and run to the federal court --

Mr. David N. Rosen: Well, their --

Justice Thurgood Marshall: With the cooperation of both the state court and the plaintiff.

Mr. David N. Rosen: And the state who which has --

Justice Thurgood Marshall: Short circuits, the state could.

Mr. David N. Rosen: The --

Justice Thurgood Marshall: It denies us the opportunity of getting the opinion of the state court on one of its own statutes.

Mr. David N. Rosen: It seems to me --

Justice Thurgood Marshall: Do they?

Am I correct?

Mr. David N. Rosen: That is the -- that would be the impact of that statute but it would not be --

Justice Thurgood Marshall: Is that the impact on this particular statute as applied in this particular case?

Mr. David N. Rosen: Mr. Justice Marshall it is --

Justice Thurgood Marshall: There is no way for us to get a definitive opinion from the Supreme Court in Connecticut as to its own statute.

Mr. David N. Rosen: Mr. Justice Marshall, if this Court abstains at this point, you will not get that adjudication and that's the point that I wanted to make.

It seems to me that if this Court were to abstain today, what would happen would be that the name plaintiffs in this case would be faced with an immediate judgment of civil contempt involving their incarceration.

Justice Byron R. White: So they could appeal?

They could appeal?

Mr. David N. Rosen: Well, they cannot appeal, there is a statutory proceeding for review but --

Justice Byron R. White: Well, whatever it is that they -- and that could give that constitutional question decided.

Mr. David N. Rosen: Yes, Your Honor.

Except that the point that I want to make from the perspective of my clients which are the children of those appellants.

Justice Byron R. White: And the judgment might be stayed while they were appealing.

Mr. David N. Rosen: It might be stayed and the problem is that the judgment might not be stayed from the perspective of my clients who are the children of the mothers.

In the event that the judgment is not stayed, the mothers will be under what -- will and all likelihood be an irresistible pressure to do one of two things.

Give the name or dissimulate in one way but in any event not to serve a jail sentence while the case is being appealed and from the perspective of my clients where the children, they --

Chief Justice Warren E. Burger: Would you think the District Court in Connecticut, the United States District Court might have jurisdiction in the habeas corpus case if there were confinement under contempt order of the state court --

Mr. David N. Rosen: Well, that would avoid the -- that would post the same -- that would bring this case up through the federal courts again without going up through the state court it seems to me.

Chief Justice Warren E. Burger: Not necessarily, not necessarily.

Mr. David N. Rosen: You're -- you're referring to possibility of staying -- habeas for stay while the case is appealed through the state courts.

They might have that jurisdiction but --

Chief Justice Warren E. Burger: That's been done -- that's been done many times in many states.

Mr. David N. Rosen: But it would involve my clients being subjected to a risk that their mothers will be unable to resist the compulsion of the state and my clients as children do not have control over their mother's ability to resist that compulsion.

Let me speak about what from the perspective of the children as the central issue in this case.

Justice William H. Rehnquist: Let me ask you one more question about --

Mr. David N. Rosen: Yes, sir.

Justice William H. Rehnquist: -- that you said you were just been on, Mr. Rosen.

When you say the Connecticut lower courts have this policy, is this Connecticut lower courts of general -- of lower -- of limited jurisdiction?

Mr. David N. Rosen: Yes, it is.

Justice William H. Rehnquist: Or is it -- does the Connecticut superior court have had that policy that trial court of general jurisdiction?

Mr. David N. Rosen: The policy is related to the step -- the fact that the Court of Common Pleas and the Connecticut Circuit Court which were the courts that we're dealing with here are courts of limited jurisdiction and that had been construed.

And I will not comment on the appropriateness of that construction to limit the court's jurisdiction to consider constitutional questions as the jurisdiction of an administrative agency is familiar will be limited.

Justice Thurgood Marshall: Is this by constitution of Connecticut?

Mr. David N. Rosen: It is a judicial construction of the Connecticut Constitution which --

Justice Thurgood Marshall: Where is it that I can read it, what you just told me you said?

Mr. David N. Rosen: Well, the leading cases are two cases called State against Townsend and State against (Inaudible) and with the Court's permission a supplemental submission on the abstention question which is not been raised as we say previously would give us an opportunity to express our views on that question.

Justice Thurgood Marshall: I don't need it for myself and more speaking for myself because I just don't believe Connecticut can deprive this Court with an opportunity to have a state court decision deciding the constitutionality of every state statute.

I don't think Connecticut can deny us that right.

Mr. David N. Rosen: I'm -- I'm sure Your Honor that you're right as a matter of constitutional law, I'm concerned about the --

Justice Thurgood Marshall: Well, why do you argue in the other way?

Mr. David N. Rosen: I'm -- no, I'm arguing only as a matter of practicality.

Justice Potter Stewart: You're just telling us what the -- what's your understanding in the Connecticut law is.

Mr. David N. Rosen: That's right.

Justice Potter Stewart: You're not arguing that as right.

Mr. David N. Rosen: That's right.

Justice Thurgood Marshall: But you did raise all the questions in the state case?

Mr. David N. Rosen: The state case has never proceeded to a point where those questions might be raised.

Justice Thurgood Marshall: Well, then I understood then, are you -- did the gentleman Mr. Cochran say that all of the points were raised in the state case?

Mr. David N. Rosen: They -- I understand is they may have been raised formally or informally.

Justice Thurgood Marshall: Well, this is your case.

Mr. David N. Rosen: Yes, Your Honor but the state case was brought by the mothers.

I was appointed by the United States District Court to represent the class of children in the federal case but in any event the --

Justice Thurgood Marshall: Alright.

Alright.

I'm going to it for you, I'll let you know.

Mr. David N. Rosen: Thank you sir.

May I address the merits for a moment from the perspective of the children of appellants which is that Mr. Justice Rehnquist, your statement before that the statute applies to all children is correct with a reservation that the procedural mechanism of the statute provides that for children who are not on welfare, the proceedings against the mother can be instituted if and only if there is a determination that instituting those proceedings will serve the best interest of the children whereas with children on welfare, that determination is not made.

Now, the distinction arises in the following way, a proceeded -- excuse me, a proceeding may be brought and -- the case of a child not on welfare.

Only by a guardian or a guardian ad litem of the child, now, what this means first is that a court must determine that the best interest of the child will be served by appointment of a guardian or guardian ad litem.

Second, the guardian or guardian ad litem prosecuting the action to compel the mother to give the name is required by fiduciary obligations to act only in the interest of the child by contrast, the welfare department and the welfare commissioner, the defendant in this case is empowered to bring actions against children who are on welfare.

It is his policy stipulated in the record and brought out in the evidence to bring those actions against each and every woman on welfare who fails to make disclosure whether or not the best interest of that woman's child will be served.

So the poor child, the child on welfare that is to say, gets no protection of the child's interests and the child who is not on welfare is ensured by the procedural mechanism by which the proceedings are brought that the proceedings will be brought if and only if those interest are served and will be pursued only insofar as those interest are served.

Mr. Cochran's alluded to the harm that may come to the children whom I represent as a result of brining paternity -- rather bringing disclosure proceedings where the interest of the child might not be served.

Those harms are very serious and they've said out in the record.

In the short time remaining I won't give you too many examples of them but for example, a mother may be establishing a relationship with a perspective stepfather or adoptive father which might be interrupted by bringing the proceedings.

A woman who gave an affidavit below is the name plaintiff in a companion case risks this fellowship from her church should the fact that she was the mother of an illegitimate child become known.

In those cases, a guardian or a guardian ad litem of the child might have decided that brining the action would not serve the child's interest and would not have brought the action.

The Commissioner of Welfare will bring the action because the Commissioner of Welfare has determined to bring the action in each and every case.

Now the justifications offered by the state to -- for the distinction of -- or first there's the obvious distinction between children and welfare and children not on welfare that the state argues a more substantial recoup in interest in the event -- in the case of children on welfare.

As to that, let me say first that that distinction has no rational relationship to the precise discrimination worked by the statute because the precise discrimination worked by the statute deprives the child on welfare of any representation as a matter of right in the proceedings which will determine whether or not the mother has to make disclosure.

The child who is not on welfare has that protection and has a guardian ad litem under the statutory procedure and the proceeding can be brought without it.

So that the child whose on welfare doesn't have a spokesman, doesn't have a representative of his interest while a child is not on welfare, it does.

Whatever the balance the court may strike between the interests of the state in recoupment, the interest of the mother in privacy, the interest of the child and protection of the child's interest is not related at all to the question.

So whether the child's interest are entitled to have a voice at that proceeding when the child is poor if they are given a voice when the child is not on welfare and that's the discrimination work by the statute.

Now, the -- in addition, we talk in our brief and I won't belabor the point here about the importance of the child's rights and our position there is simply that the states financial interest cannot in any event justify abandoning those child's rights and interest in the case of children who are in welfare when those interest are pursued and protected when the child was not on welfare.

The states primary justification for the statutory scheme is that disclosure serves the interest of all children, on welfare and not on welfare.

The compulsion is good for the child.

To this, the reply is so it may be in some cases.

But it is frequently not the case.

The evidence in the record below was powerful that it is not in many cases.

The unrebutted expert testimony we produced from very distinguished experts was that it was quite frequently not the case that compelling the mother in instances in which he didn't want to make disclosure, to make disclosure might hurt the child.

In any event, our -- when seen from the perspective of the -- what we consider be a rationale of the other state interest, the recoupment interest, this claim that the best interest of the child or what is advanced amounts to an irrebuttable presumption contrary to fact.

It's an irrebuttable presumption that the interest of the child will be served although the child is denied in the hearing, a guardian or a guardian ad litem if the child is on welfare to attempt to show that those interest will not be served.

It's an irrebuttable presumption that the child's interest will be served which is belied by the record below.

It is in short an irrebuttable presumption which the state applies selectively.

It applies it selectively to children who are on welfare but it does not apply the irrebuttable presumption that disclosure and compulsion always serves the child's interest and the case of children who are not on welfare.

In short, this is a statute which in the name of the best interest of the child which has been the state's claim all the way through as to the point of statute in fact deprives a subclass of those children, those illegitimate children of an opportunity to have their best interest voiced and have their best interest be determined.

Chief Justice Warren E. Burger: Do you think the interest of children generally in Connecticut are implicated in the necessity for keeping this fund solvent and keeping Connecticut in a position to pay these benefits?

Mr. David N. Rosen: Certainly children in general have such an interest with respect to how that interest is served in this case.

It seems to me first that the interest of an individual child where that interest is threatened and endangered should not be forced to give way to a speculative interest on behalf of children in general in the states financial solvency.

Chief Justice Warren E. Burger: It says speculative interest.

Mr. David N. Rosen: Well, I say it's speculative interest because the record below indicates that the Connecticut Welfare Department has made no study of the amount of money that they recoup under the statute and parallels --

Chief Justice Warren E. Burger: Did you make any study to know that if you pay this money out without recoupment, it's going to have an impact on the fund?

Mr. David N. Rosen: Yes, but the thing that you might have to study is how much money you'll get back by pursuing the small class of women who resist disclosure of the name of the putative father even when told by the Welfare Department of the possible benefits which might come up.

That's -- that's the money that's being lost and the record indicates that the money that is going to be recouped by the State of Connecticut is rather small, in fact it's extremely small because of the fact that the fathers may be absent, fathers may not be available, fathers may be impecunious and all those factors by the way are factors which the mother or the guardian of the child can attempt to elicit in determining whether the interest of the child will be served by going after the father.

If there is a father who has money, who has resources, the interest of the child may be served by pursuing that father.

There's a father whose whereabouts are unknown or who is incarcerated, whose impecunious, the guardian may make the same determination that the interest of the child, if there are important countervailing interest suggesting the mother's decision not to disclose ought to be respected.

The financial interest also would not be strong.

Justice Byron R. White: (Inaudible)

Mr. David N. Rosen: I think not Your Honor. Congress --

Justice Byron R. White: Well, they went to an awful trouble to require the states to have some plans in this area.

Mr. David N. Rosen: Yes, they did.

The reason that I --

Justice Byron R. White: Not -- not for a negligible reason, I would hope.

Mr. David N. Rosen: No.

No, I think not but the plans first of all apply to that large class of women the record indicates its somewhere around 70% that make disclosure voluntarily without any suggestion much less compulsion.

And the thrust of the congressional plan as I understand it is to improve the enforcement mechanism, the Senate Finance Committee which grafted the new congressional enactment said that the committee feels a mechanism should be provided to ascertain the child's paternity whenever it seems that this would be both possible and in the child's best interest, that's on page 6 of Mr. Cochran supplemental brief.

Chief Justice Warren E. Burger: Well, if you should succeed in removing all the compulsion and coercion for the disclosure of the name of the father, maybe they wouldn't be 70% voluntarily or apparently voluntarily submit maybe they'd only be 10% or 2%?

Mr. David N. Rosen: Well, except Mr. Chief Justice that as I read the record, that is a figure that 70% make disclosure before the fact of compulsion is brought home to the women and also I'm not opposing compulsion.

That's not my position.

My position is that compulsion is warranted in the interest of the child and I have a position even yet more cautious than that which is that the statute is unconstitutional because it provides not even a voice for the poor child so that those interest may be brought home to the Connecticut judge who has to determine whether to enforce the compulsion while for the child who is not on welfare, those interests are represented and they are disponsive.

Chief Justice Warren E. Burger: The court reads the statute in order to save it from its -- from the constitutional attack that you suggest, it reads the statute so as to require the appointment with guardian ad litem then your point is gone, isn't it, they haven't gone around to that issue yet?

Mr. David N. Rosen: Well, that's true.

Chief Justice Warren E. Burger: And you haven't -- I shouldn't say you, your colleague hasn't let the Connecticut courts get around to that issue.

Mr. David N. Rosen: Well, except that there is still an important distinction even where the guardian where to be appointed in the case of all children.

The distinction is still that with children who are not on welfare.

The guardian not only as appears for the child but controls the proceedings, institutes the proceedings and may withdraw the proceedings when and only when the interest of the child dictate and its that discrimination which seems to me to violate the rights of a subclass of illegitimate children namely those illegitimate children who are on welfare.

Thank you.

Justice Potter Stewart: Mr. Rosen, before you sit down you -- earlier in your argument volunteered to submit a brief supplementary memorandum on this whole question of the Younger question and the -- including the practice of the interior courts in Connecticut never to decide or to avoiding deciding constitutional issues and so on.

That would be very helpful from my point of view, so if with the approval of the Chief Justice, I would appreciate the submission of such a memorandum within a brief period if you could.

Mr. David N. Rosen: Thank you.

I appreciate the opportunity for this.

Chief Justice Warren E. Burger: And so then, would five days be enough or do you want ten?

Mr. David N. Rosen: I'd like ten, Your Honor.

Justice Byron R. White: Mr. Rosen, suppose the Attorney General of Connecticut gets up and says, I've waived all my rights --

Mr. David N. Rosen: Well, in that case, I would address myself to what this Court's rule should be response of that offer.

Justice Potter Stewart: That should be a memorandum would simply recite that.

Mr. David N. Rosen: That's right, it certainly start with that.

Justice Byron R. White: Well, on the other hand (Inaudible).

Mr. David N. Rosen: Then I'd rather slightly different memoranda.

Justice Byron R. White: What would you say then?

Mr. David N. Rosen: What I would say then is that the -- that where my client's rights, like the children's rights are jeopardized by what I refer to as a silent extinguishment of their rights and in --

Justice Byron R. White: So, you're going to say that the Younger does apply?

Mr. David N. Rosen: That's right.

Justice Byron R. White: Well, I know -- you're not -- you wouldn't say that the he has already waived it?

Mr. David N. Rosen: Well, I would also say he has already waived it because you made that suggestion to me.

Chief Justice Warren E. Burger: Well, then there is a further factor that this might lead the court to reexamine its views about whether this is waivable, this abstention question may be waived by the state so that in any event you submit whatever memorandum you like and your friends will have an opportunity to respond.

Mr. David N. Rosen: Thank you.

Chief Justice Warren E. Burger: You will respond within eight days, will you?

Mr. David N. Rosen: Thank you Your Honor.

It's apparent that I'll need everyday of the ten.

Chief Justice Warren E. Burger: Very well.

Mr. Arcari.

Justice William J. Brennan: Do you waive it Mr. Arcari?

Argument of Michael Anthony Arcari

Mr. Michael Anthony Arcari: No, Your Honor.

Justice William J. Brennan: I beg your pardon?

Mr. Michael Anthony Arcari: No, Your Honor.

Justice William J. Brennan: Did you?

Mr. Michael Anthony Arcari: I'm sorry Your Honor.

Justice William J. Brennan: Did you in the lower court?

Mr. Michael Anthony Arcari: Would Your Honor repeat the question.

Justice William J. Brennan: Did you waive the Younger?

Mr. Michael Anthony Arcari: If Your Honor please, I was not -- you're talking about the state courts?

Justice William J. Brennan: Yes.

Mr. Michael Anthony Arcari: I was not part of those proceedings.

Justice Byron R. White: No, in the federal court, Federal District Court, did you urge the Federal District Court to hold the stand while the -- or to dismiss the case?

Mr. Michael Anthony Arcari: To -- to the best of my knowledge, Your Honor, no.

Justice Byron R. White: Did you ask them to affirmatively to go adjudicate it?

Mr. Michael Anthony Arcari: I at that time was not in charge to this case but I don't believe we did.

It's my understanding Your Honor, it is my understanding that I believe the Federal District Court went ahead because the constitutional issues were not raised by our opponents in the state courts.

Justice Byron R. White: But it doesn't show.

Mr. Michael Anthony Arcari: Yes, Your Honor.

Justice Byron R. White: You're talking about waiver, maybe that's the ability to --

Mr. Michael Anthony Arcari: Your Honor, Mr. Chief Justice and may it please the Court.

The root of the problem in this matter of course is the identity of the putative father.

In Shirley versus Lavine, that's in 365 Federal Supp. 818, this case is very much unlike that case in this sense, in Charlie versus Levine, the mother or mothers involved in that particular case were asked to go beyond to identify the father -- putative father and take further actions against the putative father nor its institutive paternity action.

We don't have that problem here.

All the Connecticut statute is interest is learning -- excuse me, the identity of the putative father and that's all.

The state is equipped to take its own independent action against the putative father to establish paternity and call the mother in as a witness as provided by our laws.

Also not involved in this matter is the reduction of AFDC benefits, that's clearly not involved in our case.

Of course, the first step is utilizing Section 52-440b in order to learn the identity of the putative father if the mother voluntary refuses to disclose the name.

We maintain that in Connecticut, our paternity laws including Section 52-440b are civil including the contempt provisions.

Now, the paternity laws in our state do provide Fifth Amendment immunity and therefore the mother's rights in this matter not jeopardized in that sense.

The primary purpose of the comprehensive -- Connecticut's comprehensive scheme here is the protection of children.

Money, yes, collection of money form putative fathers is an important interest that's a substantial interest.

Nevertheless, that is not the primary purpose of our laws in relation to paternity, that includes 52-440b.

Now, of course we recite in our briefs -- in our brief rather that there has been a trend to create a balance between illegitimate children and legitimate children so the rights equal allowed here.

In other words, we have some cases declaring that the social security benefits should be awarded to children on the Social Security -- illegitimate children on the Social Security Act involves their BA benefits and they're entitled to today and of course their rights protected on the wrongful debt statutes of illegitimate children and the list goes on.

But there's also something else to of significance here that there has been a trend, at least I think it's a trend greater rights for the putative father and this of course it's just beginning in my opinion that there had been state court cases in this area where the putative father for instance is giving or given the right of custody over his first child especially if their -- the mother has committed neglect or has become deceased and of course that the father can provide the home and so forth.

Also there is a case where -- was decided that the putative father, his consent must be obtained as far as adoption is concerned.

So it's not a question of only support, there are other rights -- the primary rights involved here of course are the children but there is the putative father's rights as well as the mothers.

We also point out in our brief for some practical problems here.

For instance, applications shouldn't the -- certainly the illegitimate child have the same right as a illegitimate child to fill in blank space on an application where it says father and this is the whole probably one of the most practical problems we can point out to this Court.

You also have in Connecticut inheritance laws and we have Section 45-274 which in effect says that a illegitimate child may inherit from its natural mother with all the rights and benefits as a legitimate child.

Again, this points up be comprehensive -- a part of the comprehensive plan in Connecticut to protect the rights and further the rights of illegitimate child along with legitimate children.

Now, we say the specific purpose of Section 52-440b of course is to, yes, learn the identity of the putative father for the object of eventually obtaining support in behalf of the child.

Again, we emphasize that's an important purpose but not the primary purpose.

The primary purpose of course, the comprehensive scheme to protect the children, this is just one face of it.

Now, the statute that we're talking about includes all mothers with illegitimate children contrary to our opponent's view here.

Now, we do have some statistics cited in the -- in our brief and I don't believe that I waste time covering that but I think we must understand that the -- what it boils down -- boil down to is this, that I think just as well as anyone else rights are subject control, constitutional rights of any rights, the mother must have -- there must be some control of the mother's rights in this type of a problem as it bears on the -- her child or children's rights and this is where Section 52-440b comes in.

Now, we have claim by the appellants here that the statute, Connecticut statute is in conflict with the Social Security Act was pointed out in the lower court that quite to the contrary, the Social Security Act specifically 42 U.S. Code 602(a)(17)(a) one and two give a frank recognition of the importance of establishing the paternity of an illegitimate child for not only for financial reasons but for the primary purposes of Social Security Act to ensure that the child was brought up in an environment in a family type life, type family type setting.

Now, our statute is merely drawn to carry out the purposes of the Social Security Act as I just related.

On February 18, we receive the copy of a typewritten supplemental brief discussing Public Law 93-647 Part B.

Again contrary to our opponents in this matter, I don't believe that the amendments by Congress in relation to the Social Security Act favor our opponents in many way whatsoever.

Quite to the contrary, I think they enhance of states position here in this respect.

First of all, looking at the amendments, the amendment still incorporate the provision of the Social Security Law, that was Section 602 (a) 17, that is the state plan must have provision in their to establish the paternity of an illegitimate child.

Then what -- amendments actually did in my opinion is to add provisions to the Social Security Act adding these two provisions that the mother nor as a condition of eligibility.

The mother must cooperate with the welfare authorities in establishing paternity and helping to secure support for the children.

Of course, cooperation must be construed the identity of the father.

I need to get over that basic threshold.

Now, I read a clear intent of Congress saying that if the mother elects not to disclose the name of the putative father under the most recent amendments that she can be cut from welfare assistance, I think what Congress is saying that, alright if she wants to exercise that right, she's off assistance, she's out of the protection of the Social Security Act.

Her children remain under the protection of the Social Security Act.

Now as I understand trying to analyze my opponent's view on this thing if the mother is removed from the protection of the Social Security Act then certainly I don't think Congress intended that the state may not act under Section 52-440b in the plot against the mother here who is no longer on assistance.

After all the states so has no obligation to protect the children that are lift on welfare assistance under the Social Security Act.

In short, I don't think we have a statutory conflict because of that reason.

I move -- may I move on to the right of privacy.

Our position that there is no fundamental rights involved here.

Our opponents discuss that the -- if the mother is forced to disclose the name of the putative father that gets into an area that's embarrassing to her, it appears with the most intimate details of her life, we maintain no that first of all from the practical side, when the mother has an illegitimate child, these facts become known partially any way to the community around her and I don't care if she goes out of state to have her child when she comes back to the community, the community or neighbors no doubt will find out that she had an illegitimate child through one process or another.

So the harm if there is any harm here has been done, it doesn't certainly involve the state.

We say also that the inquiry does not go into so-called the intrusion into the home.

It does not interfere with interpersonal decisions on the part of the mother or any one else she knows nor does a judge -- nor are we sending ourselves up through the statute to judge the mother's misconduct if it is misconduct.

We're not forbidding the mother to have a man in the house or in the bedroom for that matter.

Again, it's very limited in the sense all we want is the identity of the father, no more.

She doesn't have to testify beyond that point.

That's in -- as far as the contempt procedures are concerned.

Now, even if there -- we recognize that the mother does have some rights here --

Justice Potter Stewart: But under the other statute, if then paternity proceedings are brought, she would have to testify under -- if she is subpoenaed, wouldn't she?

Mr. Michael Anthony Arcari: That's correct Your Honor and but you're also --

Justice Potter Stewart: And again under the sanction of a possible contempt if she didn't.

Mr. Michael Anthony Arcari: That's correct, she's subject to same laws as any other witness Your Honor and but she does have the right of the immunity of all the sections in the Fifth Amendment immunity and so forth.

Justice Potter Stewart: As any other witness would?

Mr. Michael Anthony Arcari: That's correct Your Honor.

Now, as I say, the right -- if the mother does have some rights in this matter, we point to Roe versus Wade and I think the significant thing in Roe versus Wade, this Court of course recognize that at some point in time, the unborn child of the unborn fetus acquires rights and at that point, the mother's rights or rights of personal privacy, what have you, I'm not sole that they -- her rights have some bearing under unborn child right.

Certainly we can use that principle, certainly the children that have been born have at least the same rights.

Now, while we're trying to persuade this Court on is we must look at that under the rights individually from the children or the mothers or what that you must looked up, everyone's rights in a collective sense.

Going back a little bit into Connecticut's history, Connecticut under the doctrines of parent -- under the doctrine of parens patriae, of course recognize the protection of children but it's going that -- much further than that.

Connecticut's Court have made the children's interest paramount and they even go on farther on that by saying that we will protect children's rights in every way possible and that includes illegitimate children of course.

Now, Connecticut has also even going so far as to alter the family relationship when one or both parents have caused neglect and of course that is a proceeding usually in the juvenile court on a probate court and this is a well-defined cases.

Now, of course, I might point out that Connecticut never adopted the Law of England which recognize that the illegitimate child to be child of no one right from the beginning.

Connecticut recognized that the child is the child of its natural mother with all the rights and benefits that illegitimate -- legitimate children have.

Now as I said, I pointed out to this Court that support is an important function here but it's not the primary reason and I can't emphasize that too much.

Justice Harry A. Blackmun: Mr. Attorney General.

Mr. Michael Anthony Arcari: Yes, Your Honor.

Justice Harry A. Blackmun: In that connection, let's assume you have a mother who is quite wealthy and has always supported her own child, as I understand your position, the state would proceed against her in the same way, is that correct?

Mr. Michael Anthony Arcari: It is my opinion that the state should whether -- let me point out Your Honor that our department is concerned with welfare matters.

So, if we didn't have a welfare interest nor it was a child was not on assistance, our division of the Attorney General's office will not proceed against here.

Possibly some other division could.

Justice Harry A. Blackmun: Well, the statute by its terms provides for three subclasses and one of the subclasses is not conditioned on receipt or welfare at all, do you agree with that?

Mr. Michael Anthony Arcari: I agree with that Your Honor and I --

Justice Harry A. Blackmun: So the statute would apply in the situation not described, would it not?

Mr. Michael Anthony Arcari: Yes, it would Your Honor.

Justice Harry A. Blackmun: It would apply.

Now, suppose in this case that one of the mothers had relinquished all rights to future welfare for the child in question and had offer to repay whatever she had received.

Would the state continue to have prosecutors here under this contempt proceeding or would it have withdrawn the prosecution?

Mr. Michael Anthony Arcari: No, it refuses to disclose the name of the putative father under those circumstances.

Justice Harry A. Blackmun: In other words if he refuse to disclose the name of the father, she would be prosecuted?

Mr. Michael Anthony Arcari: I believe, yes.

The statute too will apply to it Your Honor.

Justice Harry A. Blackmun: Alright, thank you.

Mr. Michael Anthony Arcari: Yes, Your Honor.

What we maintain it's involved as far as the appellant mothers is that, yes, they have suffer some shocks and so forth.

Of course, they do this at their own hands.

They are the ones forcing the issue here as far as being brought into court.

The appellant mothers bring up the question of strains and stresses upon their children.

In fact that's their principal argument here.

This argument gives little recognition to the stresses and strains on the children who are not able to find out or identify their fathers.

There is some testimony and we have cross examination I believe as part of the record and it can speak for itself.

Must keep one thing in mind that the illegitimate child must function in the community just as well as the legitimate child, that child, any child has long way to go in our society and I think the state can't do enough to bring the illegitimate child's rights in balance with the legitimate child's rights.

Justice Lewis F. Powell: Mr. Arcari.

Mr. Michael Anthony Arcari: Yes, Your Honor.

Justice Lewis F. Powell: Do you know the statute of limitations in Connecticut on a paternity suit?

Mr. Michael Anthony Arcari: Are there statute limitations?

Yes, Your Honor.

First of all, there's a three statute limitations and also I believe it's one year from -- if the putative father seizes supporting the child and also under the marriage and divorce laws or dissolution of marriages, there is a one year provision, one year statute of limitations if a child is found not to be issue the marriage during the dissolution of the marriage.

Justice Lewis F. Powell: If the statute had run in a particular case, would the state still insist on divulgence of identity?

Mr. Michael Anthony Arcari: I don't believe so because we have -- I think that's a -- somewhat of a practical problem too.

I don't believe so because you may have a situation where the child is 17, 15 years old and the statute of limitation all the way across the board have run and if there's no welfare involved, we're trying to collect back or something of this nature, I don't believe the state would press the matter.

I think the guardian in litem may have an interest that that's up to the guardian in litem or to represent the child.

Justice Lewis F. Powell: I suppose the child were 6 or five or 4.

Mr. Michael Anthony Arcari: And there's welfare involved?

Justice Lewis F. Powell: Yes, and you spoke of a three-year period.

Mr. Michael Anthony Arcari: If the statute of limitations has run Your Honor, we cannot -- that would be brought up as a defense and that my opinion would be what I know about paternity matters that would be a good defense.

Justice Lewis F. Powell: I'm just suggesting that might be a case where the -- where clearly the rights of privacy would outweigh any interest on the part of state.

Mr. Michael Anthony Arcari: That may very well be but I'm going to get into this a little further on.

The mother involved is certainly in a position to bring up those rights and I think she would be very well -- may very well persuade the Court the she's -- happens to be dealing with that time.

We also have a claim on violation to due process of law.

We talk somewhat of the substantive part of it.

I think of the Section 52-440b in relation to due process, now we maintain it is rationally related to carry out the purposes of protecting the child here and gaining support and so forth but the standard, the procedure involved, certainly the object as I pointed out before of the Connecticut statute is to learn the identity to eventually obtain support.

That certainly is within the Government's scope to compel testimony and my understanding, the only constitutional restriction of the scope of the Government's power to compel testimony is the Fifth Amendment and we did make provision in other parts of our law for that.

What the opponents -- our opponents bring up are these four things that the statute creates an irrebuttable presumption and that there's no individualized hearing I take that to me in the trial type hearing, also there are no -- they're not sufficient standards under due process of law and the statute is too broad.

First of all, looking at Section 52-440b, the statute says when disclosures to be made under what circumstances and to whom and the subject matter is quite restricted if the mother fails or refuses to disclose the name of the putative father of such child under oath, that is the subject matter of the act involved here.

Now, once the court, the Court of Common Pleas now, gets by that first set of standards, it then under the contempt proceedings in Connecticut, it must eventually answer this or apply these standards, who is making the demand here, under what circumstances whether there is a refusal to be sworn or to refuse to disclose whether the refusal is justified in law, whether there's a question that is proper and whether the proper question is recently reasonably related to the subject matter inquiry and of course the Court of Common Peas in a contempt proceeding has the power to hear witnesses and even undertake or hear defenses in behalf of the mother.

Now also through the hearing, the contempt hearing itself, obviously due process law applies here.

In other words the mother will be protected as far as any excess of means of -- in other words state to extract evidence from her.

In other words, I'm getting at is this would take care the appellants fourth argument -- Fourth Amendment argument here.

Also, under the statute legal process also applies.

In other words, a mother -- no one can just drag the mother off the street here.

A citation must be issued and she is ordered to show cause why she should not be held in contempt as far as disclosing the name of the putative father.

She has a right of counsel just as like anyone else.

There is no -- in other words, the Connecticut laws do not prevent her from having her own counsel.

If she has -- doesn't have sufficient funds, again there is state law or state policy or inherit within the state courts discretion here to see that she does get counsel.

Also, in the contempt proceedings, the judgment that's handed down is a final order and reviewable by the State Supreme Court and the subject of review goes into the jurisdiction as to the Court's right to punish.

Also in to the area, could the acts involved constitute contempt?

So there is a full and complete review including any constitutional claims that may arise out of the contempt proceedings.

Justice William H. Rehnquist: Have these cases always been handled in the Court of Common pleas initially or is that just been a recent status?

Mr. Michael Anthony Arcari: It's my understanding that the cases of the -- well the cases involved in this particular case have been pending for about a year or so, in other words, the procedure has taken place and the Court of Common Pleas is not too old and I believe all the cases are pending, I don't think they are going forward waiting to see what happens to this case.

Justice William H. Rehnquist: And that's your court of general trial jurisdiction in Connecticut?

Mr. Michael Anthony Arcari: No Your Honor, the -- right now, the -- our judicial system is split up between the Superior Court and Court of Common Pleas of both trial courts and it's well-defined as to which one has jurisdiction in certain cases.

Justice William H. Rehnquist: Is the Court of Common Pleas kind of a misdemeanor type of court?

Mr. Michael Anthony Arcari: I believe yes Your Honor.

Now, under the new reorganization they do handle misdemeanor such as traffic --

Justice William H. Rehnquist: It's kind the -- it's inferior into the superior?

Mr. Michael Anthony Arcari: I believe you could still classify it that way, Your Honor.

Justice William H. Rehnquist: And then there's appeal like in the Court of Common Pleas to the Supreme Court of Connecticut or the superior court?

Mr. Michael Anthony Arcari: Well, again that provision of appeal, I'm not quite sure where the appeal will lie, I believe the appeal would still lie under the present act Your Honor, on the new Act I should say to the Supreme Court.

It's my understanding that the contempt provisions, you would still go up to the State Supreme Court on that.

Justice Potter Stewart: Your brother on the other side said there was some sort of a special statutory provision to review contempt he thought.

Mr. Michael Anthony Arcari: Well, if I may answer that question, my understanding, there are two types of contempt.

If an act of contempt is committed before the Court, the statutory standards apply.

Here we're having the mother brought in which means the common law standards apply.

Now as far as appeal for -- from the Court of Common Pleas to the State Supreme Court, I believe the statute would control the appeal and I believe that was -- that is in other words the statute would dictate the procedure involved.

Now, an important matter in this of significance is that the Court of Common Pleas has a power under the statute to exercise some judicial discretion and this is put it out in the trial court here.

What do I mean by that?

Three phases of it, first of all the court has the sound discretion to decide whether to order contempt or not.

Two, if it finds a mother in contempt, there still has a discretion whether to enforce penalty or not to order penalty and also above this business about bringing -- forcing the mother to bring a prosecuting paternity action.

The Court of Common Pleas still has discretionary powers to do that.

We point out in our brief that since we have other laws in the paternity sections of our laws, that allow the town or the state to bring a paternity action, obviously the court will exercise discretion and suggest to the state that they bring independent action whether in trying to force a mother who is perhaps trained to resist at that point to bring this action because obviously this will have in effect in the trier of fact.

Also, I want to go to discussing all the standards, I point to the Court, I don't see how we can come to the conclusion that in any way possible there is cruel and unusual punishment under the Eighth Amendment of the United States Constitution, individualized hearing.

I don't believe my understanding from reading some cases any way that due process of law requires a trial type hearing in these proceedings as far as a contempt under Section 52-440b.

You have to keep in mind the appellants are not on trial for their conduct.

All are being brought in the court for as a limited inquiry with sufficient safeguards on the due process of law, what have you.

This is not a prosecution type situation where again their conduct comes into focus here in the court is going to go beyond learning the identity of the putative father.

The appellants bring up the First Amendment rights.

They claim that they have a right not to divulge this information under the First Amendment and of course a First Amendment type argument we have perhaps a high standard being applied here.

I like to point it out to the Court that the First Amendment doesn't prohibit the state again its power to compel testimony here but it does obviously restrict the states here and it's my understanding that if the state's interest involved is cogent to justify abridging the right of association or what have you, then in this case the states -- our position should be upheld.

Now again, I want to emphasize that we believe our position in this matter is compelling.

I think it's overwhelming in the sense of protecting the rights of the illegitimate children.

Certainly, I pointed out before that on regard to the appellant's argument that they have a right under the First Amendment not to resort to the courts, now what they mean by that is again going back to the Court of Common Pleas possibly forcing them, other they bring a paternity action.

I gave a little bit of background about that but certainly the paternity aspect of it prosecution of attorney suit is not compulsory under 52-440b, also the contempt provisions are not mandatory and certainly our act does not force the mother or any mother to adopt beliefs or attitudes, anything different from what they actually believe.

It comes -- come down to the equal protection claim here and of course the lower court applied the rational standard here which I think is a correct standard to apply.

We pointed out in the beginning of this argument that the state position was that we have a comprehensive scheme and at the core, that comprehensive scheme is to protect and further the rights of illegitimate children are the means under Section 52-440b to protect those rights learning the identity of father.

Certainly rationally related to carry out the provisions of that comprehensive scheme and also any provisions under the Social Security Act, but commenting just a moment that I think we also under that same argument have a compelling interest as I noted before.

We're talking about the classifications themselves.

Our point to spring up that there's a sex classification.

You have to keep in mind that man yet do not bear children, women carry on that function and the point here is that we have a very unique situation so I don't think in any serious sense of the word you can take women in this type of context and say we have a suspect classification.

Also our opponents pointed out to this Court that they believe there's a suspect classification as to poverty.

Again, we pointed out before that our statute does not apply simply to poverty or to women on -- receiving AFDC benefits or the family as such.

They apply to as I pointed out to Justice Powell that it applies to people not receiving AFDC benefits or any state welfare assistance.

So I don't think you can say that poverty is a suspect classification.

It was brought up by Judge Blumenfeld in the lower court that at that time the appellants claim that the children, illegitimate children became -- were -- or rather were a suspect classification and Judge Blumenfeld quickly stated that this is taking the classification and standing on its head in the sense that the Section 52-440b is designed to help the children not to detract from the rights or benefits and therefore it fits on the corners with the Social Security Act and also certainly rationally related and not in violation of the equal protection of the laws.

If I may point out something that I emphasize again that we do not have a criminal contempt involved as far as Section 52-440b that it's my understanding of the law that children in our state are not under represented by guardian ad litem at certain times but also its customer to appoint attorneys to represent children.

The -- I suppose unless there is a conflict of interest, the guardian ad litem could be the attorney representing the child but they don't necessarily have to be.

The attorney representing the children involved in this matter made a statement which says that as far as they were concerned, the welfare department, the welfare policy is to bring an action and I -- on this Court those words bring in action against the mothers involved noted to get them disclosed.

The state welfare department does not bring an action against any mother receiving welfare assistance here.

They take the information, their policy provides that they take the information, they review it and if there has -- if there's a problem involved in the identity of father we refer it over to outside counsel then it -- in short they refer it to the courts.

And everything that goes on from that point on is under the supervision of the Court of Common Pleas under the statute itself.

And of course the statute itself as I pointed out in our argument heavily controls the Court of Common Pleas here with sufficient standards.

And of course, our opponents mentioned or made quite a bit of the financial interest of the state as long as I can -- probably end my argument on this note.

That certainly I admit to this tribunal that the financial interest of the state is very substantial here.

But I still think that the primary interest involved are the welfare of the children, the illegitimate children and so long as I'm a member of the Connecticut bar, I plan to work towards that effort even though I may find myself collecting money from putative fathers.

That still hasn't deterred me from keeping that principle uppermost of my mind as far as the protection in welfare of the children.

Thank you very much for your attention.

Justice Byron R. White: Attorney General, may I ask you a question?

Mr. Michael Anthony Arcari: Yes, Your Honor.

Justice Byron R. White: Does Connecticut have laws that apply to married women where for example the father has left the home and his location maybe unknown, what happens then?

Mr. Michael Anthony Arcari: If the mother lose the home?

Justice Byron R. White: You have a married mother --

Mr. Michael Anthony Arcari: Yes, Your Honor.

Justice Byron R. White: -- father has left the home, his whereabouts may or may not be known, he is not providing support for the children.

Mr. Michael Anthony Arcari: Yes, Your Honor.

Justice Byron R. White: What is the procedure in Connecticut?

Mr. Michael Anthony Arcari: I believe the welfare department has a policy where they will attempt to locate the father in the best way possible.

Justice Byron R. White: Is there any statute that compels the married mother to disclose the whereabouts of the father if she --

Mr. Michael Anthony Arcari: I don't believe so Your Honor.

Usually this, for instance like, we find that problem very much in divorce matters and a dissolution of a marriage and the courts will rely on their equity powers to see if they can obtain the information.

Of course, before we get in to court, the Welfare Department and the Department of Finance Control have a location unit and we work with other states using the Social Security number to trace down fathers involved as far as support.

We do had this going all over the nation and our only problem involved is we don't have enough manpower but it seems to work out quite successfully.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.