PICKETT v. BROWN

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ORAL ARGUMENT OF HAROLD W. HORNE, ESQ. ON BEHALF OF APPELLANTS

Chief Justice Burger: We will hear arguments first this morning in Pickett against Brown.

Mr. Horne, you may proceed.

Mr. Horne: Mr. Chief Justice, and may it please the Court.

The issue in this case is whether Tennessee's two-year statute of limitations governing paternity and child support actions for illegitimate children violates the Fourteenth Amendment to the Constitution of the United States.

In Gomez v. Perez, this Court held that once a state posits a judicially enforceable right of children to support from their natural fathers, that the Fourteenth Amendment prohibits the state from denying the same right to illegitimate children.

Last year this Court, in the case of Mills v. Habluetzel considered Texas's response to Gomez and found that Texas's one year statute of limitations was unconstitutional.

In Mills the Court considered two criteria, the first being that any period for obtaining support must be sufficiently long in duration to present a reasonable opportunity for those with an interest in the child to assert the child's right to paternal support and second, that any period of limitation on that opportunity must be substantially related to the state's interest in avoiding the litigation of stale and fraudulent claims.

This Court found that in the Mills case, the Mills statute, the one year statute of limitations failed on both criteria.

And the same reasoning which applied in Texas's case applies in Tennessee's, or to Tennessee's two-year statute of limitations.

But in addition, in Tennessee, we have three additional factors which further the conclusion that Tennessee's two-year period of limitations is nothing less than invidious discrimination toward illegitimate children.

The first is that in Tennessee's two-year statute of limitations the statute applies only to illegitimate children who are not receiving support from the state or who are not, in terms of the statute, a public charge.

Thus, a two-year, nonwelfare, illegitimate child whose mother fails to file an action before the child reaches his second birthday will find his right to legitimation and to receive paternal support forever terminated, unless the child sometime in the future goes on welfare, receives AFDC or any other form of state assistance, and becomes a public charge, at which time the statute which purportedly had run, then terminates and the child can then, on behalf of any person, have an action filed, or any person can file the action on behalf of the child to seek the paternal support.

Thus, the Tennessee legislature itself has considered that claims involving paternity and paternal support do not, in and of themselves, become stale prior to 18 years, or the reign of 18 years.

The second item, and it comes out of a number of cases this Court has previously decided, this Court has held that involving the death of a father, that the claim of a state or the right of a state to legislate discriminatory treatment can be rationally related or substantially related to the state's interest in the orderly disposition of estates.

However, in Tennessee, were the defendant Braxton Brown to die today, young Pickett could go into the Tennessee court and sue his father's estate and if he could meet the heightened standard of proof, being now more than preponderance of the evidence and less than beyond a reasonable doubt, that his father had, in fact, the defendant or the decedent was his father, he could proceed... could get a judgment and could be allowed to receive part of his father's estate.

Now if the issue in today's case were the right of young Pickett to proceed against a decedent's estate, I would have to agree with the Court that perhaps the claim could be stale and certainly would possess the potential for being fraudulent, yet again, the Tennessee legislature, or the Tennessee courts have decided that the mere death of the father, of the purported father, does not cause a claim to be stale or so possessed with the problems of being fraudulent as to terminate that cause or right of action.

Third additional consideration is that in Tennessee the statute itself says that the purpose is to provide for the support, education and welfare of illegitimate children.

On the front end of Tennessee's statute, they again say that the fathers are responsible for the welfare and support of their illegitimate children.

Now obviously, one of the purposes of this statute is to prevent the likelihood that the illegitimate child will be placed upon the... or placed in need of support from the taxpayers of the state of Tennessee.

Unidentified Justice: Mr. Horne, why did the mother wait so long in this case to bring her suit?

Mr. Horne: You won't find it in the record, Your Honor, because I didn't come into this case until the statute of limitations issue has already been raised and we went straight from that issue to the Supreme Court, but in this case, Mrs. Pickett, when she became pregnant was so embarrassed, she told me, that she immediately left the town that she was living in, Memphis, moved down into Mississippi with her child to give birth in a community where nobody knew her and where she could hide her shame.

She told me that she filed this lawsuit when her child reached about nine years of age, he started saying well, who's my father and how come I don't have his name and why isn't his name on my birth certificate and it was at the request of her son that he be given an opportunity to have his father's name that she filed this lawsuit.

Unidentified Justice: Is it your position that no statute of limitations can be applied to an illegitimate child during the minority for establishment of paternity?

Mr. Horne: Well, certainly in Tennessee I would agree that that is my position because of the other factors, but I would argue, likewise, that in any state irrespective of what factors were considered, that there is no logical reason for denying an illegitimate child the right to seek paternal support where the legitimate child is provided that right.

And I would go further and say, if a state were to say, well, legitimate children don't have the right to support from their fathers, I would find constitutional flaw with that argument as well.

Unidentified Justice: Well, Mr. Horne, what about a state which doesn't toll any statute during minority?

That is, the statute runs against minors, not just on legitimation claims, but on contract claims, tort claims and the like.

Mr. Horne: Well, I haven't given as much consideration to that possibility as I have in this case, but my initial reaction, Your Honor, is to say that any statute of limitations which affects a child's right to know his father, to have his father's name, the name on the birth certificate, and the right to receive support from both parents would be an unconstitutional deprivation of both equal protection... equal rights, rather and due process.

The reason, the only--

Unidentified Justice: It wouldn't be a equal protection violation, would it, if all causes of action of minors are treated the same?

Mr. Horne: --I think it would, Your Honor, because in the context of paternity, and let me say I'd have more difficulty with it, it's something I haven't thought about in great depth, but in the context of child support, the only purpose for which a state can pass a limitations period on an illegitimate child's right to support would be the prevention of stale and fraudulent claims.

I think that was the position taken by both opinions in the Mill case.

And I see no potential for stale claims, or I don't see a child support claim becoming stale during the minority of the child.

It certainly doesn't become stale for a child that's presumed to have a father.

One way of looking at it is this, perhaps.

If a couple is married, and this happens all the time nowadays, they get a divorce and the father's trying to avoid his obligation of support, he disclaims the child and says this isn't my child anyway, even though it was born during the course of this marriage.

He takes an HLA blood test.

The blood test comes back and says he's not the father.

He then has a right to avoid the child support obligation there.

The child is, in essence, bastardized by that process and if you have a period of limitations on the child's right to seek support from whoever his true father turns out to be, you've afforded a man a right to avoid supporting his illegitimate children without affording the illegitimate child an opportunity to locate his real father and seek support from the real father.

Unidentified Justice: Well, that's not an equal protection claim, though, I wouldn't think.

Well, at any rate, does Tennessee have a general tolling statute for causes of action accruing to minors until they come of age?

Mr. Horne: Yes, sir.

Every action which a minor child has during his minority is tolled for the period of the minority plus the period of limitations after the child reaches minority so that, in Tennessee, this was going to get toward the end of my argument, but the only action which is terminated for the illegitimate child, or for any child rather, is the action of paternity or seeking paternal support.

Unidentified Justice: What is the practice or law in Tennessee regarding the leukocyte antigen test for paternity actions?

Mr. Horne: There is a bill presently before the state legislature which I understand two weeks ago made it out of committee to the floor, but has not been passed yet, last I heard, which provides that the Department of Human Services in contested paternity cases, is to provide to defendants an HLA blood test, which would be paid for by the state initially, with cost to be allocated based upon the abilities of the parties to pay for it thereafter, and the results of the blood test would be made admissible in the court proceedings either to exclude paternity or to prove a probability of paternity.

Unidentified Justice: Are those blood tests admissible today in evidence in Tennessee?

Mr. Horne: It is admissible to disprove paternity.

It is not admissible to prove a likelihood or plausibility of paternity.

Now Tennessee's statue... two-year statute of limitations, which purportedly has for its purpose, the intent to prevent the child from becoming a public charge to the state, actually has the reverse effect.

A mother such as Miss Pickett, in this case, who finds that her cause of action is terminated by the two-year statute of limitations need only swallow her pride a little bit and go down to the welfare office and apply for state assistance to find that her child then has a right.

The state will then pay for the litigation, file a lawsuit and proceed for her child without a statute of limitations.

So the effect is to encourage women who find that the statute has already run to place their children on the welfare roles and seek additional support from the state, which is the opposite intent of the statue.

The intent of the statute is to see to it that fathers support their offspring.

The Tennessee Supreme Court's response to this was also somewhat surprising.

Relying upon an old New York case in the matter of Mores v. Feel, the legislature... Tennessee Supreme Court, relying upon their opinion, found that the legislature's only interest was to see to it that some one person supported an illegitimate child, as opposed to what the statute purportedly claims on the front end, that there is an intent that both parents should be equally responsible for the support of their illegitimate offspring.

This amounts to an open declaration and acknowledgment, I believe, of invidious discrimination flying in the face of Gomez.

Tennessee is saying, on the one hand, well, both parents are responsible for the support of their illegitimate children, but on the other hand, illegitimate children must be supported only by some one person, that's all we're really concerned about, and if that one person can't provide the support, then we'll set the statute of limitations aside and allow the state to proceed to litigate the claim.

What Tennessee, in reality, is saying is that it's the woman's fault she became pregnant.

Let her take care of the problem.

The man didn't have anything to do with it.

It's a blatant declaration of male supremacy and I believe it's a throwback to the days when state laws were made by male legislatures to and for the protection of male legislatures.

As I mentioned just a moment ago in response to your question, and the same as in the Texas case, Mills v. Habluetzel, in Tennessee this is the only cause of action which is not tolled for the minor illegitimate child.

Every other cause of action will be... the period of limitations will be tolled and the child will be allowed to proceed after it reaches its minority.

The only apparent answer then, I think, is that in child support cases is concerned, and we've got to ask that why is it only in child support cases that we have the statute not tolled in Tennessee and I believe the response is, it's the legislature's intention to visit society's condemnation for the illicit relationship outside the bonds of marriage upon the child.

It's a statement of policy that we do not approve of you fathering children, or mothering children outside the bonds of wedlock and lacking an ability, perhaps, to punish either of the parents, the legislature determined that it's the child that should bear the brunt of society's disapproval.

All considered, then, I argue that the two-year statute of limitations cannot be justified as being substantially related to the state's interest in preventing stale and fraudulent claims and, in fact, even under the reasonable relationship test, there is no reasonable relationship... or reasonable support for the argument that the two-year statute of limitations is going to prevent stale or fraudulent claims.

One last point is that in a number of this Court's opinions, I've noticed references to a state has a right to make some legislation to take care of the problems, the difficult problems of proof in paternity cases, I think that's the way it's referred to.

I've, in the past five years, handled probably a little better than 2,500 paternity cases and I've failed to understand what the difficult problems in proof of paternity cases is really referring to.

In those cases where we're referring to the purported father having passed away, I acknowledge that there are some difficult problems of proof.

The man ought to be given an opportunity to come in and defend himself.

But where the man is around, there is only two people that know whether relations occurred.

It's the man and the woman and they're always going to be around in the context of the paternity case and it's the woman who has to prove her case.

She's got to prove by the greater weight of the evidence that this man is the father of the child.

If the passage of time is going to cause a likelihood that witnesses have disappeared, memories have faded, the same thing's going to happen to the woman.

And I've tried cases where 16 years after the birth of the child, the woman gets up there, she can't remember dates, times and places, and it affects her cases, it affects her ability to carry the burden of proof and it helps the defendant in his claim that he's not the father of the child.

So, the difficult problems of proof, I would argue, apply to the woman more than they do to the man.

Unidentified Justice: Doesn't the legislature, quite apart from the conduct of paternity suits, have an interest, or isn't it legitimate for the legislature to say we don't want that kind of a case to be tried 16 years after the events in which it happened.

Sure, it's going to hurt both parties, but the judicial determination on the evidence 16 years later is just not sufficiently reliable to allow the case to proceed.

Mr. Horne: Well, it would be as reliable and actually, considering HLA blood testing nowadays, it would be more reliable than an automobile accident or contract case that was brought by the child 20 years after the child was born.

Because the period of limitations in those cases would be 18 years plus the original period of limitations so the problem--

Unidentified Justice: That's an equal protection argument and you may well be right on that, but I think a legislature, or would you disagree with the observation of a legislature, if it acted even-handedly, could say that there are just some passages of time that are too long to allow for an accurate determination of facts.

Mr. Horne: --I would have to agree with Your Honor and make one exception and that's because of the statutory structure in Tennessee.

The legislature, having determined that it can be 18 years for a child who is or is about to become a public charge is determined at 18 years is not too long in Tennessee for the prosecution of paternity claims.

If the statute had been written, much as the Maryland statute was, I think at two years for a child, well, two years is too short anyway, I'd argue, but let's say it was ten years for a child who is about to become a public charge or who has never received welfare, so it's the same all the way across the board, I think my argument would be more difficult.

I would still argue that ten years is too short for the child, but Your Honor's point is, on the whole, accurate that a legislature does have a right to determine what period of time is just too long for a case to be prosecuted in the courts.

Unidentified Justice: Mr. Horne, can I ask you a question?

Mr. Horne: Yes, sir.

Unidentified Justice: Perhaps it's not appropriate, but I'm sure, you say you tried 2,500 of these cases.

Mr. Horne: Well, I've handled over 2,500.

I've specialized, of course in Tennessee we're not allowed to specialize, but I have specialized in the prosecution of paternity cases.

Not all 2,500 have gone to trial, but there's some weeks where I tried six, seven cases in the same week.

Unidentified Justice: Are these... are part of these for the welfare situation, or are they all private?

Mr. Horne: A large majority of them are, I'm on a contract with the state Department of Human Services to prosecute on a case by case basis cases that they turn over to me for investigation.

They just hand me a claim and allegation on behalf of the mother that the child has a father and this is the father and it's my obligation to locate the father and make the determination whether he acknowledge his child or not and if not, to prosecute the claim in court.

If, upon investigating the mother's claim, I find that there's a reasonable basis for presuming that the--

Unidentified Justice: I take it this is a fairly substantial percentage of the total number of such cases, or is it, I'm just not familiar with the volume of this litigation.

Mr. Horne: --Well in 19... my recollection is that Memphis, Tennessee has the highest birth rate per capita of illegitimate children, varying month to month, with Atlanta, Georgia.

We're sort of in a neck and neck contest.

[Laughter]

And in that respect, in 1975 when we started... 1976 when we started this program, we had 20,000 paternity cases backlogged on the welfare roles.

Unidentified Justice: I see.

Mr. Horne: So, my firm has handled a little better than 5,000 of those cases.

We've done more than any other group of attorneys put together, but it's still just a dent in the bucket.

Unidentified Justice: How many do you suppose there are in Memphis?

Mr. Horne: I've provided some statistics in the back of my brief indicating the percentage, I believe 51 or 53 percent of children born to black parents are illegitimate and something like 14 to 15 percent of children to whites are illegitimate.

The total number, I can't recall.

It seems like something like 16,000 in the state of Tennessee a year, but I can't recall.

It's a substantial and it's a growing, growing phenomenon, not only in Tennessee but across the nation.

The birth of illegitimate children has been on the increase throughout the last 20 years and the argument that was put forward in some previous cases that the state legislature can limit the period of proving paternity because a state has a policy of fostering family relations is just shown not to be true, that, in fact, family relations are breaking down.

We have more and more one parent families not only illegitimate but from marriages that are breaking up.

Unidentified Justice: Mr. Horne, in what percentage of the cases is the HLA test employed, in your experience?

Mr. Horne: In Tennessee, relatively few.

My guess would be maybe seven or eight percent at the very highest.

By and large, I have found that when I offer to a male defendant the opportunity for an HLA blood test which will show a likelihood that he is the father but at the same time not be admissible, he has no desire to submit to the examination.

Unidentified Justice: Who bears that expense in Tennessee?

Mr. Horne: Initially, it's the defendant's response, the court's, in response to the Connecticut case out of this Court, have held that where the defendant can show the court that he has no means of income, that he has no property and no ability to properly defend himself other than by using the HLA blood test, the circuit courts have been ordering the Department of Human Services to pay for the blood test for such a person.

Unidentified Justice: Is the expense very substantial in your state?

Mr. Horne: Four-hundred and fifty dollars in Memphis.

That's if you do not use the enzyme-protein, protein-enzyme testing.

The only lab we can use that type of testing in is Minneapolis and that's only proved of some benefit where the claim is that one of two brothers or an uncle and a father, or something like that, are potentially the father of the child and we're trying to eliminate which one of them might be and might not be.

Unidentified Justice: Isn't that a little out of line with the general expense over the country?

Mr. Horne: Some places it's $750.

Some places it's a little cheaper.

I think it is a little out of line.

The problem is we have virtually a monopoly in Tennessee.

There's only one lab now that will perform the HLA blood testing and Tennessee's legislature passed a law that said that blood testing must be performed in the state of Tennessee, has some logic behind it.

It's to make sure that you can get the doctor who performed the examination into court to testify as to chain of custody and all.

If you send it to California, you've got a chain of custody problem.

But if we were allowed to send it outside of the state, we could get it done cheaper and I think that if the legislature passes the bill that's before it now requiring the Department to pay for the test in all cases where you can order the man to and the woman to submit, that we'll be able to work out an agreement with the hospital to mass produce them at a much, much cheaper expense.

Unidentified Justice: Where is this lab?

In Memphis?

Mr. Horne: Baptist Memorial Hospital in Memphis.

There was a test being performed by Dr. James Mason at the University of Tennessee hospital but his primary responsibilities are the training and education of pathologists and he found that it was just taking up too much of his time to have to perform the tests, respond to attorney's questions and appear in court from time to time to justify his findings.

Unidentified Justice: Sound like you have a little state parochialism in Tennessee, isn't there?

Mr. Horne: We've had that for awhile, Your Honor.

[Laughter]

Thank you.

I'll reserve my time.

Unidentified Justice: Apparently they don't even need outside lawyers, do they?

Chief Justice Burger: Ms. Short.

ORAL ARGUMENT OF SUSAN SHORT, ESQ. ON BEHALF OF APPELLEES

Mr. Short: Mr. Chief Justice, and may it please the Court.

The appellant's challenge to the constitutionality of Tennessee's paternity statute and the two-year limitation limiting the opportunity to establish the duty of the father to support illegitimate children relies substantially upon this Court's recent decision in Mills v. Habluetzel.

I would point out to the Court that this is litigation between private litigants.

Mrs. Pickett and Mr. Brown have no relationship at all to the state.

The Attorney General of Tennessee has intervened in this action for the sole purpose of defending the constitutionality of this statute.

Under Tennessee law, when a state statute is challenged, a party is required to give notice to the Attorney General and the Attorney General then has the option of either defending the constitutionality of the statute or certifying to the legislature that he cannot so defend that statute.

We, of course, have chosen to defend the constitutionality of this statute, because we believe that, based upon this Court's analysis in Mills v. Habluetzel, that it is, in fact, constitutional.

Last year, this Court considered a one-year statute of limitations on the case of Mills.

That statute in Texas is substantially different from the Tennessee statute.

Tennessee statute which is challenged on this appeal provides that an action to establish paternity must be initiated within two years after the birth of the child.

There are several exceptions provided to this general two-year limitation.

These exceptions include if the father has acknowledged the paternity of the child in writing, the action may be brought at any time.

If the father has furnished support to the child, the action may be brought at any time.

Unidentified Justice: Would that be true, for example, if the father had made some small contribution to the child during its first year and then not again?

Would the statute be tolled during the entire minority of the child?

Mr. Short: Yes, Your Honor.

I believe that the Supreme Court of Tennessee in Reynolds v. Richardson addressed that issue.

They have stated that there need not be substantial or continuous support payments by the father in order to toll the statute under Tennessee law.

Unidentified Justice: It's hard to see how that furthers the state's goal then to eliminate stale claims if something like that could occur.

Mr. Short: I would submit, Your Honor, that when, in fact, support has been provided that there is a greater likelihood that you can produce additional proof other than the testimony of the parties.

There's likely to be a check, there's likely to be some receipts.

There's likely to be other witnesses who have evidenced this act on behalf of the defendant.

The other exceptions to Tennessee's general two-year statute of limitation include the public charge exception.

An action may be brought on behalf of any child under the age of 18 who is or is liable to become a public charge.

Also--

Unidentified Justice: In other words, the state has the statute of limitations, the period of limitations nine times longer than the mother has.

Mr. Short: --The state is allowed to bring that action as long as the child is dependant upon the state for support and that is 18 years.

That is during the minority of the child.

Unidentified Justice: Even though the mother... even though the child is dependant on the mother for support.

Mr. Short: No.

At that point, Your Honor, the state--

Unidentified Justice: No, in the mother's case however.

Mr. Short: --I'm sorry.

Unidentified Justice: I'm just drawing the parallel.

If the mother is supporting the child exclusively, she has two years.

Mr. Short: That's correct.

Unidentified Justice: So the state has nine times the length of time.

Mr. Short: That's correct.

Unidentified Justice: Do you think that's fair?

Mr. Short: Yes, Your Honor, I believe that there are differing state interests which compel the different limitations on these actions.

Unidentified Justice: Would that be true for the state, as well, if the period of time that the child was on welfare was very brief, the state would still have up to 18 years to bring an action?

Mr. Short: If, in fact, the child was on welfare, Your Honor, that action would be brought by the Department of Human Services at the time when they are on welfare.

After that time the mother can take advantage of the establishment of paternity that took place on behalf of the state in the interest of that child.

I believe it's necessary for me to clarify--

Unidentified Justice: What happens to the difficulties of proof argument where the state is involved.

Mr. Short: --Your Honor, I believe that counsel has acknowledged that there continues to be a difficulty of proof, notwithstanding the longer limitation of the state.

We submit--

Unidentified Justice: Why shouldn't it bar the state from suing then?

Mr. Short: --We believe that the state has a... that the state's interest in those actions where children are public charges is different.

Unidentified Justice: The state should be... you should be quicker to excuse the state in making a mistake?

Mr. Short: No, what we're saying, Your Honor, is that society--

Unidentified Justice: Well, the argument is that there's a great possibility of making a mistake after a period of time.

Mr. Short: --I believe that--

Unidentified Justice: Isn't that right?

Isn't that the argument against the mother?

This is liable to be an unreliable proceeding if you take too long to bring the suit.

Mr. Short: --That's correct.

Unidentified Justice: And yet that doesn't bar the state?

Mr. Short: We believe that society's interest in insuring that children are supported by those who--

Unidentified Justice: You can make all the mistakes you want to, but if the mistakes... the chance that the mistake is really existent, the state can nevertheless override it.

Mr. Short: --I think that in light of this Court's opinions with respect to the protection which must be afforded or defended when the state is a party clearly addressed the point which you've raised, Your Honor.

Unidentified Justice: In these cases, about 15 or 16 years later, is there a dispute over paternity or merely a dispute in most of them over whether the person should or can pay?

Mr. Short: The dispute is... the issue there is paternity, Your Honor.

Unidentified Justice: Beg pardon?

Mr. Short: Paternity.

Paternity is the issue.

Unidentified Justice: Well, do you know, has an examination been made of these records to find out in how many of those of cases had run a long time... ten, 12, 14 years, the real dispute is merely over the support and the ability to pay or whether there is a dispute over the responsibility.

Mr. Short: Your Honor, in the actions which I've had an opportunity to participate in, the denial is of paternity at that point and not of support.

I believe the issue of support arises only after paternity has been established.

I would like--

Unidentified Justice: Ms. Short, in your... going back to the question that we were addressing, under the Tennessee scheme, if the child received welfare for a brief interval, let's say in the first year, then goes off welfare, under the Tennessee scheme the mother has 18 years to bring a paternity action for the child.

Mr. Short: --I would submit to Your Honor that--

Unidentified Justice: Is that right?

Mr. Short: --during that one year period of time the state has likely established paternity at that time.

Unidentified Justice: Well, if that isn't done, as I understand the Tennessee scheme, the mother would then have the full 18 years in which she could bring the action.

Mr. Short: If the child is a public charge, yes.

Unidentified Justice: If the child was ever a public charge.

Mr. Short: Yes.

Unidentified Justice: And so the stale claim argument isn't made in those circumstances, and yet the circumstances are identical to the situation if she had never gotten welfare.

Mr. Short: Your Honor, we concede that the claims are just as stale when they're brought two years or 18 years.

We simply submit to this Court that the state has additional interests which must be served by a shorter period of limitation when these actions are between private litigants.

When the state becomes a party in these actions, then society is burdened with the support of these children.

We believe that society has the interest in allowing their public funds to be used for the public and not for the support of illegitimate children.

Unidentified Justice: Yes, but you've just acknowledged that it would be waived also for the mother if the state didn't bring the claim after the brief welfare episode.

Mr. Short: Your Honor, I find it hard to believe that if a mother is, in fact, on welfare within her first year, that paternity will not be established on her behalf by the Department of Human Services.

At that point the mother can then collect support based upon that prior establishment of paternity.

If I may, I'd like to address the tolling issue, which has been raised by appellant, both in his argument and in the brief.

Under Tennessee law, if a minor plaintiff in a paternity action has a child, she has until two years after she reaches her age of majority to bring that action.

Unlike the appellant's statement, this is not a statute which operates in favor of... against the interests of the child.

We attempt to protect the interests of minor plaintiffs by allowing them the additional time within which to bring those actions.

Unidentified Justice: But I think perhaps that argument was directed also to the independent right of the child to bring an action for support, or does Tennessee law recognize an independent action for the child?

Mr. Short: Under our paternity statute, Your Honor, the action to establish support lies with the mother, unless the mother is disabled or is deceased, at which time, the action may be brought by the child through a guardian or next friend or I would submit, if the action is not brought on behalf of the child during its minority, then he may bring that action thereafter.

Unidentified Justice: And in this case, was the mother the only person who could have brought the action at the time it was brought under Tennessee law?

Mr. Short: I think that under the facts, Your Honor, that the mother was not... the child was not a public charge and the mother, or her personal representative, could have brought this action on behalf of the child.

The child could not bring this action and I think the Tennessee Supreme Court acknowledged that in its opinion, determined that it was harmless error for the juvenile court to allow the amendment of appellant's petition in juvenile court... to allow the action to be brought on behalf of a minor child.

Unidentified Justice: Let's see if I understand this.

From what you've just said, the Tennessee statute is more restrictive than the Texas statute in Mills.

Mr. Short: No, Your Honor.

I think quite the contrary.

Unidentified Justice: Well, in this respect, the child can't bring its own action.

In Texas it could.

And the mother's posture sometimes can be in conflict with the child's.

Mr. Short: Your Honor, I find it difficult to imagine a situation where the mother would not be the proper person to bring the action to establish paternity.

Unidentified Justice: What if she may have a crush on the father and doesn't anticipate he's going to be a good boy after all and when he grows up he'll take care of the child and just not bring the action?

Mr. Short: Well, in those instances, I would assume that the mother is providing support for that child and perhaps the mother's affections for that father are that great you would think that he would also be providing support for that child.

So, the child's interests are being protected in that instance.

And that is our concern.

Unidentified Justice: May I repeat my observation.

I think your statute, in this respect, is more restrictive than Texas.

Mr. Short: Perhaps so, Your Honor.

I was not aware, based on this Court's opinion in Mills, that the child had the right to bring the action, but I assume that that provision of the statute which allowed the action to be brought by any person certainly could include the child.

We would submit that the mother is the proper person to bring an action to establish paternity and that she is in a better position than most to determine what is in the best interests of the child and whether or not paternity... the establishment of paternity is, in fact, in that child's best interest.

I think the facts of this case... the facts of this case are particularly relevant to this Court's decision.

The appellant Frances Pickett brought this action on behalf of her ten-year-old son.

The record will reflect that the defendant Braxton Brown had never acknowledged the child in writing, nor had he provided support.

He denied that he had ever had any relations at all with the appellant.

The child was not a public charge and yet the appellant sought to bring this action some eight years after the statute of limitations has run.

As appellant has acknowledged, there are difficult problems with proof, faded memories in these actions.

He's tried all of these cases and he's acknowledged that that is the one problem.

We submit that the two-year limitation is substantially related to the state's interests in avoiding the loss of memory and the loss of witnesses.

Unidentified Justice: Maybe this is just repetitive, but how can you make that argument if she could go on welfare and then the action could be brought tomorrow.

Mr. Short: I'm sorry, Your Honor.

Unidentified Justice: But how does that argument deal with the problem if she goes on welfare tomorrow, she could... you could then bring the action.

Why don't the faded witnesses... why isn't that problem still right there?

Mr. Short: I believe that the problem still exists.

However, what I hope to convey to this Court is that the state's interest at that point is superior to the interest of--

Unidentified Justice: The state's interest in getting some money is superior to the child's interest in establishing his relationship with his father.

That's your position.

Mr. Short: --The state's interest in insuring that these--

Unidentified Justice: Do I state it fairly?

Mr. Short: --are supported.

Unidentified Justice: What you're saying is that the state's interest in getting its money back is superior to the child's interest in establishing the relationship with his father?

Mr. Short: With respect to the stale and fraudulent claims, we would say yes, Your Honor.

We would also submit that there are additional interests of the state which must be considered by this Court.

As this Court has acknowledged this morning, the state also has an interest in limiting litigation, having litigation end at some point.

And we believe that two years is a reasonable time within which litigation should end in paternity actions.

Also, the state has an interest in the welfare of its children and we believe that two years... within two years the relationship which can be established between the mother and the child is significant.

If paternity is established within two years, the mother is then afforded the financial assistance which she can gain from the father of the child.

Thus, the child is... gets the benefit of those financial advantages.

In addition, the child is not forced to endure the emotional and psychological difficulties which are often associated with the illegitimate status.

We believe that two years is a reasonable time within which that relationship should be established and that that, in fact, is in the interests of the child.

I believe the Tennessee statute, based upon this Court's analysis in Mills, is reasonable.

In Mills, this Court stated that procedures by which illegitimate children are afforded in opportunity to obtain paternal support need not be coterminous with those afforded legitimate children.

This Court held that limitations on paternity actions would be upheld as constitutional if they are sufficiently long in duration to afford persons with valid claims a reasonable opportunity to assert them.

We believe that two years is a reasonable time.

This Court addressed several concerns which were raised by the Texas one-year limitation which we believe are alleviated by the Tennessee two-year limitation.

Within two years, a woman is likely to have sufficiently recovered from the physical and emotional difficulties associated with childbirth and be in a position where she can assess she and her child's situation reasonably and realistically.

Within two years after the birth of a child, a mother is not likely to endure the same financial difficulties which she may face within one year after the birth of the child.

It's not unreasonable to assume that within two years after the birth of the child the mother has returned to work and can afford to seek legal advice with respect to her responsibilities and obligations and those of the fathers.

We also believe that two years is a reasonable time within which to require the establishment of the relationship of the father and the child.

I also believe that Tennessee's two-year limitation addresses the practical obstacles which were raised by this Court in the concurring opinion of Justice O'Connor.

These concerns included the emotional and psychological difficulties.

As I've just stated, these are sufficiently alleviated by the two-year limitation and the financial difficulties which were raised by this Court.

We would also submit that the pressures from family and the community which may affect the mother's bringing an action within one year are sufficiently alleviated by Tennessee's statute.

I would submit that these pressures would bear more heavily upon a minor child than upon an adult.

Under Tennessee statute the two-year limitation is tolled for minor plaintiffs.

Thus she has two years after reaching her majority within which to bring those actions.

Counsel has alluded to the fact that his client is encouraged to seek welfare.

I would submit that it is not so easy to go on welfare, Your Honor.

I believe that the record before this Court will show that the plaintiff has substantial assets.

She owns property.

I believe that she earns approximately $1,000 a month.

It would be very difficult for her to qualify under the welfare laws.

We would also submit that the scheme of our welfare benefits... the scheme of our welfare system is such that we could easily detect any fraud which may be perpetuated or encouraged by these actions.

In summary, I would just like to state that we believe the Tennessee statute affords a reasonable opportunity within which persons with valid claims may assert them.

Further, that the two-year limitation is substantially related to several legitimate state interests.

These include the state's interest in avoiding stale and fraudulent claims; the state's interest in repose; and the state's interest in the welfare of the child.

The practical obstacles to bringing an action which were applicable to the Texas statute are not present under Tennessee statutory scheme.

We would submit that this Court should affirm the decision of the Supreme Court of Tennessee.

Chief Justice Burger: Do you have anything further, Mr. Horne?

ORAL ARGUMENT OF HAROLD W. HORNE, ESQ. ON BEHALF OF APPELLANTS -- REBUTTAL

Mr. Horne: Yes, Your Honor.

Respondent's last comment that it's not so easy to get on welfare, that's one of the amazing parts of our welfare system in this country.

All a mother has to do is, the simplest routine is to turn her child over to a welfare agency, say I can no longer handle or take care of my child.

She will be required by the courts to furnish support herself for the child but then the child then becomes a public charge.

Whoever takes custody, which could be a grandmother, will be able to receive welfare benefits and the child is thus eligible to pass over on the two-year statute of limitations.

On the question you asked, Chief Justice Burger, which was what is the real reason for the denial, is that paternity or support, in the vast majority of these cases, the issue is a man just doesn't want to be placed under a court order to provide support on a regular, weekly basis or semi-weekly or monthly, because he knows that if he fails to make his payments, he's subject to criminal prosecution and jail time and I really think--

Unidentified Justice: It's an economic question.

Mr. Horne: --In a vast majority of the cases, it's economic.

Counsel for the state argues that I have conceded that there are difficult problems of proof.

I do not by any means concede that there are difficult problems of proof.

My statement was I do not understand some of the references to it in the past, because if there are problems, the problems will belong to the mother more than they will for the man, and it does not lend to the argument that this two-year statute, in Tennessee at any rate, supports the state's intention of preventing fraudulent or stale claims.

The counsel argues, also, that if a woman gets on welfare that within one year, should she get on welfare for one year and then get back off, the child will become legitimate.

It normally takes the welfare department a year to prosecute their paperwork just to get it down to my level.

And if there's a denial of paternity, in Tennessee courts, it's taken five to eight years to get a case through the court which, although there's no written literature, I can refer the Court to to support that claim, it's from my experience.

And you've got to wonder, at the same time, if it takes eight years to get a case through the courts, it's going to get just as stale going through eight years.

Memories are going to fade during that eight year period just as much as they will if there were no period of limitations.

Unidentified Justice: Fading memories in an appellate proceedings are not very important.

It's at the trial level.

Mr. Horne: Yes, sir.

I'm talking about the trial level--

Unidentified Justice: You mean it takes eight years to get on to trial?

Mr. Horne: --To get into the Circuit Court before a jury, it takes five to eight years in the courts of Shelby County.

I think this, there's a reference in my brief, to legislative findings in the Congress of the United States that child support matters... child support matters in general are an area that the courts, judges and lawyers in this country cannot be proud of.

That this is an area that judges do not like to get into.

They hate to get involved in domestic squabbles about support and they do any excuse to continue the case and it gets put off.

We've got a rule in the Circuit Court of Shelby County that only so many cases will be heard per term.

What it amounts to is five paternity cases will be heard every two months for ten months out of the 12-month year.

And that's all they will hear, where we've got 2,000 to 3,000 cases backlogged before the Circuit Court waiting for jury trials.

Unidentified Justice: Would the equal protection problem be equally solved here by holding the Tennessee statute on 18 years unconstitutional?

Mr. Horne: I don't think... the state has a right to make a period of limitations and by the very nature of a statute of limitations, the period is left up to the discretion of the legislature and it is arbitrary and capricious by its very nature.

The legislature, having determined that 18 years is appropriate for support cases, is entitled to make that decision and I think the court's bound to stick by the decision.

The question is whether they can then limit it to two years for the very limited group that do not apply for welfare on the pretext that it prevents fraudulent or stale claims.

Unidentified Justice: Mr. Horne, maybe I missed it, but what statute of limitations would you be satisfied with?

Mr. Horne: Well, frankly, Your Honor, I would be satisfied with the period of minority plus the period after minority which would, in this particular case in Tennessee, be the age of 20 for the child, giving the child the right to, once he reaches 18--

Unidentified Justice: No, I'm talking about the mother.

Mr. Horne: --For the mother, 18 years.

Unidentified Justice: On what basis?

Mr. Horne: On the basis that--

Unidentified Justice: She reaches a certain age?

Suppose she's 55.

You don't think that's mature?

Mr. Horne: --Well, from the state's perspective, Your Honor--

Unidentified Justice: I thought the 18 years was because the child was not mature.

Was that the reason?

Mr. Horne: --I don't understand Your Honor's question.

I'm sorry.

Unidentified Justice: That you give a child two years plus 18 because an infant is not mature enough to maintain a lawsuit.

Mr. Horne: Yes, sir.

Unidentified Justice: Well, is that true of a 45-year-old mother?

Mr. Horne: Yes, sir, in a context--

Unidentified Justice: She's not mature?

Mr. Horne: --You mean a mother who gives birth to an illegitimate child?

Unidentified Justice: Yes.

She's not mature?

Mr. Horne: Your Honor, from the perspective of the state, there's two reasons for granting to the mother the right to make that important decision.

The first is that she will, as Your Honor indicates, have the capacity for maturity and the ability to make a judgment on behalf of the child which the child can't make.

And the second is that, and this is important, the second is that she will act in the best interest of the child.

And I think when either of those to premises is undermined, the right of the state to make the assumption that she is the best person falters.

Here, if Your Honor will take a look at the case of Reynolds v. Richardson, which is cited in both briefs, and is right on point, the mother in that case accepted a $500 payment from the father of the child in exchange for release of the child's right to legitimation and future support.

And, according to Pickett v. Brown out of the Supreme Court of Tennessee, that release is now effective.

She has terminated for $500 payment the child's right to support.

I would question, Your Honor, in response to your question, whether that is a rational decision, whether that decision is in the best interest of the child.

Unidentified Justice: I'm not talking about that decision.

Mr. Horne: And let's say that she was 45 years old.

Her interests are going to be still a fondness for the purported father, perhaps, a desire not to get into a conflict with him or his family by dragging him into court knowing that if she takes him to court that he's going to be subject to possible--

Unidentified Justice: I'm talking about this case.

I'm not talking about any case about somebody dragging somebody in courts, or any of your 2,500 cases.

Mr. Horne: --Yes, sir.

Unidentified Justice: I'm talking about this one.

Mr. Horne: In this particular--

Unidentified Justice: Why does this woman here, this mother, have 18 years to make up her mind?

Mr. Horne: --Well, Your Honor, she has 18 years because--

Unidentified Justice: Plus two.

She has 20 years to make up her mind.

Mr. Horne: --Well, I'm saying that she should, but she has only 18 years in Tennessee to make up her mind because if the child were a public charge, then that child would have 18 years to... she would have 18 years there to make up her mind as well.

If she applied for welfare on the 17th birthday of her son, the son would be entitled to have an action brought, either by her, or by any other person in the state of Tennessee and what you have is discrimination between what amounts to two sub-classes or illegitimate children.

You have illegitimate children on welfare and illegitimate children not on welfare and there's discriminatory treatment by the state of Tennessee.

This group is allowed to prosecute a claim.

This group is not and there's not a rational basis for that differentiation, let alone a substantial basis.

Did I answer your question?

Unidentified Justice: I heard what you said.

Mr. Horne: Thank you.

Chief Justice Burger: Thank you, counsel.

The case is submitted.