CLARK v. JETER

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ORAL ARGUMENT OF EVALYNN WELLING, ESQ. ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: We'll hear oral argument now in No. 87-5565, Cherlyn Clark v. Gene Jeter.

Ms. Welling, you may proceed whenever you are ready.

Evalynn Welling: Thank you, Mr. Chief Justice, and may it please the Court:

Cherlyn Clark filed a support complaint against Gene Jeter in 1983, on behalf of her daughter, Tiffany, who is 10 years old.

At that time Pennsylvania marital children to pursue claims for support against their parents at any time up until the were 18 years old, and in some instances, beyond.

However.

Pennsylvania limited the right of non-marital children to pursue claims for support against their biological fathers by the requirement that paternity actions be commenced within six years from the date of the child's birth.

In Pennsylvania, a support action can be begun, but if a putative father denies paternity, it cannot be continued until a paternity determination is made.

Gene Jeter raised, as an affirmative defense, the six-year statute of limitations in paternity actions.

This was an affirmative defense to show Ms. Clark's support complaint.

Over the objections of the six-year statute of limitations was unconstitutional, the trial court dismissed Cherlyn Clark's support complaint on the basis that the statute of limitations had passed.

While Cherlyn Clark's case was pending in the appellate court, Pennsylvania enacted an 18-year statute of limitations.

Both the intermediate appellate court and the Pennsylvania highest court have refused to apply the 18-year statute of limitations to Cherlyn Clark's complaint.

The first issue before this Court today is whether the federal child support enforcement amendments of 1984 require the invalidation of the six-year statute of limitations and require the application of an 18-year statute of limitation to Cherlyn Clark's complaint.

The 1984 child support enforcement amendments are part of Title 4(d) of the Social Security Act.

Each state that participates in the AFDC program is required to comply with Part 4(d).

The statute authorizes specific funding penalties for failure to comply with the child support enforcement amendments.

Unidentified Justice: Isn't that the way that one would normally enforce the statute then?

To tell Pennsylvania if their laws aren't in compliance, you cut off the funds?

Evalynn Welling: This Court specifically, in Rosato v. Wyman in another AFDC case, indicated that it is not necessary for a claimant, who has no normal route through an administrative appeal or no impact on the Secretary of HHS's decision to review for compliance and penalize the state, that in a situation like that the federal courts have the power to oversee the compliance of the state with the federal statute.

In this case--

Unidentified Justice: Was that a case involving the distribution of funds, where the claimant was asking for funds?

Evalynn Welling: --It was a case that involved an exclusion from benefits of some AFDC recipients on the basis of a state law.

Unidentified Justice: But what was involved were funds, part of which were federal.

Evalynn Welling: That is correct.

Unidentified Justice: And that seems to me different from the question that the Chief Justice was asking, because this is a case in which you are saying simply that a state statute on a procedural matter determining when an action can be brought under state substantive law is void because of a spending prohibition.

So I think Rosato is quite distinguishable as are the other cases you have mentioned in your brief.

Evalynn Welling: Perhaps a better response to that would be the case of Bennett v. Arkansas, which was very recently decided by this case.

That also was a Social Security Act case in which the federal law provides that social security benefits cannot be garnished or attached.

Arkansas had a state law which specifically said when a person who was receiving a social security benefit was incarcerated the state could attach the social security benefits essentially to pay for their upkeep while they were in prison.

In that case, this Court held that the federal... what had happened in that case to bring it to this Court was that the State of Arkansas went into a state court and attached the pension benefits.

And the pensioner raised as a defense to that attachment the fact that the state law was in conflict with the federal law.

And in that case, this Court held that the decision of the Arkansas court allowing this to proceed was reversed on the basis that there was a conflict between the Federal Social Security Act provision and the state law provision.

Unidentified Justice: There was no grant to the state of funds involved in Bennett.

That was a provision by Congress that said you shall not attach any of these benefits.

And the State of Arkansas says we think there is an implied exception to that.

But that wasn't a question of whether the Congress grant so much money and says, to be eligible for these you have got to have the following statutes in effect.

Evalynn Welling: The cases under the AFDC statute, starting with King v. Smith, have dealt specifically with the kind of problem that we have here where a person who is remote from the procedure which is brought to bring a compliance action depends upon the federal guarantees.

And in this case, Cherlyn Clark's case will go forward if the federal law is complied with.

The compliance under the statute is not required except after three years.

And the compliance may or may not deal with this issue.

If she... she has no direct remedy against the HHS to ask them, or make them bring a compliance case, and she has a real harm caused to her now while her child is growing up and needing the support, and the fact that the federal law is not being complied with.

Unidentified Justice: You still have a problem about retroactivity, don't you?

Even if you are right in a way, you have to say the federal law intended a later adopted state statute to be applied retroactively.

Evalynn Welling: In the situation--

Unidentified Justice: Is that right?

Is that right or not?

Evalynn Welling: --The retroactivity question is related to the fact that Pennsylvania only allows support to be granted from the date that a support complaint is filed.

So that at the outset it's clear that we're not dealing with a child who comes in now and asks for support back to the time that they were one.

This kind of situation that will be presented at this point is a situation where a child files a new complaint, or a child had a complaint that's ongoing at the time that the 18-year statute is compelled.

Unidentified Justice: Well, Pennsylvania here said that it wouldn't apply, the 18-year statute which has been adopted at a certain time, to this case.

Evalynn Welling: In this particular instance it is clear that the language of the statute comprehended this and included it.

They wanted... they said that the statute was to apply to any child at any time.

Unidentified Justice: Who said that?

Evalynn Welling: That's in the statute.

Unidentified Justice: In the Pennsylvania statute?

Evalynn Welling: No, in the federal statute.

Unidentified Justice: Well, that's what I... yes, so you do have to interpret the federal law to win on this particular statutory point.

Evalynn Welling: That's absolutely correct.

Unidentified Justice: You have to convince us that the federal law forbad Pennsylvania from refusing to apply the 18-year statute retroactive.

Evalynn Welling: That is the heart of this argument, Your Honor.

In this particular situation the statute of limitations as contained in the federal statute, the requirement of this 18-year statute is framed in mandatory language.

It is one of the four sections of 666 which is required on the states, but which specifically is not included in the number of requirements that a state is allowed to request a waiver from the Secretary of HHS.

So the structure of the statute underlines the fact of the mandatory and clear language of the statute itself.

For the statute to say it requires the state have in effect procedures which permit the establishment of paternity of any child at any time, the House report that accompanied the bill in the house talked about the fact that there were shorter statutes of limitations in the various jurisdictions.

Remember that this congressional decision to pass this statute follows hard on the heels of the Pickett v. Brown decision and the Mills v. Habluetzel decisions which had invalidated a one and a two-year statute of limitations.

That was in '82 and '83.

The congressional debate about this was taking place in '83, and specifically made part of that is the recognition that there are these shorter statutes of limitations out there.

The House report, talking about the 18-year statute of limitations, says,

"If a state's applicable statute of limitations does not permit establishment of a child's paternity past the child's second, sixth or other birthday, it will be impossible ever to establish support orders on behalf of a child past these ages, and therefore impossible to obtain support for them."

The legislative history here is clear that Congress was thinking about children who were already past the statutory limits in their particular states.

And that it intended by the broad comprehensive mandatory language of 666 to apply this 18-year statute to any child.

The Health and Human Services comment to the regulations is also helpful here, because it speaks specifically to this point.

It says, they are not going to promulgate regulations on this because,

"Since it is clear the case is previously closed because of a child age will now have to be reopened."

they found it unnecessary to promulgate regulations on this particular issue.

So it's clear also from the HHS gloss on this that everybody was thinking about the fact that this would apply retroactively to children who were already born at the time this statute was in effect, to children who may already have passed the statute of limitations if it were shorter in their individual jurisdiction.

Unidentified Justice: Did the court below us speak on the issue concerning the federal statute?

Evalynn Welling: In Clark v. Jeter, they did not.

In Paulussen v. Herion, which was remanded from this Court for the specific purpose of determining the applicability of an 18-year statute to Pennsylvania, which came down right around the time that Clark v. Jeter was being decided in the intermediate court, the Pennsylvania intermediate court said only that they viewed the federal child support enforcement amendments to be, 18-year--

Unidentified Justice: You are going to go on to your other points in due course.

Could I ask you first, did you present the statutory argument below?

Evalynn Welling: --Yes, we presented--

Unidentified Justice: And how did they rule against you without ruling on that point?

Evalynn Welling: --What happened was that the child support enforcement amendments were passed in '84, but they weren't implemented in Pennsylvania until '86.

So they were implemented while the appeal was pending.

At the oral argument... they were implemented while the appeal was pending.

They didn't come into effect in Pennsylvania until January of 1986.

Unidentified Justice: So you think they were entitled not to rule on your point?

Evalynn Welling: Oh, no, no, not at all.

Unidentified Justice: Well, they rejected it, didn't they?

Evalynn Welling: At the time of the oral argument, we asked for a remand, because this was an intervening factor while the litigation was going on, while the appeal was going on, we asked for a remand to the trial court, which is the normal procedure in Pennsylvania, for a decision on the applicability of the 18-year statute of limitations.

The court denied that at the same day they decided the case against us.

They had not allowed us to file briefs on this issue.

Unidentified Justice: Because this statutory argument, and if this had happened while the Petition to a cert was pending, we very well have remanded for reconsideration in light of a statutory argument.

Evalynn Welling: We, of course, raised this specific argument in the motion for reargument in front of the intermediate court, and again in our request for review by the State of Pennsylvania.

Unidentified Justice: I'm sorry to waste your time.

If this Court decides that the federal child support enforcement amendments do not require the invalidation of the six-year statute of limitations under the child support enforcement amendments, if this Court decides that the child support enforcement amendments do not require an 18-year statute to be applied to Cherlyn Clark's case so that her ongoing support case can now move forward, then the next issue that must be decided by this Court is whether or not--

--Must we take up the statutory issue, as you call it?

Evalynn Welling: Your Honor, I think so, yes.

Unidentified Justice: Is it purely statutory?

Aren't there supremacy clause overtones--

Evalynn Welling: Precisely.

Unidentified Justice: --and other constitutional aspects to it?

Evalynn Welling: That is precisely correct.

That this statute, the Pennsylvania statute as it's been interpreted by the Pennsylvania Supreme Court, is in conflict with the federal child support enforcement amendments.

And only if this Court does not reach that issue, then before this Court will be the question of the equal protection claim--

Unidentified Justice: Why do you say only if?

Evalynn Welling: --Well, if... because of the nature of Cherlyn Clark's case, she has a support complaint that's pending since 1983, and she has damages which are dating from 1983.

If this Court decides that the child support enforcement amendments do not compel and 18-year statute of limitations to be applied to her case, then she will be without remedy for all of the support in her ongoing support case?

Unidentified Justice: Why is that?

I don't follow that.

Evalynn Welling: Because she will be barred by the six-year statute of limitations.

Unidentified Justice: Yes, but if the statute is invalid on equal protection grounds--

Evalynn Welling: Correct.

Unidentified Justice: --why is that a barrier?

Therefore, I don't follow your "only if" argument.

Evalynn Welling: Maybe I should just restate it.

The six-year statute is clearly invalid on equal protection grounds.

This Court has repeatedly held that a classification based on--

Unidentified Justice: Before you get to the equal protection, let me ask you one more question about the statute.

Would it not comply with the federal statute for Pennsylvania to say today, well, we're wrong in saying the six-year statute bars the action completely, but we will now allow the procedure to go forward to permit the establishment of the paternity of the child, but now allow any retroactive recovery before the paternity is established?

Wouldn't that comply literally with the federal statute?

Do you understand my question?

Evalynn Welling: --Yes, I understand your question.

I think that if Pennsylvania said we will allow the paternity to be decided, then Pennsylvania procedure would carry the rest of the was, because once paternity had been decided her support--

Unidentified Justice: But that would be a matter of Pennsylvania law is what I'm... it would comply with the federal statute for them to say, well, I guess we do have to, in order to comply literally because the language is very strong as you say, they'll say, well, I guess we cannot apply our six-year statute to prevent you from establishing your paternity, but we may apply the six-year statute to prevent you from recovering any support money for the period before you establish paternity.

It seems to me that-would be consistent with the statute, and that wouldn't satisfy you.

Then you would still say, well, I guess I want to go ahead with my equal protection argument anyway.

Evalynn Welling: --That's correct.

Unidentified Justice: Yes.

Evalynn Welling: And the equal protection argument is based on the fact that there has been this differentiation between the rights accorded marital children as opposed to the rights accorded non-marital children in order to establish support against their parents.

This Court has frequently spoken of the problems that the historic discrimination against illegitimate children have caused and the belief that it's unfair to punish illegitimate children for the acts or the conduct of their parents.

Pennsylvania has justified this discrimination solely in terms of the desire to meet problems of state proof and fraudulent claims.

In Astemborski v. Susmarski, a case which was remanded from this Court in order for Pennsylvania to consider the six-year statute of limitations in light of the Pickett and Mills cases.

In that case Pennsylvania... the Supreme Court said very clearly that the reason for this six-year statute of limitations is only to prevent stale and fraudulent claims, that it's only a question of proof problems.

Nevertheless, in Pennsylvania, there are numerous paternity determinations which Pennsylvania allows now and has allowed in the past which permit paternity determinations to go on at any time after a child's birth without any worry on Pennsylvania's part about whether or not these present problems of state proof or fraudulent claims.

For instance, if a father wants to come forward and have a child's birth certificate amended to add his name, he can bring an action to do that.

It doesn't make any difference if the child is 17 or the child is 2.

If he wants to try to get custody of a child and he is--

Unidentified Justice: Can that be opposed by the child?

Evalynn Welling: --By the child?

Unidentified Justice: Yes.

Well, I mean there is no problem if nobody is worried about the paternity.

If the child wants to be declared a child of the father and the father wants it, I don't see why Pennsylvania would have any concern.

Evalynn Welling: That's correct, but it can be opposed by the mother, and that frequently happens actually.

Unidentified Justice: It can... I see.

Evalynn Welling: Actions for custody in which the mother has never acknowledged that this particular man is the father of the child, in those case, again, paternity actions are permitted in Pennsylvania without any statute of limitations.

Actions to deny--

Unidentified Justice: Excuse me.

What kind of a case is that now?

The father--

Evalynn Welling: --Where a father wants to sue for custody but his paternity has not been established.

And so in order to have standing to sue for custody and not be considered a third party, he needs to have a paternity determination.

Actions to deny paternity, these can go forward no matter how old the child is.

For instance, in the Connell v. Connell case that was cited in our brief, a father of a child denied paternity and had a litigation of it when the child was 12 years old.

Cases like this have had a special--

Unidentified Justice: --Had he been supporting the child up until that time?

Evalynn Welling: --He had been married and supporting the child.

Then the family split up.

He stopped supporting the child for a number of years, and then a support action was brought.

Unidentified Justice: So that would have been the first time the question of support was an issue.

Evalynn Welling: Yes, I believe that's right.

Unidentified Justice: Are there any cases to come down of what interests me in particular, is there any situation in which a living individual can be held by a court to have fathered an illegitimate child without encountering this statute of limitation?

Evalynn Welling: Living individual--

Unidentified Justice: Right.

Evalynn Welling: --can be held to have fathered a child.

Unidentified Justice: Right.

Evalynn Welling: In an action where the father is denying paternity--

Unidentified Justice: Right, right.

Evalynn Welling: --and in that situation, yes.

And that has the anomalous result that--

Unidentified Justice: It can?

How does that... the father is denying paternity.

Evalynn Welling: --Right.

Unidentified Justice: And you say you can get around this?

There is a situation where this statute would not apply.

Evalynn Welling: Right.

There is no statute of limitations that applies to a after of marital children who says that he wants to deny that these children are his after a support action is brought.

And the Pennsylvania Superior Court--

Unidentified Justice: Well, excuse me.

But he is not admitting, well, let's see.

He is willing to admit illegitimacy.

He is willing to admit that he has fathered illegitimate children.

No, he's--

Evalynn Welling: --No, he's saying this is not my child at all.

Unidentified Justice: --This is not my child.

Evalynn Welling: This is somebody else's child.

Unidentified Justice: Well, I am looking for... see, what I think may underlie the Pennsylvania statute is the severe personal, legal, social consequences of a person being judged by the court to be the father of illegitimate children.

Now, is there any situation in Pennsylvania where that can occur without encountering the six-year statute of limitations?

I think Pennsylvania might say this is a serious thing.

We want the proof to be fresh.

We want to be sure that the individual who is judged to be the father of illegitimate children has a good chance to prove that that's not true, and we think the evidence gets too stale for that purpose, at least, after six years.

Now, is there any situation... in your brief the only thing I see is after death of the putative father, the child can claim to be an heir, and short of have the individual declared the father of an illegitimate child after he's dead which--

Evalynn Welling: That's precisely right.

Even when the father isn't able to come forward and testify about events.

Unidentified Justice: --Yes, but also he can't be personally hurt as much, or personally vilified as much.

Evalynn Welling: Of course, his heirs are always concerned, and these are always in that context.

I would like to return to, though--

Unidentified Justice: Your answer to my question is no then, you don't know of any.

Evalynn Welling: --I believe that the statute of limitations not being applied to denial of paternity is really the same thing; just a mirror image of it.

And I would, if I may, like to point out an anomaly situation that that brings up, which is that if a father is allowed to deny paternity and have a determination that he is not the father... because he has been married to the mother... past the time, past six years, the putative father who has been married to the mother may get out of a determination that he is the father and he is no longer responsible for support for this child because there has been a determination, say when the child is 12, that he is not the father.

But now the mother is in the situation of not being able to bring an action against anybody else because of this six-year statute of limitations.

This Court has indicated in the Pickett decision that the existence of blood tests also further attenuate the concerns that a state may have for avoiding stale and fraudulent claims in this context.

And I would only point out that in Allegheny County we recently had in a rape trial the first instance of this genetic fingerprinting used in a trial.

The blood testing is getting ever more sophisticated and more valid, more reliable.

And again this takes away from the claim of the state that this six-year statute of limitations is necessary to prevent stale claims.

This is the third time that this Court has heard argument on this six-year statute of limitations of... Pennsylvania's six-year statute of limitations in which equal protection was raised.

And the cases continue to point out the kinds of reasons that people miss this statute, the kind of reasons that make this statute an extreme hardship.

Cherlyn Clark's case is a good example how she was misled, how she continued to believe, that she was afraid of Mr. Jeter for a long time, then was getting partial support payments from him.

Basically got to the point where she filed what she thought was a support complaint, but it turned out to be just a paper with the Welfare Department.

And by the time she got it straightened around, she was past the six years, past the time for filing her complaint.

Think about the mother who takes care of a child and is independent and not worried about support for the child who dies after the child is six, and the person who is a substitute caretaker has to take over the responsibility of caring for that child, or think about another client of mine who is married to a man and had two children.

They got divorced, and she and he later reconciled.

They had a brief reconciliation.

She conceived another child.

He came to the hospital for the birth of the child.

He had been paying support for the older two children.

He continued to pay support for awhile, and then he discontinued.

She finally decided that enough was enough.

She would have to file a support action.

And when she did, he denied paternity of the non-marital child, and she was past the statute of limitations.

Six years is the age when children also come to the time of going to school, and having themselves to fill out forms saying who their parents are.

And the cutoff point at six years also brings to an impossible... coincides with this time.

It's before the child really begins to worry about who their father is before they can begin to very strongly say to their mother, please bring this case.

And this cutoff operates to deny children a real impact on the decision of the mother not to pursue support for whatever reasons.

For this reason, the Pennsylvania court's decision should be reversed.

Chief Justice William H. Rehnquist: Thank you, Ms. Welling.

Mr. McClean, we will hear from you now.

ORAL ARGUMENT BY CRAIG A. MCCLEAN, ESQ. ON BEHALF OF THE RESPONDENT

Craig A Mcclean: Mr. Chief Justice, and may it please the Court:

As to Ms. Welling's retroactivity argument, the issue must fall even if the 18-year statute of limitations would have been held to be retroactive, or if this Court would somehow deem that it should be retroactive, it doesn't apply to the Clark v. Jeter case.

The reason it doesn't apply to the Clark v. Jeter case is that the 18-year statute was enacted two and a half years after Clark v. Jeter, the complaint was filed.

What's more, the 18-year statute was enacted after a final judgment had been rendered in this case.

I think we have to look at the Clark v. Jeter case, the Superior Court pronouncement--

Unidentified Justice: May I ask, what do you mean a final judgement?

This is still the same case, isn't it?

Craig A Mcclean: --Well, it is, but the court had, in July of 1985, rendered its decision in Pennsylvania.

That is a final judgment which an appeal can be lodged.

The case was over at that point.

Unidentified Justice: Yes, but if the Pennsylvania statute clearly applied and said it will be retroactive to all cases still pending in our Court, something like that, the fact there was a final judgment wouldn't make any different, would it?

Craig A Mcclean: Well, I think that that is true, but the Court did not say that.

The Court specifically--

Unidentified Justice: But what if the federal statute says that?

Craig A Mcclean: --Well, I don't think the federal statute says that.

Unidentified Justice: It says procedures which permit the establishment of the paternity of any child at any time prior to such child's eighteenth birth.

This is a child and it's prior to the child's eighteenth birthday.

Craig A Mcclean: Well, that's correct.

Unidentified Justice: So, literally this federal statute clearly applies, does it not?

Craig A Mcclean: Well, I don't think that the Pennsylvania statute does not follow the federal 1984 amendments.

I think that it does.

Unidentified Justice: Do you acknowledge that the Pennsylvania statute is in conflict with the federal statute?

Craig A Mcclean: No, I don't.

I think that it does follow the federal directive.

The reason why I say that it does is that for 19 years we have been examining these cases involving children of unwedded parents.

And the issue with respect to any means the difference between a legitimate child and an illegitimate child, not as in this case where there is a specific narrow holding that Clark v. Jeter was finished, it was done.

It was a case that has already been put to rest.

The differentiation isn't between case which have been put to rest and cases which still can be brought.

Unidentified Justice: You rely on the fact... you just don't rely on the retroactive point.

You rely on the fact that there was a final judgment here even though the case was still on--

Craig A Mcclean: That's correct.

I think we have to look at this case as it stands, as it is.

The broad brush that Petitioner wants to paint is too extensive.

Unidentified Justice: --Isn't the general rule that an appellate court looks at the law as of the time of its judgment rather than as of the time of the trial court's judgment?

Craig A Mcclean: Well, we have to go back to what statute was in effect at that time.

That is the relevant period of time.

Unidentified Justice: At the time of the appellate court.

Craig A Mcclean: I think that I should note that if Congress had wished that these amendments raise cases which had been put to rest, it should have said so.

It didn't say so.

It simply used the modifying word "any", and to construe that word to affect this case would be going too far.

Unidentified Justice: What you would say it means paternity of any child at any time prior to such child's eighteenth birth really means paternity of any child except those who have tried to establish their paternity up to now and failed to do so.

That's what you construe--

Craig A Mcclean: I think that's a reasonable interpretation.

Unidentified Justice: --What happens on the final judgment on appeal, if the final judgment is reversed on appeal?

Craig A Mcclean: What happens?

For instance, if the Superior Court had determined--

Unidentified Justice: I didn't say it's a final judgment, but it could be reversed on appeal.

Craig A Mcclean: --That's correct.

Unidentified Justice: So, in Pennsylvania is that a final judgment or not?

Craig A Mcclean: It is a final judgment with respect to what law applies to it--

Unidentified Justice: Not with respect to it.

Craig A Mcclean: --was, the final judgment was entered.

Unidentified Justice: With respect to this case, is it a final judgment before appeal?

Craig A Mcclean: Yes, it was a final judgment in July of 1985.

Unidentified Justice: And that's because of Pennsylvania law.

Craig A Mcclean: That's correct.

I think that we have to examine the--

Unidentified Justice: That was not an adjudication on the merits though.

Craig A Mcclean: --No, it was a... the hearing was held with respect to whether Gene Jeter was estopped from asserting the statute of limitations because of the particular circumstances of this case.

It was not a judgment on the merits.

There was no adjudication with respect to paternity, but it was an extensive examination with respect to those circumstances that surrounded the application of the statute of limitations.

I think that the Petitioner's reliance upon the Secretary of the Health and Human Services with respect to the retroactive application of the 18-year statute is misplaced.

We have to look to the Congress, and as I had said, if the Congress hasn't specifically required retroactivity, the Secretary of Health and Human Services can't in its regulations adopted pursuant to the amendments require it.

I should note to the Court that of the many procedures that were adopted in the 1984 amendments requiring compliance, it was only in this one instance that HHS decided to change the wording of what the Congress had enacted.

For those reasons, I don't think that the statute can be applied retroactively.

We have talked about the supremacy issue and whether the supremacy clause applies here.

The reason why the supremacy clause does not apply is that Congress, by its 1984 amendments--

Unidentified Justice: The supremacy clause always applies.

Your argument is that the Pennsylvania statute doesn't conflict with any federal enactment.

Craig A Mcclean: --That's true.

I would note that if this Court would say that Pennsylvania is not in compliance, the proper determination would be to remand.

As to the equal protection arguments--

Unidentified Justice: Wait, wait, wait, wait.

Craig A Mcclean: --Okay.

Unidentified Justice: You sort of abbreviated that argument.

I gather your contention is that even if this Pennsylvania rule is not in compliance with the federal statute, all that means is that Pennsylvania is not in compliance, and the federal government, if it wishes, wit hold funds from Pennsylvania; not that the Pennsylvania law is automatically amended to comply with the federal state.

Craig A Mcclean: That's correct.

Unidentified Justice: Because Pennsylvania is entitled not to comply with the federal statute if it doesn't want to so long as it understands that it doesn't get the money.

Craig A Mcclean: That's correct.

Unidentified Justice: Okay.

That's all very nice, but you tell me how someone in the position of Jeter is going to be able to require either the federal government to cut off the money, or Pennsylvania to shape up and follow the federal law.

Craig A Mcclean: Jeter is my client.

Unidentified Justice: I'm sorry, the putative child here.

Craig A Mcclean: I think the--

Unidentified Justice: The beneficiary of a program that was supposed to be run in a certain way by the state, but it hasn't been.

And the state just comes in and says, well, that's too bad.

I guess the federal government could have cut off the money.

Craig A Mcclean: --Well, I think it's incumbent upon the courts to direct that.

I don't think the remedy is within the individual person.

I agree with the Petitioner in that respect.

Unidentified Justice: But that's what they are... how do they get the courts to direct it?

Craig A Mcclean: Well, if the Pennsylvania statute is deemed to be not in compliance, Pennsylvania has to be given an opportunity, with respect to the King case and the Townsend case, to come into compliance.

One might be able to say why hasn't HHS cut of its funds.

I think that the procedure that this Court has adopted is to give Pennsylvania an opportunity to comply.

There has been no determination as of yet that they are not in compliance.

One has to react to that determination.

Unidentified Justice: What would you have suggested Ms. Clark do to get what she considered justice in the case?

Craig A Mcclean: She did apply for certiorari to this Court.

Unidentified Justice: Yes, but you are telling us we can't do anything.

We can neither command Pennsylvania to... you are saying we can't tell Pennsylvania to write its law properly, right?

Craig A Mcclean: I have said that that is the situation, that is true.

I think that--

Unidentified Justice: So what should she have done then?

Craig A Mcclean: --I believe I did say that she applied certiorari to this Court, and that the Court's response, if it sees that there is no compliance, is to give Pennsylvania the opportunity to amend its statute with respect to the 18-year statute of limitations.

Unidentified Justice: Oh, you acknowledge... I see.

You mean we can issue a judgment in this case.

What would the judgment would be?

Craig A Mcclean: Well, the judgment would be if--

Unidentified Justice: Tell Pennsylvania to amend its statute subject to being what, judged in default and losing its federal funds?

Craig A Mcclean: --Correct.

Unidentified Justice: We can issue that judgment in this case.

Craig A Mcclean: I think that you can remand to Pennsylvania to examine its statute to see that if it is retroactive to include Ms. Welling's client.

Unidentified Justice: Well, I guess we could also hold that the Pennsylvania statute violates the Equal Protection Clause.

Craig A Mcclean: That's correct, you could do that.

If the Court were to do that, what you would be focusing on is those kinds of impediments that the Court has looked at in the past.

In the Mills and Pickett cases, the Court examined those kinds of impediments that were related to the mother, the custodian, the guardian, the next friend not being able to go forward.

I think it's important to look at the particular facts of this case and see that the woman in this case was under no such impediment; that the birth-related impediments do not exist at six years.

And, further, with respect to the state's interest in avoiding fraudulent claims, Pennsylvania has specifically looked at cases such as this one where 11 years after the birth of a child the evidence is no longer available for the Defendant in this case to be able to adequately defend against this claim.

Unidentified Justice: Well, what about the new 18-year statute?

Craig A Mcclean: Pardon me, sir?

Unidentified Justice: What about the new 18-year statute?

Craig A Mcclean: Well, I think that those problems are prevalent there also.

Unidentified Justice: But the legislature has adopted it, and hence isn't very concerned with it.

Craig A Mcclean: Well, I think that we have to look at the motivating factors behind why that 18-year statute was adopted.

That 18-year statute was adopted to bring it into compliance so that--

Unidentified Justice: For money.

Craig A Mcclean: --Pennsylvania could receive money.

Unidentified Justice: Money.

Craig A Mcclean: That's correct.

Unidentified Justice: But the state interests certainly didn't counterbalance the money interest.

Craig A Mcclean: Well, I don't think we can compare the six-year statute against the 18-year statute.

The 18-year statute isn't at issue.

In comparing... balancing interest between the state and the claimant in this case, I think that Pennsylvania has opted for saying that the statute does not violate equal protection.

It is their determination in Pennsylvania that there is some importance to avoiding stale and fraudulent claims.

One of the things I would like to point out is that the woman in this case had specifically signed a document with the Department of Public Welfare where she did not give up her rights to lodge the claim herself, although she did assign the right to lodge that claim to the Department of Public Welfare.

What's more, the Department of Public Welfare... the women that had testified in this case stated that the records of the Department of Public Welfare were routinely purged.

My client in this case has no ability to go back some 15 years ago to examine the records in this case.

This woman in this case had named somebody else as the father of this child when the baby was born.

And it was only until five years later did she recant and choose to name my client.

I think that this particular case bespeaks the problems that are associated with avoiding state and fraudulent claims.

This woman on the stand had stated that my client had abused her.

My colleague, Ms. Welling, has misrepresented to this Court that that was the finding of the court.

If we would examine the trial court's finding, we would see that the trial court merely stated that Cherlyn Clark said one thing and my client said another.

Ms. Welling had also stated that there were partial support payments.

The court did not find that.

As a matter of fact, the court specifically put in quotation marks the term 25 within a 15-year period of time.

Ms. Welling has talked about the attenuated nature of blood tests.

If we examine what has occurred in recent past with blood tests, there is much talk these days regarding DNA fingerprinting.

What is before the Court in this case is the ABO testing and the HLA testing.

We don't have the DNA fingerprinting in Allegheny County, although I'd stated in my brief that I was unaware of any state within the United States that uses DNA fingerprinting.

I understand that Washington is now to some degree experimenting with it, but we don't use it in Allegheny County.

We don't use it in Pennsylvania.

Maybe some time down the road we will be at the point where a paternity can be an administrative hearing, but between the two footnotes to the Mills case where the paternity blood testing was discussed, those problems still exists.

And the problems are that if there is exclusion, there is a scientific fact.

If there is a paternity index in the absence of exclusion, it's merely a mathematical probability.

Again, the problem continues to exist.

The blood tests, as we go from a six-year statute even to an 18-year statute, become more of a problem.

The reason why they become more of a problem is that as the years pass evidence become less and less available to the defendant.

In the face of a blood test result that wouldn't change, it becomes more compelling or more prejudicial, if you will.

Unidentified Justice: How come the blood test results changed here?

As I recall at an earlier stage it had been determined that the blood test established lack of parentage, and then in the later test, it was--

Craig A Mcclean: I think you are thinking of the Connell case.

Unidentified Justice: --That was Connell?

Craig A Mcclean: Connell was cited in Petitioner's brief.

Unidentified Justice: How long ago was that case?

Craig A Mcclean: Connell was 1984.

In the Connell case, I'd like to address the Connell case if I can.

Petitioner has stated that Pennsylvania exists and somehow treats illegitimate children differently from legitimate children routinely.

In the Connell case, in those other cases that deal with married parents raising the issue of paternity, they do so in a circumstance where a woman would claim support for the child, and there would be a mere answer, a denial of paternity.

The question at that point is ordering of blood tests.

There is no specific limitation on the ordering of blood tests in Pennsylvania.

In the Connell case, what happened was that two boys were at issue initially.

One was excluded; the other wasn't.

What happened then was the support case didn't go on.

We can only assume that the parties reconciled.

Some years later the blood test again was requested, and the blood tests were not allowed.

Mr. Connell lost this case.

And in the other cases that are cited if we would look at those, what Pennsylvania does, because in the case where we are dealing with married people, you don't get to the paternity statute.

What Pennsylvania does is it puts--

Unidentified Justice: You don't, but the effect... surely, the effect on the woman in that case is just as horrendous as the effect, if not worse, than the effect upon the man in a paternity case.

You are saying in those cases the woman, if the father establishes non-paternity, is in effect judged to have committed adultery and had these children as a result of an adultery relationship, right?

Craig A Mcclean: --That's correct, but I'm going--

Unidentified Justice: And you say that can be done at anytime up until the--

Craig A Mcclean: --I didn't say that.

I was going to get to the point--

Unidentified Justice: --Is there a six-year statute on that?

Craig A Mcclean: --What was specifically stated in the Petitioner's brief was that provided that the putative father is not barred by laches or estoppel, and in each one of these cases the father was barred by laches or estoppel prior to the period of time that would have been represented by the six-year statute.

In the specific case, seven years later when Mr. Connell came in again, the court said, you waited too long.

And in the uniform... the Uniform Blood Testing Act that Pennsylvania has adopted, it specifically states that blood testing should be done as soon as possible after the birth of the child.

Unidentified Justice: But now, wait.

That laches defense, I assume that means that the father had reason to know of the illegitimacy of the children, and did nothing about it for a lengthy period, so that's laches.

But you acknowledge that--

Craig A Mcclean: No, this is not illegitimate... this is between wedded parents.

Are you speaking with respect to the child who has--

Unidentified Justice: --He is disclaiming paternity of the children.

Craig A Mcclean: --Fine.

Unidentified Justice: Okay?

Craig A Mcclean: Correct.

Unidentified Justice: So that child would not be a child of the marriage, right?

Craig A Mcclean: Correct.

Unidentified Justice: The child would be an illegitimate child.

Craig A Mcclean: Correct.

Unidentified Justice: Correct?

And you acknowledge that you can bring such a suit beyond six years so long as there is no laches.

But laches would consist of knowing of the adultery well within an earlier period and not doing anything about it.

You have accepted the child as your own.

But that won't always be the case.

What if the father finds out about it when the child is 16 years old?

It's the first time he has ever known that this child was not legitimate.

Then brings a suit saying I don't want to support this child.

You acknowledge that in effect that suit goes forward and the woman can be publicly convicted of having had the child illegitimately as a result of an adulterous relationship 16 years after the fact, and Pennsylvania doesn't care about that.

Craig A Mcclean: That's not true.

The cases that are specifically cited by the Petitioner favor my client.

I mentioned laches and I mentioned estoppel.

Pennsylvania specifically looks at instances where men have been living in a situation where they are married, whether they have known about it or not known about it, and have supported the children for a period of time.

What we have to do is we have to look at what is in the nature of a defense when the issue of paternity is raised.

Marriage certainly is the counterpoint to... in the illegitimate situation between unwedded people, the access, non-access, the continuing relationship.

That's why in Pennsylvania what we say is that there is a rebuttable presumption of paternity in the case where people are married.

That's how we treat it differently.

But to say that Pennsylvania does not post any barrier to a wedded parent as opposed to an unwedded parent is not true.

So too with respect to the case where the unwedded father can lodge an action.

The case had risen because the unwedded father not being the custodian, not being the guardian, not being the next friend, could not come into the court under the paternity statute and establish the paternity for the ability to have some kind of visitation rights, or to establish inheritance rights.

What happened in the Mengel case that Petitioner raised was that the Pennsylvania Superior Court gave the father the rights to come in under the Pennsylvania Declaratory Judgment Act.

There are no prohibitions in Pennsylvania whatsoever to say that this man has to do... cannot do this, excuse me.

There is no prohibition in Pennsylvania that the man has to come in with a certain... excuse me.

In Pennsylvania, that man must come in within a certain period of time.

There are no cases which say to the contrary.

I think that we have to pay strict attention to the particular facts of this case.

The particular facts of this case show that, in this equal protection setting, the woman's rights are well taken care of.

And in the face of the Defendant's ability to lodge a defense, the records are not available.

She named someone else as the father of the child.

The equal protection argument must fall.

If the equal protection argument, if this is found to be unconstitutional, it affects Gene Jeter in this case.

Because of the 18-year statute of limitations, I think what occurs is that other children that have not lodged a claim are not estopped from coming to the court.

What happens is in this case that there is a final judgment and the statute of limitations, as previously existed, has to apply.

The last argument, the due process argument, as a matter of procedural due process the Ferry and Martinez cases control.

The state statute is not wholly arbitrary or irrational.

I think that in looking at the statute of limitations, one can't say that Pennsylvania cannot have some statute of limitations at all.

And apart from that, the ability of the child to get into court in Pennsylvania can be achieved through the custodian, the guardian or the next friend.

And for those reasons, the due process argument must fall.

If we look at this case as a whole, I think that one has to examine that the retroactivity issue must be found in Gene Jeter's favor; that the equal protection argument must fall; and that the due process argument must fall.

If there are no further questions.

Chief Justice William H. Rehnquist: Thank you, Mr. McClean.

Ms. Welling, you have three minutes remaining.

Evalynn Welling: I have no rebuttal.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Ms. Welling.

The case is submitted.