Cases by Issue - Rights of Illegitimates

Miller v. Albright - Oral Argument

Fri, 09 Jan 2009 14:50:03 +0000

Case:

Miller v. Albright

Media File:

96-1060_19971104-argument.mp3

Related Transcript:

1997_96_1060_argument.xml

Transcript:

Argument of Donald R. Patterson

Chief Justice Rehnquist: We'll hear argument next in Number 96-1060, Lorelyn Miller v. Madeleine K. Albright.

Mr. Patterson.

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

The Court granted certiorari in this case on one issue only, whether the gender discrimination provisions in 8 U.S.C. section 1409 violate the Constitution.

The court of appeals felt that this Court's opinion in Fiallo v. Bell was a controlling precedent.

It is our position that Fiallo can be distinguished, but that if the Court feels that it applies, that Fiallo is out of step with the Court's more recent decisions that refuse to sanction official actions that close a door to opportunity based on overbroad generalizations concerning the abilities, or personalities or such, of males and females.

The Immigration & Nationality Act draws some clear distinctions between the naturalization of an individual about whom alienage is not in dispute and those persons who are citizens at birth.

Naturalization is the conferring of nationality of a State upon an individual subsequent to their birth.

Persons who are born overseas to a U.S. citizen are citizens and nationals of the United States at birth.

Unknown Speaker: Am I right, Mr. Patterson, in thinking that your client has never set foot in the United States?

Mr. Patterson: My client has set foot in the United States, in fact is presently in the United States, but not at the time that this case was filed and originally came forth, Your Honor.

Unknown Speaker: Thank you.

Mr. Patterson: Unlike the person who is seeking naturalization or immigration, Ms. Miller seeks to establish her citizenship by virtue of her birth.

The deference accorded the Congress power over admissions of aliens is inapplicable in dealing with a situation where someone claims citizenship from birth, and we feel there is a clear distinction here, that she has been denied her equal protection rights, and she seeks a finding that she is a citizen at birth, and thus Fiallo can be distinguished.

Unknown Speaker: But how do you say Fiallo is distinguishable in that regard?

Mr. Patterson: Fiallo dealt with a situation where there was no question concerning the alienage of the persons involved.

In this case, we claim that my client should have been entitled to citizenship at birth, and therefore it is not an immigration matter but a citizenship matter, and could be distinguished on that basis.

Fiallo could be left to apply in cases in which they were purely immigration.

This case is not so much based on the immigration powers of Congress as it is upon the gender discrimination that is established in this provision.

Unknown Speaker: But you have to have a part of a law of Congress declared unconstitutional in order to establish your client's citizenship, do you not?

Mr. Patterson: That is correct, Your Honor.

We feel that--

Unknown Speaker: You say there's no deference to Congress in this respect?

Mr. Patterson: --Your Honor, while the Court gives deference to Congress in many areas, the Court has held that it does not... deference does not mean abdication, and that if a statute is violative of the provisions of the Constitution, then that statute cannot stand.

Unknown Speaker: Yes, but I think some of... there's language in some of our cases that say in the field of immigration and nationality we give extraordinary deference to what Congress has decided.

Now, you're saying, I guess, that when you're talking about nationality as opposed to immigration the Congress gets no special deference.

Mr. Patterson: I think Congress always gets a certain amount of deference, Your Honor, in any case, because I think the Court normally approaches that they are... Congress is entitled to do what is within its realm, but if it violates... if it provides a provision that deprives people of the equal protection of the Constitution, then that statute cannot stand, and dealing with--

Unknown Speaker: May I just interrupt with a question?

I'm not sure I understood.

Are you saying there is a constitutional entitlement to citizenship at birth?

Mr. Patterson: --There is not a constitutional entitlement of citizenship at birth unless you are born in the United States.

Unknown Speaker: Okay.

Mr. Patterson: However, the Congress has created a statute which provides that children of U.S. citizen parents are entitled to citizenship at birth, but then they have in effect taken away that right as to those children who are illegitimate in that section 1401 establishes a broad general statement that all children born to U.S. citizen parents in the world are U.S. citizens at birth.

Then in 14--

Unknown Speaker: Well, let me just interrupt with a simple question to be sure.

Would it be constitutional for Congress to pass a statute saying that any child born abroad of American parents shall become a citizen at the age of 10, regardless of who the... which parent was the... the male or female parent?

Mr. Patterson: --I think it would be.

Unknown Speaker: Okay.

Mr. Patterson: The Congress has tremendous powers.

Congress probably could decide--

Unknown Speaker: Okay.

Mr. Patterson: --that no one born outside of the United States was a citizen.

Unknown Speaker: All right.

Mr. Patterson, on that line, you don't take issue with Judge Wald's statement, do you, that I see no problem with the requirement that a U.S. citizen parent take some action to acknowledge parentage or responsibility for a child before the child reaches age 18?

If... suppose Congress said, mothers, fathers, they're both parents, and if a child is born abroad, one of them has to say, I will take responsibility for this child till she's 18.

Mr. Patterson: I would have no problem with that, Your Honor.

However, that's not what Congress has done.

Congress on the one hand has established a situation where the mother has to do nothing except be the mother, and her children become a U.S. citizen.

But then it has placed very strict requirements on a father for his children to become a U.S. citizen.

Unknown Speaker: Well--

--It's interesting, is it not, that from 1790 till 1934, there was, as I understand the statutes, no way that a mother could fit under them.

It all depended on fatherhood.

Mr. Patterson: That is my understanding, Your Honor, and as to children born prior to 1934, it's only been recently that Congress has gone back to correct that situation.

Unknown Speaker: So that was unconstitutional, from--

Mr. Patterson: Sir?

Unknown Speaker: --And that was unconstitutional, from 1796 to whatever?

Mr. Patterson: I feel that under the present interpretations of the Constitution, that it would be found to be unconstitutional.

Unknown Speaker: We're talking about 1790 to 1934, and under the precedent that then existed--

Mr. Patterson: Under the precedent that then existed, I would assume that it was not unconstitutional, but I feel that under the precedents that exist now, it would be considered unconstitutional.

Unknown Speaker: --I see.

But you're still talking about the same Constitution.

Mr. Patterson: Yes, Your Honor.

[Laughter]

Unknown Speaker: Mr. Patterson, you mentioned a moment ago that the way you view the relationship between 1401 and 1409 is that 1401 first provides citizenship on individuals like your client, and then 1409 in effect takes it away, but that does not seem to me a fair characterization of the statute, because 1409, in its subsection (a) seems to me to make it pretty clear that 1401 simply does not apply to individuals like your client in cases of illegitimacy unless certain conditions are satisfied, so I don't see how you can start your argument by assuming that 1401 gives you something which is then taken away on a disparate criterion.

Mr. Patterson: Well, Your Honor, we feel that 1409 as it exists now is an unconstitutional discrimination based on gender, and--

Unknown Speaker: Well, that's the... maybe I misunderstand you, but I think that's a separate argument.

I thought you... the question was, you know, how do you get into court in the first place, and you say, well... or I guess the question was on deference, and you say, well, the deference issue is different here because my client in effect is given citizenship to begin with, so that she starts as a citizen claimant in a way that the other plaintiff did not.

But it seems to me that if your reason for that is the provision of 1401, your argument fails, because 1409 says 1401 doesn't apply unless you meet these conditions.

Mr. Patterson: --Your Honor, basically, though, 1409 we view as being a gender discrimination issue, and that in this situation, that if it did not apply my client would be, under the general terms of 1401, a citizen, and we feel that there is a distinction between a situation where someone is purely an alien, no question about it all, of their alienage, and a situation where there is a relationship, a tie to the United States through a citizen parent, and that the rules as to the citizen parent should be the same whether the parent is a woman or a man.

Unknown Speaker: Let me interrupt you there, because is it not the fact that most of the cases we're concerned with probably are illegitimate children of service people abroad, and isn't it also a fact that the vast... maybe not the vast majority, but the preponderant number of those would probably be of a male parent rather than a female parent?

Mr. Patterson: Well, Your Honor--

Unknown Speaker: And isn't it also true that at the time of birth, when it's a female parent there's no question about what's going to happen to that child, whereas at the time of birth of a child of a male parent by a female alien, when the male parent may not be on the spot at all, or even within the general area, there are a lot of questions that have to be resolved in the future?

Mr. Patterson: --All right.

There are some questions, Your Honor, but my understanding is that statistically there are more female U.S. citizens abroad than male U.S. citizens.

I do know that within the Armed Forces that now the percentage is somewhere like 13 or 14 percent of all the Armed Forces are now female.

Unknown Speaker: Right.

Mr. Patterson: So while we may have had a problem with one situation in the past, I think the situation is... has the potential to change.

Unknown Speaker: Well, but 13 percent is quite different from 87 percent.

Mr. Patterson: Right.

That is correct, Your Honor, but I think that also the question or the issue we have here is that the requirements are placed on the male to do something.

All that the woman has to do is be the parent.

Unknown Speaker: That's right, and... which is established at the moment of birth, no matter where the birth takes place, if there's any hospital record to establish--

Mr. Patterson: Right.

If there's any hospital record--

Unknown Speaker: --With regard to the male parent, there are a lot of questions that are unanswered at the time of birth.

Mr. Patterson: --But there... the answers as to the male parent can be established with modern technology.

The--

Unknown Speaker: They cannot be established as promptly in the routine case as they can with regard to the woman, if you're talking about situations abroad where personnel are transferred from location to location within 6-month periods.

Mr. Patterson: --That is true, Your Honor.

However--

Unknown Speaker: Servicemen being overseas and shipped back to this country.

Mr. Patterson: --Right.

There are potential problems, but the problems can be dealt with.

We feel that the only requirement should be that there be proof submitted that this is the child of a U.S. citizen.

Now, what that proof may be, because there's--

Unknown Speaker: Would you say that it would be fair to say the proof must be submitted within 36 hours after birth, and if you treat both sexes equally, the only requirement is that parentage must be established within the first 2 weeks after birth?

I think--

Mr. Patterson: --I think--

Unknown Speaker: --you'd have many, many children of male, unmarried parents who would not be able to comply with that requirement.

Mr. Patterson: --That is correct, Your Honor, and I feel that while there have been some other areas where this Court has determined that it is not necessary to have an immediate determination of the parentage of a child for the child to ultimately be able to proceed in terms of inheritance and this sort of thing, in a sense this is an inheritance.

This is an inheritance of a citizenship, and we would like to see the tables leveled as to both the male and female as to what takes place.

Unknown Speaker: But only in one way, only in one direction.

Let me ask you this.

Does your client have standing to assert the father's gender discrimination claim?

Mr. Patterson: Your Honor, we feel that she--

Unknown Speaker: I hadn't thought so.

He was in the case at one point.

Mr. Patterson: --Right, Your Honor, and the Government in a motion said that the rights and benefits of U.S. citizenship he already enjoys simply have not been injured by the denial of Lorelyn Penero Miller's application.

The rights, if any, which have been injured are those of Lorelyn Penero Miller, the true plaintiff in this action.

And so while he was in the case the Government--

Unknown Speaker: Well, the short answer is, the father is no longer before us, is that right?

Mr. Patterson: --That is correct, Your Honor.

Unknown Speaker: And does this petitioner, can she... does she have standing to raise any claims that he might raise on gender discrimination?

Mr. Patterson: We feel that under the criteria that the Court has set out for third party plaintiffs to proceed are based on third party claims, that there has to be an injury, which there is, there has to be a relationship, which there is.

The only issue that the Government has raised in its brief is the issue of a hindrance, and we would say that there is a hindrance created by the Government in their motion to remove him from the case, that they took him out--

Unknown Speaker: When the Government moved to dismiss the father and then coupled that with a motion to transfer the case from Texas to the District of Columbia, I assume that if the Government thought that there was no... well, what did the Government tell the district court in Texas about why the father had no standing?

Mr. Patterson: --Basically their argument in their motion, Your Honor, was as I said, that he had not made application for U.S. citizenship; he was not denied any rights; he had his citizenship; that the denial--

Unknown Speaker: Then the case got shipped to the district court in D.C.--

Mr. Patterson: --That is correct.

Unknown Speaker: --Was there an effort made by the father to appeal his dismissal from the case?

Mr. Patterson: No, Your Honor, there was not an attempt to appeal.

Unknown Speaker: Would there have been a... the problem of the transfer intervening, where would the father have brought that appeal?

Once the case is shipped out of the district court in Texas, they lose... that circuit loses authority over it.

Mr. Patterson: I am not certain, Your Honor, and I would think that that was... one of the factors that entered into us not appealing was the fact that it was moved to another circuit, that the principal issues were still before the court in the District, and we felt that we could go forward and proceed there, that--

Unknown Speaker: I'd like you to clarify one earlier point, because there were references to many, many qualifications, but I think... am I right about this... that you were relying at least alternately on the prior version of 1409, when there was no requirement of a written acknowledgement of support, when all that was required was an acknowledgement, a legitimation of the child by the father saying yes, I am the father.

There was not this additional requirement, as there is now, about a written undertaking to support.

Mr. Patterson: --That is correct, Your Honor.

Unknown Speaker: So we don't have before us the question of the residency requirement, because he satisfies that, so that's an academic question.

Mr. Patterson: Right.

Unknown Speaker: We don't have before us the written support obligation, because that wasn't required at the relevant time.

Mr. Patterson: That is correct.

Unknown Speaker: So it's only one--

Mr. Patterson: The only issue is the issue of the legitimation and my client, though subsequent to the age of 21, or that was required under the prior statute, went into court in Texas, filed a voluntary paternity... or her father, my client's father went into court in Texas, filed a voluntary paternity action, and was determined by the courts of Texas that he is the father of Ms. Miller, and ultimately, so far as Texas is concerned, legally his child and his heir.

Unknown Speaker: --I have one--

--You're relying here on the Fourteenth Amendment, which... you have the equal protection provision, which was surely directed most immediately not to sex discrimination but most immediately to race discrimination.

Now, Congress, however, under its immigration policies, can certainly discriminate on the basis of race, can't it, all the time?

I mean, it says, you know, you can immigrate if you're coming from Ireland, but not if you're coming from Italy or Greece, or whatever.

It's done this from the beginning.

That's national origin, which--

--Well, okay.

--is what the immigration act is all about.

Just a minute.

Let him answer Justice Scalia's question.

I'm sorry.

Consider it race, consider it national origin, whatever you want.

The two are--

Mr. Patterson: Well--

Unknown Speaker: --The two are closely allied, and--

Mr. Patterson: --Your Honor--

Unknown Speaker: --much closer to the Fourteenth Amendment than sex.

Now, how can it be that Congress can do that?

Could Congress say that the children of American fathers who are born in, let's say, Somalia can immigrate to the United States and be United States citizens, but those children of American fathers born in Ireland cannot?

Could Congress say that?

Mr. Patterson: --I am... my reaction is that whether Congress could do it or not, it would be wrong.

Now--

[Laughter]

My feeling, though, is that basically--

Unknown Speaker: Well, everything that's wrong is not necessarily unconstitutional.

I mean, that's--

Mr. Patterson: --But basically, Your Honor, I think that the issue here has to do with the cases, and... such as Mississippi University for Women, et cetera, where they have said that distinctions based on gender have to--

Unknown Speaker: --Mr. Patterson, may I just vary my colleague's question and say, suppose Congress said that the children of citizen fathers... citizen fathers who are Caucasian are citizens at birth, but that children of citizen fathers who are not Caucasian, people born in the United States, fathers born in the United States but not Caucasian, the children of those fathers born abroad shall not be considered citizens at birth?

Mr. Patterson: --I think, Your Honor, that if we take the Government's argument, accept it in toto, Congress could do that.

We feel that would be wrong, and we feel that it is wrong--

Unknown Speaker: I don't think that's the Government's argument at all.

They have not argued that would be rational.

They have argued there's a... there are good reasons for the distinction in this case, and your suggestion is there's no justification for differentiation on the basis of the sex of the parent in... when there's an illegitimate birth.

That's really the question we have.

Mr. Patterson: --Your Honor, we feel that there is a matter of discrimination here based on gender, and we feel that if you take it to the logical extreme that the Government espouses, that the Court should defer to Congress' decisions in anything having to do with immigration, citizenship, et cetera.

If you take it to that... to the extreme, then the suggestion by the Justice would be permissible.

Unknown Speaker: But you surely don't have to take it to that extreme to try and figure out whether there is some sensible basis for drawing a distinction between a single parent abroad in the military... I think of the military because I know there are many, many cases that arise this way, when it's the mother on the one hand and when it's the father on the other.

It seems to me there are quite obvious differences, and I... at least justifying some differential in treatment.

Mr. Patterson: Well, I think that, Your Honor, basically the issue is one of who is entitled to citizenship at birth, and Congress has decided that as a general rule, anybody born to a U.S. citizen parent is entitled to be a citizen at birth.

Unknown Speaker: Any legitimate person.

Mr. Patterson: I didn't hear the question.

Unknown Speaker: I say, Congress has decided that any person born legitimately is so entitled.

That's as far as Congress has gone.

Mr. Patterson: Well, they then have decided that any person who is born illegitimately to a mother who is a U.S. citizen is a citizen at birth.

The only distinction that is--

Unknown Speaker: Well, if the mother has lived in the country for a year.

Let me go to that point, because I wanted to ask you this question anyway.

Two of the Government's justifications for drawing the distinction that it draws are these.

One, there are differences in problems of proof, and your answer to that is, well, in this day of genetic testing, those problems really have evaporated, and I'll assume that for the moment.

The second major justification that the Government brings up is that there is a difference, depending on whether the single citizen parent is male or female, depending... which affects the likelihood of the attachment of the child to the country.

The Government says, look, most children stay with their mothers when they're young, just as a matter of fact.

That's the way it happens.

If, in fact, the mother is a citizen, then the child is likely to be in the company of an American citizen, and I suppose most American citizens tend to, sooner or later, come back to the United States, even if they were abroad at some point.

So the Government's argument is, the likelihood is that the child who is born to the female citizen will in fact, because of the mother's company and because of the mother's probable residence, gain an attachment to the United States, whereas that will not necessarily be so if in fact the mother is an alien and it's the father who in Justice Stevens' example comes back from the service assignment at some point.

Is there something unsound factually about the Government's argument, and is there something illegitimate, constitutionally, to the Government's argument?

Mr. Patterson: --All right.

Your Honor, on the one hand they talk about attachment, but there's nothing in the statute that requires any showing of attachment or the mother do anything, other than have the child.

If the mother had the child and abandoned it immediately, the child would still be eligible for citizenship regardless of whether--

Unknown Speaker: But the point is that as a generalization, the attachment will exist in the one case, and as a generalization it will not exist in the other.

Now, what's your response to that, that this is a--

Mr. Patterson: --I believe--

Unknown Speaker: --an unconstitutional stereotyping, or what?

Is it true or false?

Mr. Patterson: --I think, Your Honor, in other contexts the Court has said that you deal with individuals, not with generalizations, and while this may be true as a generalization, it is not true in all circumstances.

Unknown Speaker: Every law is based on a generalization.

You really want us to adopt the proposition that Congress cannot generalize when it makes laws?

Mr. Patterson: Obviously, Congress can to some extent, but where they discriminate against a group based on generalizations that are based on stereotypic, archaic ideas, then--

Unknown Speaker: It may not be archaic.

The... I think the classifications this Court was confronted with in the Frontiero case, in the Wiesenfeld... those weren't archaic.

They did represent the way the world was for most people.

Most men supported most women, and yet the Court did say that in this category sex discrimination, you could not rely on those generally true propositions.

Mr. Patterson: --I would agree with Your Honor on that.

Unknown Speaker: I did want to ask one question about this statute that does draw a distinction that's different for men and women.

That is, the very first requirement, that blood relationship between the child and the father be established by clear and convincing evidence.

Are you challenging the constitutionality of such a requirement?

Mr. Patterson: I think, Your Honor, that for anyone there would have to be some clear and convincing evidence that they were the parent, be it the mother or the father.

Unknown Speaker: But suppose the statute, all it said was that.

That was the only distinction that was drawn on the basis of sex.

It says, in the case of the father, the blood relationship must be established by clear and convincing evidence.

Mr. Patterson: I don't believe I would have any problem with that, Your Honor, because I feel that to me would be a prerequisite regardless, though it is not spelled out that there has to be clear and convincing evidence that the mother was the mother of the child for the child to be able to claim U.S. citizenship.

Unknown Speaker: I have one question, which is a very preliminary nature.

I take it as a general rule that if you're a person outside the United States you do not have capacity to sue for a violation of the Constitution, and this is... you say this is different because the claim at issue is citizenship?

Mr. Patterson: I feel that that is a distinction that could be drawn.

However, I think--

Unknown Speaker: I was just curious to know, do you have some precedent for that?

Mr. Patterson: --I have some precedents, and I was trying to find it, that the Constitution is not limited to the boundaries of the United States.

Unknown Speaker: But Rogers v. Belli, the Court said that foreign-born children of citizens have no constitutional right to citizenship.

We'd have to disavow that, wouldn't we?

It's limited at least to the soil of the United States and the blood of the United States.

I mean, you're either applying jurisdiction on the basis of territory or on the basis of blood, and--

--Let me put it--

--your client here is neither on the territory of the United States nor a United States citizen, so that you could say her actions are governed abroad by United States law.

Mr. Patterson: Your Honor, in United States, and I'm not sure of the exact pronunciation, V-e-r-d-u-g-o... U-r-i-q-u-i-d-e-z, at 494, 259, 278, in a concurring opinion, Judge Kennedy indicated that the Government may only act as the Constitution authorizes whether the actions in question are foreign or domestic.

Unknown Speaker: Yes, but you see, there there was a citizen... there was a person who was being tried in a United States criminal court, but here your client has never been in the United... for... just for our purposes, at this time the suit was filed was outside the United States.

Well, perhaps the Government will address that briefly.

I would like you to, because I thought Rogers supported you.

That is, I thought Rogers was a case where a person claimed citizenship.

He was wrong on the merits, but the Court permitted him to raise the claim.

Mr. Patterson: I think--

Unknown Speaker: Because had he won, he would have been a citizen.

Mr. Patterson: --Right.

Unknown Speaker: And there... so is... but don't say yes if I'm not right, because... because it won't do any good.

[Laughter]

Mr. Patterson: Well, I believe that is my recollection, but I... it's been a while since I have read that, but I do know that it raised the issue, and--

Unknown Speaker: So Rogers is the precedent, you say?

Mr. Patterson: --I believe so.

I'd have to check to be sure, Your Honor.

Unknown Speaker: And you're still relying on the third party standing that you cited Craig v. Boren, that if the beer seller could raise the boy's equal protection rights, then the daughter can raise her father's rights.

Mr. Patterson: Yes, Your Honor.

Mr. Chief Justice, may I reserve the rest of my time, if there are no further questions?

Unknown Speaker: You have no time left.

Mr. Kneedler, we'll hear from you.

Argument of Edwin S. Kneedler

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

The Naturalization Clause of the Constitution commits to Congress the power that is inherent in any sovereign nation to determine which aliens abroad will be granted United States citizenship.

As this Court said in the Ginsberg decision, no alien has the slightest right to naturalization unless all statutory conditions are satisfied, any by the same token, the Court has said in the Rogers v. Belli decision that was just cited, no United States citizen has a right to transmit citizenship by dissent.

Now, to be sure, where the interests of the United States citizen are properly before the Court, and in this case we suggest that they're not, but where they are, such as in Fiallo or Kleindienst v. Mandel, this Court has declined to hold that Congress' judgments in this area are wholly beyond judicial review.

Unknown Speaker: Mr.--

--Mr. Kneedler, why did the Government move to dismiss the father when he was in this case?

Mr. Kneedler: The motion to dismiss in Texas, there were really two grounds.

One was essentially, while couched as a standing ground was essentially a merits argument, and that is that his argument of gender-based discrimination was foreclosed by Fiallo v. Bell.

The Government also argued essentially that because the claim to citizenship was that of the petitioner here and not his own, that he effectively had no ability to insist that the Government confer citizenship on her.

That is more in the nature of a standing argument.

Now, again, in Fiallo, where the... there were rights of... both citizen plaintiffs and alien plaintiffs were before the Court, and the Court then, because of that presence, addressed the constitutional question because of the presence of the alien parent, even though the... I mean, the citizen parent, even though the citizen parent couldn't have required in a sense to have--

Unknown Speaker: If Fiallo was controlling, it should have been controlling on her claim as well as his, so it's a little odd that the Government moved only to dismiss him.

Mr. Kneedler: --The... it is--

Unknown Speaker: And not her.

Mr. Kneedler: --Well, it did... it moved to dismiss her also on a ground that she could not claim his equal protection rights.

Unknown Speaker: And third party standing.

Mr. Kneedler: Right.

Right.

Unknown Speaker: But the Government... if the Government's position was Fiallo v. Bell, then it's very difficult to understand why it didn't... they didn't do that across the board.

They chose to do it only with respect to the father and with respect to her said she has no third party standing.

Mr. Kneedler: Well, the Government certainly did argue that Fiallo was controlling across the board, but I think our... the point here is that whatever the label attached to it, the father was dismissed from the case, essentially rejecting his claim under Fiallo, and he did not appeal either from the Texas ruling at the time or from the final judgment at the time it was rendered in--

Unknown Speaker: But it is sort of ironic.

The Government argued he didn't have standing, it was her claim, and here you're arguing that she doesn't have standing, it's his claim.

Mr. Kneedler: --Right.

Unknown Speaker: That's a little hard to swallow.

Mr. Kneedler: I acknowledge that the standing argument in Texas may not have been properly couched as a standing argument.

The fact remains, though, that that is a past ruling in the case.

Unknown Speaker: May I ask just that you refer to the Texas proceeding?

What evidence was taken on the issue of parentage?

Was it just his testimony?

Mr. Kneedler: You mean in the Texas State court proceeding?

Unknown Speaker: How was his... how do we know he's the real father?

Mr. Kneedler: Well, the record in this case does not disclose what was before the Texas court at the time.

It's not clear that it consisted of much more than his statement that he is the father, but of course, under the immigration statute, and the naturalization statute we have at issue here, that's all that would have been required as well to establish paternity, given... in light of the 1986 amendments.

Prior to that time, he would have needed a formal legitimation such as the court decree here, but under the 1986 amendments all that was required was an acknowledgement before the State Department of his paternity.

Unknown Speaker: Mr. Kneedler--

--He had much more, though.

He is the... he has become a legitimate father, has he not?

Mr. Kneedler: As a matter of State law, yes.

My only point is that we have not acknowledged in this case that he has satisfied all the requirements as a matter of Federal law.

If the legitimation decree was... had been entered before she was a teen, or before she was 21 under the prior version of this statute, that official determination would have been controlling, but if that decree is simply relied on as evidence of blood relationship, then we do not think it is controlling on the State Department.

The State Department was not a party to that case, so insofar as she is applying on the basis of events that happened before age 21, or before age 18, we think she would have to carry that burden of proof before the State Department.

The State Department did not reach that question, as you pointed out in this case.

The basis for the State Department's rejection for a claim in this case was really the failure to establish the formal parent-child relationship prior to the age 18 or, under the prior statute, age 21, so really the issue before this Court and before the district court was whether Congress can properly impose a limitation of that sort on the time in which the father of a child born out of wedlock can take steps to legitimate the child.

Unknown Speaker: But then we take--

--Just before we get to--

--Yes.

I'm sorry.

Just one more moment on the standing and the transfer.

How would the father, or where would the father have appealed that dismissal?

The case had been transferred to the district court in the District of Columbia.

There was the father, left at the post back in Texas.

Where would he... where would that... his appeal go?

Mr. Kneedler: I think he probably could have done either of two things.

One would be to ask for a Rule 54(b) certification in Texas and taken immediate appeal then, perhaps, or, with the case transferred, once the final judgment was entered here, I assume that the father could have... that Mr. Miller could have appealed from the final judgment at that time.

Unknown Speaker: In the District of Columbia?

Mr. Kneedler: Yes, I think so.

I'm--

Unknown Speaker: Because my understanding was that once the case gets transferred, the transferor court loses authority over it.

Mr. Kneedler: --Right.

Yes.

No, I meant if a 54(b) certification or an interlocutory appeal request had been filed before the case was actually transferred, but... and he presumably could have requested the district court in Texas to say, before you actually transfer the case... I know that's what the Government has asked for, but before you actually do that, afford me the opportunity to take an interlocutory appeal, or appeal of the final judgment insofar as the case would... the decision would finally dispose of my claim.

But he didn't do that.

The case was transferred to the District of Columbia, and I don't think he would have been foreclosed from--

Unknown Speaker: You ordinarily would get 60 days if the Government's on the other side.

How much time did he have between when the case was ordered transferred and when it left Texas and went to the District of Columbia?

Mr. Kneedler: --I'm not sure of that timing.

I think that once there is the order of transfer, I think it would be entry of the order of transfer that would transfer it to the District of Columbia, but again, I don't believe that would have terminated his right to take an appeal, because--

Unknown Speaker: But it would have shortened what is the usual time one has.

Mr. Kneedler: --In Texas.

My point is that I think he was a party to this case when it was filed.

There was no final judgment.

Once the case got to the District of Columbia, I don't know a reason why he couldn't have appealed from the final judgment here.

The case was transferred along, I assume with all interlocutory orders that led up to that, and one of those orders was the dismissal of him as a party, so I think once the final judgment was entered here... this has not been an issue in the case, but that has been my sense.

Unknown Speaker: I don't want to delay you any longer in getting to the merits, subject to one question.

Rogers v. Belli, is that the precedent that we look to to see that this petitioner has standing to invoke the assistance of the Federal courts when she's... and of the Constitution when she is outside the jurisdiction?

Mr. Kneedler: No, I think it's not.

In Rogers, there was a situation where there was a conferral of citizenship subject to a subsequent loss of divestiture, on failure to satisfy conditions subsequent, so at that point we think that the person had her foot in the door, or his foot in the door towards citizenship, in fact was granted citizenship, and it was about to be taken away.

And this situation is very different.

The question is whether the petitioner is entitled to citizenship in the first instance and, as this Court pointed out many years ago in the Wong Kim Ark decision, the conferral of citizenship on anyone who is not born within the United States is an act of naturalization.

Whether that's done at the time of birth or whether it's done by procedures in the United States later, or whether it's done by categories in conquered territory or whatever, that is all an exercise of Congress' naturalization power.

Unknown Speaker: And she says she's a citizen by virtue of 1401, and you say well, that can't be until you knock out 1409, and you can't do that because--

Mr. Kneedler: No, we don't believe she could... that 1401 would grant citizenship at all, because 1409--

Unknown Speaker: --Well, I mean, that's her position.

Mr. Kneedler: --That's her position, but we think that's an incorrect interpretation of the statute.

1409 is the only subject... section of the act that deals with the subject of children born out of wedlock, and Congress... it was a very difficult subject for Congress to address in the Nationality Act of 1940 and ever since then, and there was considerable debate leading up to the passage of the 1940 act about how to deal with a situation of one citizen parent, one foreign parent, and in particular, how to deal with the problem posed where you had a child born out of wedlock where you have a U.S. citizen parent and an alien parent.

Unknown Speaker: Mr. Kneedler, do you... when this case began, at least, the petitioner here was outside the jurisdiction of the United States.

Do you take the position that she was a person within the meaning of the Fifth Amendment for bringing the equal protection kind of claim that she brings at that time?

Mr. Kneedler: No.

Our bottom line is that the Due Process Clause does not apply to her.

Whether that comes from interpreting the word person or whether it is just a broader consideration of the territorial scope of the Fifth Amendment, I'm not sure much turns on that, but in this Court's decision in Johnson v. Eisentrager, which was reiterated in the Verdugo decision, the Court said that aliens outside the United States have no rights under the Fifth Amendment.

Whether she has since come to the United States is irrelevant for these purposes, because--

Unknown Speaker: Didn't Johnson v. Eisentrager make a distinction between one who was an alien and, I think the words of the decision were, if a person makes a claim to U.S. citizenship, and distinguish the person who said, I'm an alien and would like the opportunity to become a U.S. citizen, and someone who was making a claim to U.S. citizenship.

Mr. Kneedler: --I believe that was with respect to access to courts, where another aspect of Johnson v. Eisentrager was whether habeas corpus jurisdiction would lie.

We're not suggesting that she has no right of access to the U.S. courts to make her claim.

All we're saying is that her claim fails on the merits because both, we think as an attribute of the sovereignty of the United States, someone outside the United States who is not a citizen has no constitutional right to claim it, but also because the Fifth Amendment, which is the clause of the Constitution on which she specifically relies, that that does not apply outside the United States.

Unknown Speaker: Mr. Kneedler, can I--

--Is there anything... I take it there's nothing peculiar about the equal protection nature of the claim that she's bringing that you invoke to support your position that she's not a person.

Mr. Kneedler: No.

Unknown Speaker: The reason I ask the question, I mean, under the Fourteenth Amendment it refers to the... to persons within the jurisdiction, so I suppose you would be making the argument, if this were somehow a claim against a State, that she would not, as an alien living abroad, be such a person for that peculiar reason, and that's not your argument.

Mr. Kneedler: Or in another State under--

Unknown Speaker: Yes.

Yes.

Mr. Kneedler: --Under the Fourteenth Amendment.

But we believe that aspect... and, again, it's an inherent aspect of the sovereignty of the United States.

The Constitution is a compact among the people of the United States, and Congress is the political branch responsible for determining who can be admitted and assume the rights and responsibilities of being a member of that society, so we think that this is a proposition that inheres in the nature of sovereignty, and is not trumped by the Fifth Amendment, particularly with respect to an alien abroad.

Unknown Speaker: Can I ask you a question on the merits?

Mr. Kneedler: Yes.

Unknown Speaker: I've two questions, actually, on the merits, and what I'm thinking of is not the problem of proving paternity.

I'm assuming that out with genetic testing.

Perhaps it's the same.

Assume that's so.

You have a separate argument that I think Justice Souter addressed earlier, and it's on pages 25, 26, 27, 28 of your brief, and basically you're arguing, I think, that there is more likely to... you want a substantial tie with the parent.

Mr. Kneedler: That's correct.

Unknown Speaker: A substantial tie, or something like that, a personal tie, and that's more likely to be there in the mind run of cases with the mother than it is with the father, and that's why we need the extra proof.

Mr. Kneedler: Well--

Unknown Speaker: That's the argument I'm thinking of.

Mr. Kneedler: --Right.

Unknown Speaker: Basically.

And I thought at first that's a pretty good argument, and then I realized that the reason I'm thinking that is in my mind I'm dividing parents into caretaker parents and noncaretaker parents, and that argument makes a lot of sense if you compare the noncaretaker citizen father with the caretaker citizen mother.

Of course it's true then.

It's true by definition.

5 minutes before the patient died he was still alive.

But suppose you switch to what I'd think would be the relevant comparisons.

Those are my two questions.

First let's think of the noncaretaker parents who are both citizens.

They're in the United States, the baby's over in the Philippines, and my first question is, why is there any reason in the world to believe that a noncaretaker father has less of a personal tie than a noncaretaker mother who's abandoned the child?

And now my second question looks at it just the other way.

Let's imagine now that both citizens are caretakers, and what reason in the world is there to think that a caretaker mother has more of a connection with the child than a caretaker father, who after all is trying to bring up the child by himself?

Now, those seem to me to be the two relevant comparisons, and as soon as I think of those comparisons, it seems to me this distinction is irrational, or close to it.

Mr. Kneedler: With all respect, we think it is quite soundly rational, and if I may just preface my response--

Unknown Speaker: Well, I'm trying to get you to respond.

[Laughter]

Mr. Kneedler: --With a... preface it with an important point that I think sometimes gets overlooked in this.

The point is not simply what tends to be true factually.

What... the steps that a father can take, are formal, recorded steps that are parallel to what happens when a child is born in the hospital.

Where there's a birth certificate, you have a witnessed birth, there will normally be no question whatsoever as to who the mother is, and by virtue of that you have an established legal relationship from the moment of birth.

Not... we're not getting to the question of caretaker or anything.

You have an established legal relationship from the moment of birth that follows the profound experience of carrying and bearing the child.

At that point, it is reasonable to assume that a parent, mother or father, but in this case it is only the mother, because the child was born out of wedlock, who has the legal relationship, will follow through with the caretaking relationship, with the love and responsibilities that come in the case of only one parent, and that is the situation that is addressed by 309(c).

There may be other--

Unknown Speaker: Mr. Kneedler, I understand that very well with respect to your first criterion, where you say you can't claim father status unless you show by clear and convincing evidence that you are the father.

But for the rest, for the life of me... if you're going to say, yes, only the woman can bear the child, there's no doubt that men will never be able to have that great joy, but--

[Laughter]

--just as only women can bear children, so both parents can care for children, and increasingly fathers are beginning to recognize the joy and the obligation of parenthood.

So your division for purpose of, am I a parent, I understand that, but after the birth, and after the paternity is established, the rest of it, just as in Justice Breyer's case, I have great difficulty following.

Mr. Kneedler: --The question, Justice Ginsburg, is not am I a parent, but am I a parent in contemplation of law, and citizenship is a formal relationship between the United States and a person.

It is a permanent relationship, and Congress is entitled to insist on an element of formality and legal acknowledgement in doing that.

The question is not whether Mr. Miller had an established personal relationship with petitioner during her minority, although there's no--

Unknown Speaker: Accepting that standard as a legal standard, clear and convincing evidence is lawyer talk.

Clear and convincing evidence that he's the father, that's a legal standard, and that relates to birth, who is the parent of this newborn child.

After that this talks about written obligation, written undertaking to support, all that, and why is that only one way, and I would like to ask in that connection whether the Government is now retreating from something it told the Court just 2 years ago over and over again, I think to the annoyance of some people because it was repeated so often at the oral argument and in the brief.

The Government said in the University of Virginia, United States v. Virginia said, differences in treatment based on sex are suspect.

Even when stereotypes reflect current realities, courts have condemned them because the law must not restrict men and women by reflecting and reinforcing patterns of historic discrimination.

The Government said that over and over.

Mr. Kneedler: --We have certainly not retreated from that.

You've asked me several questions, if I could just take a moment and respond to them.

First of all, in the... as this Court's decision in Fiallo made clear, Congress' power over immigration and naturalization is quite different from something that would happen in the domestic context, and there are a variety of reasons why that's so.

One of the parties to the transaction is an alien abroad, not even protected by the Constitution at all.

There are questions of sovereign authority, of foreign relations, of Congress taking into account conditions abroad.

That's both fact-finding and meshing U.S. law with foreign law.

So the circumstances we think are very different.

There's another big difference in the way that just what's at stake in this case and in the VMI case.

There, the Court was dealing with a categorical exclusion of women from the institution, and the Court was concerned with closing the door and denying opportunities to men and women, as the Court put it.

Here, there is no denial... no categorical exclusion, no denial of opportunities.

All Mr. Miller had to do, if he had the sort of relationship that you were describing, is to take the simple step of making that relationship formal and legal during the child's minority.

Unknown Speaker: May I ask you if you would answer the question that was asked before in the context of not national origin, but race.

Suppose the United States took the position, we know as a matter of statistics that there are many more white fathers that take responsibility for their children than nonwhite fathers.

Therefore, we're going to have this written acknowledgement of an obligation to support.

That will be required of citizen fathers who are nonwhite, but not citizen fathers who are white, and we're basing that on solid, empirical evidence of who provides support for children.

Would that be constitutional because it's in the immigration and nationality area?

Mr. Kneedler: Needless to say, this case doesn't go that far, but the question under Fiallo, the standard, is whether the justification advanced is one that is facially legitimate and bona fide, and in this country's history of race relations it would be difficult to imagine what a proper justification would be under parallel, I suppose, to those sorts of things that might be proffered for compelling justification, but here--

Unknown Speaker: But you... compelling justification doesn't fit with--

Mr. Kneedler: --No, I'm saying in terms of what sort of justifications one could imagine, and I... this country--

Unknown Speaker: --The justification is the practical one that I gave you, the statistics will show that disproportionately nonwhite fathers don't accept the support obligation.

Mr. Kneedler: --Well, in... again, given this country's history of race relations, and if there was a U.S. citizen claiming an effect on his ability to transmit because of that, it may be that under the phrase, facially legitimate, this Court would conclude that that is not a legitimate justification.

But there's a very different... if I may just go... explain what's different about this case, this... I think it is clear that at the moment of birth there is a categorical difference between the mother and the father of the U.S. citizen and the mother because, as I described earlier, in the child born out of wedlock, the mother has a legal relationship with the child from the moment of birth.

The father does not, unless the father or someone else takes a step in law to establish that relationship.

It isn't just the question of clear and convincing evidence of proof 20 or 30 years later as to whether in fact the man was the father.

The question is, was that legal relationship established during the child's minority, because the legal relationship is not just important in its own right.

It is emblematic and often fostering of a deeper personal relationship.

Unknown Speaker: Let's go to the emblematic issue, because that's part of your argument with the converse argument with respect to the more lenient treatment of the child of the citizen mother.

One step in that argument, as I understand it, is that because the mother is the citizen, the child will be with the mother, the mother has an attachment to the United States, therefore ultimately that will foster an attachment of the child to the United States.

My question is, should we take that argument seriously when in fact the statute requires of the citizen's mother that she have an attachment only to the extent of once at any time having lived for 1 year prior to birth in the United States?

That doesn't seem to me to be a criterion that calls for very much sense of attachment and if, in fact, that's the low value that the United States is willing to put on this attachment concept, isn't the argument a very weak argument, if not perhaps a sham?

Mr. Kneedler: No.

No.

With all respect, I think that very situation shows why Congress has particularly broad deference in this area, because what... Congress has to judge not only the situation in the United States and the U.S. citizen who may have a stake in it, but what is the situation abroad in the foreign country where, after all, the child was born?

And as we explain in our brief, Congress was very concerned, and the legislative history makes this quite clear, that a child born to a U.S. citizen on foreign soil, and this remains true in the Philippines, that child does not have citizenship of the country where she is born, so there's a very real problem of statelessness.

So what Congress is weighing there is perhaps a weaker tie to the United States, but perhaps no legal status at all in the country of birth, and so what Congress did there is to say, in that situation, because we are concerned for the child and for the mother of the child, who is a U.S. citizen, we are prepared to accept a somewhat weaker link to the United States in that situation because of the counterbalance.

Unknown Speaker: Is that on record somewhere?

Mr. Kneedler: Pardon me?

Unknown Speaker: I mean, can I find that reasoning somewhere in the legislative history?

Mr. Kneedler: Yes.

It's... we quote it in the... in the 1952 report in our brief, and there is discussion--

Unknown Speaker: Do you have the cite?

I didn't remember it.

Mr. Kneedler: --I'm sorry.

Unknown Speaker: No, if you don't have it right at hand, I don't want to take your time looking for it.

Mr. Kneedler: On page 34 of our brief.

Unknown Speaker: Okay.

Thank you.

Mr. Kneedler: We cite the Senate report.

Unknown Speaker: By the same token, if this child had in fact lived with her father, suppose he went... took him... took a ship, took her back to the United States, she's a teenager, she proves to be trouble, so he says, out with you, back, I don't want anything to do with you.

She would have had all her growing up years in the United States and yet, under this statute, she could not qualify as the child of a U.S. born citizen.

Mr. Kneedler: All the father had to do during her minority was to take the step of either legitimating the child--

Unknown Speaker: I'm just asking the question about the tie to the United States, so that becomes irrelevant.

Even though this child grew up in the United States, that's--

Mr. Kneedler: --It's conceivable there could be an as-applied challenge to this statute, but in the immigration area in particular Congress is entitled to legislate by categories, and Congress is entitled--

Unknown Speaker: --In social and economic legislation, too.

See, that's really the problem that I have with it.

It used to be for years and years social and economic legislation is anything goes, what Congress wants to do, and yet all the precedent in the gender cases were made in that area which traditionally has been a largely judicial hands-off, so I'm frankly puzzled about why the Government, after saying all gender classifications are subject to heightened scrutiny, now says we found an exception, so I'd like to know, are there other exceptions?

Mr. Kneedler: --No.

The exception and whether there might be another one I can't address.

What we have here is a very different context.

At the time the Court decided Fiallo this Court has already decided Craig v. Boren and concluded that gender distinctions in the domestic context have to be justified as having a substantial relation to an important governmental interest, and also applied heightened scrutiny with respect to illegitimacy.

But right contemporaneously with that... and this case is really about children born out of wedlock, and as in this Court's decision in Lehrer v. Robertson, where the Court said the statutory scheme is not likely to omit many responsible parents, we think that is exactly true here.

Anyone who wanted to establish the requisite relationship during the child's minority, and that's the period that Congress was focusing on, all that person had to do prior to 1986 was to provide for legitimation of the child.

Congress in 1986 liberalized that, not requiring a formal court to create it, not requiring the father to go to another country.

All he had to do was file a statement with the State Department acknowledging the paternity of the child and assuming an obligation equivalent to that of the mother that flows from that, even in the absence of a legal relationship, the acknowledgment, the promise to support that would flow from the mother's preexisting legal relationship with the child.

And if I may, with respect to the suggestion of the irresponsible parent, or the parent who may abandon, I don't think Congress is required to establish a statutory scheme on the possibility that someone in the other category may not live up to the legal responsibilities that the law prescribes, but in any event, this statute applies equally as to both categories.

The mother who bears the child and either abandons or gives the child up a week later, that child is a citizen.

The same is true for a father who acknowledges or legitimates a child.

If that father does not subsequently remain responsible, that child remains a citizen.

The question is simply the timing of when the father steps forward to assume his responsibilities for the child abroad.

And one other point to bear in mind, in many cases... and this is not a generalization about the nature of men and women.

It's a statistical legal fact that in the cases of a child born out of wedlock, when you have a U.S. citizen mother, that will very often be the only parent.

Where you have a U.S. citizen father who takes the steps to legitimate and the other steps, that means there are two parents with a legal relationship, one parent here and one parent in the other country.

So this is a situation which, in fashioning these categorical schemes, Congress necessarily has to balance the different considerations that arise, and so it's not just the question of the U.S. citizen parent.

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Clark v. Jeter - Oral Argument

Wed, 13 Apr 2011 20:13:24 +0000

Case:

Clark v. Jeter

Media File:

87-5565_19880419-argument.mp3

Related Transcript:

87-5565_19880419-argument.xml

Transcript:

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.

Attribution:

The OYEZ Project

Featured:

Reed v. Campbell - Oral Argument

Fri, 09 Jan 2009 14:48:37 +0000

Case:

Reed v. Campbell

Media File:

85-755_19860430-argument.mp3

Related Transcript:

1985_85_755_argument.xml

Transcript:

ORAL ARGUMENT OF R. STEPHEN MC NALLY, ESQ., ON BEHALF OF THE APPELLANT

Chief Justice Burger: Mr. McNally, I think you may proceed whenever you are ready.

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

This is a direct appeal taken from an original probate action in west Texas.

The Appellant was denied inheritance rights from her father on the basis that she was an illegitimate child.

Three questions are presented: first of all, whether this Court's decision in Triable v. Gordon is binding authority where the father died before Trimble was decided and suit was filed afterwards in his open estate; second, whether any sufficient state interest supports enforcement of the naked status of bastardy after the father's death; and third, whether the preference of surviving fathers over surviving mothers is substantially related to any sufficient state interest.

The Appellant in this case is Delynda Ann Ricker Barker Reed.

The Christian names Delynda Ann were chosen for her by her natural father, Prince Ricker, whose surname she had until she was adopted about the time she started elementary school, by Jerry Barker.

The Reed is her married name.

The procedural posture of this case is particularly relevant because we are talking about whether the application of a decision of this Court is defeated by that posture.

This was from an order entered in open probate on which there were five other children of Prince Ricker and the Appellant.

The order excluded the Appellant Delynda from the estate.

The probate of that estate is still going on in open administration in the trial court.

There has never been an order entered declaring who the heirs are to this day.

There has never been an order entered on which any third parties would rely stating who the heirs are.

The probate is still open.

The assets have not been vested by a decree.

In this posture, full precedential authority should be given to the case of Trimble v. Gordon because the statute involved in this case is an insurmountable barrier indistinguishable from the insurmountable barrier struck down in Trimble, and because the estate is still open.

Unidentified Justice: What statute is at issue?

Mr. Nally: Your Honor, the statute at issue regarding inheritance is the 1956 version of Section 42 of the Texas Probate Code.

Section 42 has been amended twice since Prince Ricker Died.

However, under the Texas Constitution, statutes and precedents, it's the statutes which are in effect at the time of his death which determine or under which the passage of title of his estate is determined, and in the case of Lovejoy v. Lillie, the Court looked at this statute, the 1956 version, and struck it down, allowing inheritance to be--

Unidentified Justice: That was the statute that was in effect when Ricker died?

Mr. Nally: --Yes.

It's the same statute that was in... that passed on in Lovejoy v. Lillie.

And the Texas Supreme Court considered the 1956 statute in Davis v. Jones and admitted that it lacked suitable alternatives to marriage under Trimble.

So there have been at least two state court rulings on this particular 1956 statute as applicable to persons... estates of persons who died before--

Unidentified Justice: And what does Trimble have to do with it?

Mr. Nally: --Your Honor, Trimble... in Trimble this Court struck down the Illinois statute because it made marriage a sine qua non for inheritance by an illegitimate child.

The 1956 statute allowed inheritance only if there had been a marriage between the parents.

There was no other way that the inheritance is allowed under the 1956 statute for an illegitimate child.

Unidentified Justice: In Texas.

Mr. Nally: In Texas, that's correct.

Justice O'Connor: Was no common law suit for paternity or support recognized for illegitimate children?

Mr. Nally: Your Honor, there... under the common law, of course, in Texas, there was no right of support for an illegitimate child.

This Court struck down that common lay and statute in Gomez v. Perez.

After Gomez, there was a judicial remedy for the 14th Amendment right recognizing Gomez to child support for children that had... however, by that time, Delynda had been adopted, and when she was adopted, her rights were, to any support were cut off by Article 46(a) of the then in effect--

Justice O'Connor: Was the question of the legal effect of her adoption ever raised below?

Mr. Nally: --Your Honor, there was no legal effect on her inheritance rights of the adoption, and so no, it was newer an issue.

A legitimate child--

Justice O'Connor: I thought under Texas law adoption severed all legal relationship between the parent and child.

Mr. Nally: --Your Honor, under Section 46(a) which was in effect when Delynda was adopted... that was Article 46(a) of Vernon's Annotated Texas Statutes... an adoption severs all the rights except the right of the child to inherit from the natural parent.

Justice O'Connor: Except the right of a legitimate child?

Mr. Nally: Yes.

A legitimate child has that right, and that's why it's no severed.

An illegitimate child never has the right, and that's why--

Justice O'Connor: But you didn't challenge that.

Mr. Nally: --Well, no, Your Honor.

Our rights were not... to inherit were not terminated by the adoption.

It's the fact that we never had any rights to inherit before the adoption or after the adoption.

Justice O'Connor: Well, could your client have, ever have brought suit under Chapter 13?

Mr. Nally: No, Your Honor.

She was excluded from Chapter 13 in at least two ways during the entire time her father was alive.

The first way is Chapter 13 gave no relief at all to a child born before its effective date in September of 1975.

Delynda was born in 1958, so right there she was totally excluded from Chapter 13.

Moreover, this Court had Chapter 13 before it in Mills, noted the one year statute is not sufficient, but Delynda didn't even have a technical right under that one year statute because she was over one year old when it was enacted.

When they amended it to four years, she was over four years old.

She never had a chance there.

And she was over twenty years old when they made the most recent amendment to twenty years.

It's just kept moving away.

Unidentified Justice: She missed out on them.

Mr. Nally: But the effect is you've had an insurmountable barrier in the statute of limitations the whole time, as well as the insurmountable barrier in the effective date of the statute.

Under that provision as construed by the Constitution, it gave a valuable right of legitimation to certain illegitimate children, those that were born late enough and those that brought suit within the statute of limitations as extended.

Those children had a... as a matter of right had the right to an order designating them to be the father of the child... the child's... that the father was the father upon a jury finding, under... and that was under 13.08 of the Family Code.

They had, that's the court shall enter that order.

And under 13.09,.09 of the Family Code, the effect of the order is that the child is the child of the father as though born to the parents within lawful matrimony.

It was a full legitimation.

Also, the Family Code gave the right to attorneys fees to a child born late enough who brought suit soon enough, and that's a valuable due process right because the state imposes on illegitimate children a requirement of proving paternity, does not impose the same requirement on a legitimate child.

The legitimate child just shows motherhood and marriage, never has to show access, chastity of the mother, that sort of thing.

So there's a heavier burden to prove on the illegitimate child.

The Texas statute gave some relief for hearing that burden in the form of attorney's fees, but only to certain children, those born after September 1, 1975, those who had a chance to bring the action within the statute of limitations as extended.

Delynda never had any chance to bring an action under the Family Code.

It has been an insurmountable barrier to her the entire time.

Unidentified Justice: So what was the decision below?

Mr. Nally: The lower court denied inheritance rights and said that also a reasonable basis supported excluding Delynda from the 1979 Probate Code which, of course, incorporated the Family Code.

As far as Trimble goes, it applied a time of filing test.

Under this test, Trimble is not binding authority if the father was born... died before Trimble and the suit was first file afterwards.

The time of filing test is not sensitive to whether or not the estate was open, and therefore, for example, if the child brought suit before Trimble father earlier, it would reopen by collateral attack the estate.

Unidentified Justice: So she was barred by the 1956 statute which was deemed to be in effect and valid prior to Trimble.

Mr. Nally: Yes, and enforce... and enforceable after Trimble by the time of filing test as a way of saying, well, Trimble is not binding authority.

That is not a good test, Your Honor.

There are two better forms of retro... well, three, really.

This Court has historically used three forms of retroactivity analysis, a Blackstonian, all decisions were automatically retroactive.

Then, since about 1965 or so in the civil area you have had the Chevron test, which was a three-part test.

And recently in the criminal area the Court has addressed--

Unidentified Justice: So Ricker died before Trimble.

Mr. Nally: --Died about four months before Trimble.

Unidentified Justice: But the claim was made after Trimble.

Mr. Nally: The claim was made I guess about a year after Trimble.

Unidentified Justice: And the court said this statute will still be deemed valid for this purpose.

Mr. Nally: Well, it conceded--

Unidentified Justice: Well, it--

Mr. Nally: --The statute's invalid.

Unidentified Justice: --It nevertheless barred--

Mr. Nally: But they're going to apply it.

Unidentified Justice: --Well, they're going to apply it.

They think it's valid enough to exclude this person from inheriting.

Mr. Nally: Well, they applied it to exclude this person from inheriting but effectively conceded that it is repugnant to the 14th Amendment under Trimble.

They just said, well, Trimble isn't the law, wasn't the law when he died, and although it is now the law as we are trying the case and as the case is on appeal, we're just not going to apply Trimble.

We're going to act like Trimble never happened, and what we're going to apply is really nothing, no form of equal protection analysis at all.

Before Trimble was decided, this Court had repeatedly, had never sustained since Levy v. Louisiana, this Court had never sustained an insurmountable barrier based on illegitimate status, and if they didn't want to apply Trimble, they should have applied Gomez v. Perez which said that the state of tarrier based on illegitimacy violates the 14th Amendment.

The lower court refused to apply any form of equal protection analysis.

Unidentified Justice: Mr. McNally, if you prevail here, you want of course inheritance rights.

Do you want something more than that?

Do you want support money for the period prior to death?

Mr. Nally: Your Honor, we are seeking no support at this point.

We dismissed the support claim prior to trial by determining that under state law, even a legitimate child would have had no rights to support.

We just didn't think we could get it as an adopted child.

We considered that our rights to support were terminated by the adoption.

So we're not seeking any--

Unidentified Justice: So it's only the inheritance that you want.

Mr. Nally: --We're seeking inheritance but also the status of legitimation which is given to certain illegitimate children by Chapter 13.

Chapter 13 of the Family Code doesn't itself give any support.

It's just a legitimation statute.

That legitimation is... gives a right to a status.

Unidentified Justice: Well, what federal claim is there to that?

Mr. Nally: Your Honor, the federal claim is that here you have a denial of a right to legitimate social status, legitimate legal status, and to the attorneys fees, and that those are, we would submit, substantial rights apart from--

Unidentified Justice: Well, they may be, but are they federal constitutional rights?

Mr. Nally: --Your Honor, if the state hadn't given certain other illegitimate children the right to legitimation and attorneys fees, equal protection would not take any cognizance of it.

But the state has come in with a statute and given certain other illegitimate children, based on their date of birth, based on their at least having a chance to file the claim, these valuable rights to be... to escape from the stigma of illegitimacy, and since the state has taken that step, the 14th Amendment looks at that to see if the exclusions pass the Mills test.

Mills requires that exclusions from a grant of rights must first of all give a reasonable opportunity for those excluded to be availed of the rights.

It's illegitimate children.

And Delynda never had any opportunity.

So the first element of the Mills test is not satisfied.

And secondly, it requires a substantial relationship to a permissible state interest, and here it is significant that we are looking for the status of legitimacy as far as the Family Code goes.

We are not necessarily asking, we're not asking under the Family Code for inheritance, we're not asking for support.

We're just asking to be legitimate.

All of there state interests that the Court has recognized in denying relief have had to do with the need to have settled title to real estate or avoid stale or fraudulent claims.

Those stated interests are not involved here.

We're just asking for the social, the legal status of legitimacy.

Unidentified Justice: Well, you're asking for inheritance.

Mr. Nally: Well, that is... yes, Your Honor.

However, that is not under the Family Code.

Unidentified Justice: Right.

Mr. Nally: Under the Family Code... yes, we're asking for inheritance by looking at the probate statutes in effect when Prince Ricker died, the insurmountable barrier, and the analysis that Trimble should be applied.

This Court has used, in recent times, since 1965, discussed retroactivity in two contexts.

The civil retroactivity has been governed by Chevron v. Huson, and I would like to point out that under Chevron the purpose of Trimble is germane.

The second of the Chevron elements is whether the purpose of Trimble v. Gordon would be served or hindered by being applied in an open estate.

Trimble has two purposes.

The first purpose is the fairness interest, the fairness... the interest of the child and of the state itself to recognizing fair claims, and the other interest is preserving security of title to land and orderly probate.

Here we have an open estate.

We are going... the only way to recognize the fairness interest is to allow inheritance, and that can be done in this case because the estate is open, without jeopardizing orderly probate and without jeopardizing security of title to land.

The most recent analysis that this Court has applied in the Fourth and Fifth Amendment context also looks carefully to whether the estate is open or close, and the Court has said in U.S. v. Johnson that a new decision, constitutional decision, should be applied unless it works a sharp break with the past, in cases pending on direct appeal.

This case is pending on direct appeal, and it doesn't work any sharp break with the past.

Insurmountable barrier analysis was not created in Trimble.

It was there long before Trimble so that Trimble did not apply any new analysis.

Under the U.S. v. Johnson, Trimble should also be given retroactive application in an open estate.

The dissent in U.S. v. Johnson was very concerned about whether the purpose of the exclusionary rule was served by retroactive application.

That concern was not present in this case because the purpose of Trimble is served, both purposes of Trimble are served by application in this estate and are defeated by... would be defeated by a refusal to apply Trimble in this case.

Unidentified Justice: How old is your client now?

Mr. Nally: My client is now about 28 years old, Your Honor.

She has two children of her own.

Justice O'Connor: What's the size of the estate?

Mr. Nally: Your Honor, we don't know exactly.

We were excluded from the estate.

It involves a fraction of the minerals under a portion of an original ranch that was about I think 2,800 acres.

I believe that this is a one-sixth share of the minerals under one-fourth of the original ranch.

I have received different reports as to the amount that Delynda's share would be.

I understand that her brothers and sisters are currently receiving somewhere between $2,2500 a month and I have heard as high as $4,000 a month.

I really don't know.

With regard to the discrimination based on sex, some of the analysis set out by this Court in Mills is relevant that is after Gomez.

Both the parents have the duty to support the child.

Even after Gomez, the father has one way to escape that.

He may never be adjudicated the father, and in that case, he still will be, for example, immune from prosecution for nonsupport.

But if he is adjudicated to be the father, he still... there is still a preference that benefits him over a surviving mother.

Under Section 109 of the Probate Code, a surviving parent is automatically the guardian of the child's person and property.

The mother would be the guardian, the father would be the guardian, but if the mother is the guardian, the child has no estate that could help her to raise the child.

If she is needy, she has no assets there in the estate because the child could not inherit from the father, whereas if it is the mother that dies, because the statutes have come in and modified the common law, the child can inherit from the mother, there is some estate of the child, the father would have some recourse to help him raise the child if he is in a needy circumstance.

Thus, a father is preferred over a mother, and that is inherent in the Texas statutes.

Justice Rehnquist: Well, what point in your argument is that observation directed to?

Mr. Nally: That is directed to the sex discrimination portion of the denial of inheritance, that it is... if Delynda was one of the one's whose mother died without a will, she would be allowed to inherit.

Justice Rehnquist: And is this argument an alternative ground to Trimble v. Gordon's retroactivity?

Mr. Nally: Exactly.

In effect, the analysis of the lower court is that we just don't look at equal protection if Trimble is retroactive.

This is an example of an equal protection ground where there is no retroactivity question because it hasn't been decided yet by the Court.

Justice Rehnquist: But Delynda... this isn't a claim of Delynda, it's a claim of her mother, as I understand it, who apparently is alive and perfectly capable of making the claim if she wants to.

Mr. Nally: Your Honor, it's a claim for mothers of children in Delynda's classification who are foreseeable impacted by--

Justice Rehnquist: Well, why shouldn't we wait for mothers to make that claim?

Mr. Nally: --Of course, that would be a clearer and stronger case if you did.

The standing... I believe Delynda does have standing to make the argument, a jus tertii standing under Craig v. Roren because it is Delynda's own rights that are affected.

The mother's are only affected derivatively.

It's Delynda's rights which are affected directly.

Unidentified Justice: Mr. McNally, can I ask in this connection, as I understand your response to Justice Rehnquist, if you should prevail on the retroactivity, as we call it, of Trimble argument, then there's no need to reach this argument, is that correct?

Mr. Nally: That's exactly correct, Your Honor.

Unidentified Justice: Is that also true with respect to your argument seeking legitimate... legitimation?

As I understood the lower court opinion, that was discussed only in connection with the basic claim of right to a share of the estate.

Are you asking independently that even if you win and get your share of the estate under the Trimble retroactivity point, you still want separate consideration of the legitimation issue?

Mr. Nally: Yes, Your Honor.

We are requesting that the Court separately consider... we would not... we would be pleased to inherit under Trimble--

Unidentified Justice: And what is your... well, but doesn't that... confining it to that second question, what is your... your theory is that this cutoff date of September whatever the year was, that denied your client equal protection, is that what it is, because it allowed some illegitimate children to have the statutory remedy and others not, is that it?

Mr. Nally: --Yes.

Unidentified Justice: So the discrimination is between some illegitimates and other illegitimates.

Mr. Nally: Yes.

Unidentified Justice: So is it a statute of limitations issue then?

Mr. Nally: Well, there is the statute limitations, although it is not really statute of limitations since they gave a one year statute after she was one year old, and these are non-tolling statutes.

Unidentified Justice: But may I just finish one thought on that question?

I thought the answer of the lower court in part was that even under the statute, if the date had not been there, your client would not have qualified under the facts of this case.

Didn't they so... that the father hadn't been... there are two or three ways a person could be legitimated, but none of them applied to this particular person?

Am I wrong in that?

Mr. Nally: Your Honor, in effect that was the alternative ruling that... and they were looking, they were saying, well, if you apply the 1979 statute, then we think that there was a reasonable basis to exclude you from the Family Code so you don't inherit under the 1979 statute.

That was not necessarily a factual thing.

They were saying that a matter of law, there's a reasonable state basis, so that the Family Code--

Unidentified Justice: So there are really two objections to her legitimation claim.

One is the date and the other is the statutory conditions.

Mr. Nally: --Yes.

Now, the third basis that the lower court may have been concerned with is whether the legitimation action is available after death because that, we did first bring this action, of course, after Price Ricker was dead, and the lower... the Texas courts have never ruled that it's not available after the father dies.

What we would say to this Court is that the Court doesn't need to know whether the state courts will construe it that way or not to know that Delynda is entitled to the relief because if they construe it that way, it's clearly a violation of the 14th Amendment.

Unidentified Justice: Does she have any interest in obtaining this relief other than the interest in her reputational interest?

Is that the only thing at stake, really?

Mr. Nally: Your Honor, the attorneys fees are also a valuable right, and they are both important.

The attorneys fees are afforded under 13.42(b) of the Family Code.

Unidentified Justice: I see.

Justice Rehnquist: We... our cases of this... it seems to me some of them have said that attorneys fees by two selves don't indicate a sufficient real interest in the case.

It's like costs, in a way, the fact that costs may be outstanding doesn't keep a case alive.

Mr. Nally: Your Honor, the position of the attorneys fees in this... I would agree that certainly the attorneys fees request is much less compelling than the fact that we also have the status of bastardy at stake, but turning to the attorneys fees, you have an exceptionally sensitive area because they touch on both due process and equal protection rights, essentially equal protection and access to due process because the state imposes the requirement of proven paternity only on an illegitimate child.

A legitimate child has the benefit of a presumption, after showing maternity and marriage, they don't have to prove paternity.

Only the illegitimate child has to prove that--

So the state has imposed a burden on the illegitimate child.

Then it has come in and given some illegitimate children some help with that burden, a right to an award of attorneys fees but not to others, and so we are in the sensitive area of equal protection, again, with due process--

Unidentified Justice: Well, why is equal protection and due process more "sensitive" than other constitutional areas?

Mr. Nally: --Your Honor, those are fundamental constitutional rights.

Unidentified Justice: More fundamental than other constitutional rights?

Mr. Nally: Well, more fundamental than just a right to money as attorneys fees which you were saying there were some cases the Court has held that insufficient.

Unidentified Justice: Well, but the source of you claim of right is one thing.

What you're actually claiming, is it enough to make it a concrete interest I think is another.

Mr. Nally: Are you asking if the request to be legitimated is a concrete interest or are you still solely on the attorneys fees?

Unidentified Justice: I think there might be a question as to either one, whether the request to be legitimate is a sufficiently concrete interest, and whether a claim for attorneys fees based on that right is the sort of claim for monetary relief that would give you standing if noting else in your case did.

Mr. Nally: It would depend on how fundamental the Court had judged the right to be legitimated and the right to attorneys fees in that context, equivalent statutory rights.

If the court feels that those are not significant or constitutionally significant or cognizable rights, then certainly it wouldn't be compelled, but you know, you wouldn't be compelled to strike down the statute.

However, I would urge the Court that the status of illegitimacy is a heavy burden, there is still stigma attached to it.

There have been studies that show that the IQ of illegitimate children is lower and gets progressively lower through the years.

There is still a stigma, I will represent to the Court, felt by my client very keenly in that denomination by the state courts.

I would like to reserve the rest of my time.

Chief Justice Burger: Mr. McCollum?

ORAL ARGUMENT OF PAUL MC COLLUM, ESQ. ON BEHALF OF APPELLEES

Mr. Collum: Mr. Justice, and may it please the Court:

This case essentially involves but one issue.

From the record it established below, the question is whether a substantial federal question exists, and we submit that it does not.

We would further urge that the Appellant is ill-placed in this Court.

This case does not involve, as he would claim, complex issues of trans-states impairments of equal protection that impact upon numerous persons, nor does the case involve the concept or retroactivitity, which is a complex concept that usually implicates a notion not here, which is fundamentality.

The only issue in the case is substantiality.

It is true that the substantiality does, under the present facts, have two parts.

One is standing, and more importantly, whether or not the Texas legislature, in its response to Trimble and as in achieving the goals as articulated by Lalli, came up with a good law.

Now, then, I think that in view of what is said, that an examination of the chronology might be in order here.

Now, what happen was that in 1959, Section 42(b) of the Texas Probate Code was enacted.

Under Section 42(b) of the Probate Code there was only one way that paternal inheritance could be achieved, and that was through intermarriage of the parties.

In 1975, Chapter 13 of the Family Code was enacted, and that provided for establishment of paternity for purposes of child support.

Justice O'Connor: Could this Appellant have ever sued under Chapter 13 at any point?

Mr. Collum: Yes, Your Honor, she could have sued under--

Justice O'Connor: When, when could she have done that?

Mr. Collum: --She could have sued under Chapter 13 at any time after 1979.

In 1979 the Texas law was, under judicial interpretation, that all persons who were born prior to the year 1975 had a four-year statute of limitations to go on, plus the statute was tolled during the minority.

In effect, she had 22 years in order to bring it.

Now, in actual fact, she had more than 22 years.

In actual fact, she brought a suit alleging in 1978 that she was the heir and also she petitioned the District Court for child support.

Now, then, those cases were later consolidated for purposes of trial.

Now, she remained in court, surrounded by lawyers, from 1978 until the case was tried in 1982, some four years later.

Now, Trimble came down April 26, 1977, and in response to Trimble, the Texas legislature one month later enlarged Trimble and they stated, and they amended Section 42(b) to provide not only for intermarriage as it held before, but also through voluntary legitimation by the father.

Now, also in 1979 the Texas Legislature again reacted in response to Trimble and proscriptions in Lalli, and the Texas Legislature in '79 said that not only could they be born or conceived during marriage or in a null marriage that later claimed, turned into a valid marriage, but also a voluntary statement of paternity would legitimate the child and entitle it to paternity... paternal inheritance, but also they said a third method.

They said they adopted Chapter 13.01 as a procedure, as a third procedure to establish paternal inheritance.

Now, Chapter 13.01 provides for scientific methods to determine the paternity of a father.

Unidentified Justice: Is that part of the Family Code?

Mr. Collum: Yes, sir, it--

Unidentified Justice: 13.01?

Mr. Collum: --Yes, sir, it's 13.01 of the Family Code, Your Honor.

And that portion of the Family Code was made a part of Section 42(b) of the Probate Code for purposes of establishing a third procedure.

Now, under that, also, the Probate Code had the general four-year statute of limitations and it also had the statute tolled during the minority of an applicant.

Now, what this Appellant did in this case, she filed these two actions some 14 months after the death of Prince Ricker.

They remained in court all of that time until it was finally tried.

Now, it was tried on the thrust of intermarriage under Section 42 of the Probate Code.

They submitted issues to the jury to determine whether or not the parents were married as it was claimed.

The jury found that they were not married.

Then they stated that there was a putative marriage.

They submitted elements to establish that.

The jury found that there was no putative marriage.

Then they submitted a nonissue.

They submitted an issue that said was she, do you the jury find that she is the daughter of Prince Ricker, and the jury said yes.

You see, that is a nonissue.

That was ignored by the trial court because that is not the way you determine paternity.

There are three ways that you can do it, and the scientific way they did not do.

Now, I think it's important to know, and to know that the record below showed that Prince Ricker was an unreconstructed alcoholic with associated mental diseases, and he was--

Unidentified Justice: But the fact is that the jury... the judge submitted the issue to the jury, I take it.

Mr. Collum: --Yes, sir.

Unidentified Justice: And why did he, if it wasn't an issue in the case, why did he?

Mr. Collum: They insisted on it.

They wanted to do it.

It's a nonissue.

It had nothing to do with the lawsuit.

Unidentified Justice: Well, the jury found, the jury found parenthood.

Mr. Collum: It would be... it has no more bearing if she's a complete stranger.

This is not the way, there is no way in Texas law that this is a way to do it.

Now, there was on the books a way for them to do it.

There was--

Unidentified Justice: Mr. McCollum--

Mr. Collum: --He was hospitalized some 16 times in the last several years of his life before his death.

Unidentified Justice: --Mr. McCollum.

Mr. Collum: Yes, sir.

Unidentified Justice: Is it not true, though, that if you had prevailed on that factual issue and the jury had found otherwise, then there would be no claim whatsoever here under Trimble v. Gordon retroactivity or anything else?

So it at least was an issue, a threshold issue that kept her in court to get up here.

Mr. Collum: That's what they contend, Judge.

Unidentified Justice: You wouldn't deny, would you, that had the jury finding been the other way you'd be a lot better off.

Mr. Collum: I honestly, Your Honor, don't think it makes any difference.

It makes not one whit of difference.

I think probably they would not have pursued the appeal had the jury so found, but with reference to that finding--

Unidentified Justice: But insofar as they make their Trimble v. Gordon argument, doesn't it make a difference on that?

It's at least theoretically possible that they will convince us... I'm not saying they will... that the Trimble v. Gordon was the law as applied to any estates that hadn't been closed at that time.

That's one of the things they argue.

Mr. Collum: --Yes, Your Honor.

Texas, in response... I hope I understand Your Honor's question... Texas in response to Trimble v. Gordon made two amendments to 42(b) to try to come into compliance.

Unidentified Justice: But they did that after this man died.

Mr. Collum: Yes, sir.

Unidentified Justice: So that if, if her rights vested at the time of his death... and I don't say they did or they didn't, but if they did, as he argues, and if Trimble v. Gordon only cuts off claims when the estates are closed, then this is a rather important finding.

Mr. Collum: Yes, sir--

Unidentified Justice: And I don't suppose that after this jury finding that she could have started over again in another court and claimed paternity.

Mr. Collum: --I don't think she could have after 1980, Your Honor.

Unidentified Justice: Well--

Mr. Collum: She could have up through November of 1980.

Unidentified Justice: --All right, here's a jury, here's a determination in a court that she was not the child of this man.

Do you think she could have started over and had it tried cut again?

Mr. Collum: Yes, Your Honor.

She could have pursued the law as it existed.

Now, the law provides three ways of establishing paternity, one of which is not to ask the jury do you find that she's the daughter of Prince Ricker.

That issue was ignored by everybody.

Now, counsel was there, counsel had read Section 42(b).

It did not vest.

In other words, can you say that Texas in trying to come in agreement with Trimble, that a person can sit there and not take advantage of the law that Texas passed--

Unidentified Justice: Well, counsel, why... isn't it true that the 1956 law was applied in this case?

Mr. Collum: --No, sir, that's the law they chose to go under.

That's what they wanted to go under.

Unidentified Justice: Well, she didn't succeed in... she hasn't succeeded... she's been barred from being an heir of Ricker.

Mr. Collum: She failed... she did not submit any evidence, Your Honor, of blood tests.

She did not try to come in... in other words, Texas provided a method that she could have been declared an heir of Prince Ricker, a paternal heir of Prince Ricker if she could have prevailed in the proof.

Now, all in the world she had to do, as per the appellate court in Texas, Reed v. Campbell, said all in the world she had to do--

Unidentified Justice: Was take some blood tests of a dead man, I guess.

Mr. Collum: --Well, yes, sir, take the blood test of a dead man or samples of his tissue.

We don't know whether it would have been possible, but on the other hand, we do know that she never tried, and all in the world they have got to do is try to comply with the law, and that's why the legislature enacted these.

They are reasonable efforts to bar spurious claims and to secure accuracy in titles and accuracies in inheritance.

There is nothing invidious or discriminatory about them.

The law was in place for her to establish if she could her paternal inheritance.

She did not even make an effort to do so.

All in the world she chose to do was to say am I the child of Prince Ricker, which was a nonissue in the case.

Now, we would submit that we don't know what Texas could have done to come into compliance with Trimble other than what she did.

Now, would Texas, would the statute, would Section 42(b) as it existed in 1955 have been in violation of Trimble?

It was more liberal than the Illinois statute which required not only intermarriage but also a formal acknowledgement of the child.

Texas tried every way in the world to come into compliance with those statutes.

Now, then, are we to say that while in court in 1982 with the case already on file since 1978, with her lawyers and not make an effort to comply with the law, and say, well, the statute has run on me, or I don't like the law, I don't think the legislature was proper in requiring these scientific tests.

Are we to do that?

I would respectfully urge the Court that there is a complete lack of substantiality in the lawsuit.

We do not find in the lawsuit anything that says that the Texas laws should not be applicable to this case.

Texas laws are presumed to take effect at the time that they are enacted, and these did, and one month after Trimble and two years after Trimble again, both while she was in court and able to take full advantage of them.

We would respectfully urge, Your Honor, that in this case the appeal should be dismissed.

Thank you.

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

You have two minutes remaining.

ORAL ARGUMENT OF R. STEPHEN MC NALLY, ESQ. ON BEHALF OF APPELLANT -- Rebuttal

Mr. Nally: Thank you, Your Honor.

First, does the Court have any other questions?

I do have one or two things I will mention if you don't.

Your Honor, the Winn action, which recognized the invalidity of the date of birth provision, has never been applied in Texas to recognize anything other than the right of child support.

It was not the equivalent, it has never given the equivalent relief available under the Family Code action, it has never given legitimation, it has never given attorneys fees.

The Winn action was available until Delynda was 22, or a Winn action is available until the child is 22.

Delynda filed this action before she was 22, so if this is a Winn action in Probate, which would be a Trimble action, we're within it.

The Court had before it in Mills all three methods which the Appellees now claim were sufficient reasons for denying inheritance.

Mills rejected voluntary child support by the father as a sufficient means for child support.

It rejected the one-year statute which gave the claimant in Mills a much better chance to get child support than we have had to be legitimated in this case, and in Mills it rejected marriage, which is the third of the methods.

These are... these methods have already been considered by the Court and rejected as not constitutionally sufficient.

Unidentified Justice: Well, when for the first time in Texas could you... could an illegitimate inherit other than by the marriage of their parents?

When was it first possible?

Was that the... '75, I take it, you could prove paternity and get support, but that was not heirship.

Mr. Nally: That's correct.

Unidentified Justice: So when was the first time, '78?

Mr. Nally: Your Honor, I would think that the first time that Texas allowed it would be in 1977 because the voluntary legitimation for support purposes was enacted right after Gomez in '73.

Technically if the father had agreed and gone in the sworn that that was his child in '73, and then died after, right after 1977, that would have been the earliest.

Unidentified Justice: But if that hadn't happened, there was no way that she could establish heirship other than--

Mr. Nally: Other than that, the first probate significance for the Chapter 13 paternity suit was in 1979.

If your father didn't died after August 27, 1979, there was no way that that would help you.

Unidentified Justice: --Mr. Nally, was this estate in probate at the time Trimble was decided?

Mr. Nally: Your Honor, yes, the estate had already been filed.

It was pending on file from January of 1977, so it had been on file for some months.

Delynda's claim for inheritance was not filed until after Trimble, but there was an application on file stating that the other heirs were the heirs of the estate when Trimble came down.

Unidentified Justice: So you, you think the operative reason for the denial of heirship in this case was the '56 statute which was still in existence?

Mr. Nally: That's correct, Your Honor, and that's clear from the opinion also.

It says even if the 1979 statute applied, that the Family Code was reasonable.

But the opinion makes it clear it's the 1956 statute that it was talking about.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Pickett v. Brown - Oral Argument

Wed, 18 Feb 2009 07:11:12 +0000

Case:

Pickett v. Brown

Media File:

82-5576_19830427-argument.mp3

Related Transcript:

82-5576_19830427-argument_transcript.xml

Transcript:

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.

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Mills v. Habluetzel - Oral Argument

Fri, 09 Jan 2009 14:46:47 +0000

Case:

Mills v. Habluetzel

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United States v. Clark - Oral Argument

Thu, 13 Sep 2012 22:03:39 +0000

Case:

United States v. Clark

Media File:

78-1513_19791031-argument

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78-1513_19791031-argument

Transcript:

Argument of Harriet S. Shapiro

Chief Justice Warren E. Burger: We’ll hear arguments first this morning in United States against Clark.

Mrs. Shapiro, you may proceed whenever you’re ready.

Ms Harriet S. Shapiro: Mr. Chief Justice, and may it please the Court.

This case is here on appeal by the Government from a judgment of Court of Claims, requiring a payment of survivorship benefits to two illegitimate children of a deceased federal employee.

The Court of Claims found the children were entitled to payment even though they weren’t -- could not meet the eligibility requirements of the Civil Service Retirement Act.

It relied upon its decision in a previous case in in which it concluded that the statutory requirement denied equal protection to illegitimate children.

The Government contends here first that the Court of Claims had no jurisdiction to award benefits in this case and second, that in any event, the statutory requirement is constitutional.

George Isaacson was a federal employee when he was killed in an automobile accident in 1974.

He was unmarried, but he was survived by two illegitimate children, Shawn and Tricia Clark, who are represented by the appellee here.

Isaacson had recognized them and was subject to a court order requiring him to make monthly payments for their support.

Although he had lived with them for a few years, he had stopped living with them more than two years before his death.

The Clark children applied for benefits under the Civil Service Retirement Act.

That Act provides for the payment of monthly benefits to the surviving children of covered federal employees.

The statute defines a child to include adopted children, as well as, stepchildren and recognized natural children who lived with a wage earner in a regular parent-child relationship.

The Civil Service Commission and the Office of Personnel Management which is a successor of this Commission have consistently interpreted the statute as denying benefits to stepchildren and to illegitimate children who were not living with the employee when he died.

Since the Clark children --

Justice Harry A. Blackmun: Mrs. Shapiro?

Ms Harriet S. Shapiro: Yes.

Justice Harry A. Blackmun: You say that though, haven’t they proposed the elimination of the “lived with” requirement?

Ms Harriet S. Shapiro: There is a proposal that was passed by the House last week, a Bill.

Justice Harry A. Blackmun: But doesn’t that come from the Commission?

Ms Harriet S. Shapiro: Yes.

The Commission proposed this statute which would amend the Act to make payments to dependent children, but would provide that either a child who lived with or who received contributions from the employee would be considered dependent.

Justice John Paul Stevens: Mrs. Shapiro, when you say that the Act is consistently been construed to require that the “lived with” requirement be met at the time of the death of the wage earner.

How many examples would there be in the reported materials that we could look at in some way or another of cases in which there was a lived with at some prior time, but not at the day the death, would there be other cases like this?

Ms Harriet S. Shapiro: I don’t believe there are significant numbers.

I am not sure --

Justice John Paul Stevens: I just don’t have any feel for how often this problem arises?

Ms Harriet S. Shapiro: It’s a consistent administrative interpretation.

Justice John Paul Stevens: But does that mean twice or a hundred times, would we know?

Ms Harriet S. Shapiro: As far as --

Justice John Paul Stevens: Or once maybe just this case, wasn’t it?

Ms Harriet S. Shapiro: No.

I know that it’s a more --

Justice John Paul Stevens: I know normally they do things as of the date to death, but I’m just wondering how often it really a significant that the target --

Ms Harriet S. Shapiro: I’m not sure that it has been litigated before, but the --

Justice Harry A. Blackmun: I think what bothers me is your use of the word “consistent” because if the Commission in now behind this proposed legislation, they’re receding from what may have been a consistent position, aren’t they?

Ms Harriet S. Shapiro: The legislation is based on the Court decisions.

It’s not that they have made an administrative determination.

Justice William H. Rehnquist: The Commission interpret the Act as passed by Congress or just make recommendations for changing?

Ms Harriet S. Shapiro: Well, the Commission, it interprets it in an administrative act in paying benefits.

The Clark children sued in the Court of Claims under the Tucker Act, challenging both the Commission’s interpretation of the Act and its constitutionality as so interpreted.

They argued first that they were entitled to benefits under the Act because they had once lived with Isaacson.

Alternatively, they argued that the Act as interpreted by the Commission denied them equal protection because they could not qualify for benefits by proving that they were actually dependent on their father.

After this suit was filed, but before it was decided by the Court of Claims, that court decided another case challenging the “lived with” requirement in the Civil Service Retirement Act, that case was Gentry versus United States.

Gentry involved a child who had never lived with the federal employee, and the court in that case found that the statutory requirement was unconstitutional.

So when it decided this case, the Court of Claims followed Gentry.

The Government didn’t seek to ask -- didn’t ask this Court to review this decision in Gentry because we lost track of it after the Court of Claims remanded the case for further findings by the Commission.

We learned of the entry of the final judgment only a few days before our time to petition for certiorari expired and substantially after the time for a note on appeal.

By that time, we knew that the Clark case and others were coming along and that the Commission was working on legislation.

In November of 1977, the District Court for the District of Columbia decided Proctor versus United States and enjoined the Commission from applying a “lived with” requirement to illegitimate children.

So, the Commission began paying benefits under that order from and after December 1, 1977.

Finally, in the only class action so far, Jenkins versus the Office of Personnel Management, the District Court for the District of Columbia ordered the Office of Personnel Management to pay benefits retroactively to February 1972.

That order imposed a much heavier burden on the resources of the retirement fund.

That factor, plus the importance of the retroactivity question for other federal benefit programs has led to our decision to seek review in this Court in this case.

I propose to focus today on the question of whether the Court of Claims had jurisdiction to decide this case.

Justice William J. Brennan: Do I understand Mrs. Shapiro that the Clark children are now for the reasons you gave us, receiving benefits?

Ms Harriet S. Shapiro: They are receiving benefits under the decision of the Court of Claims.

They have not received the lump sum that would take them from the time their father died up till the time the stipulation for the entry of judgment was entered, but they are currently receiving $187.00 a month.

I intend to rely primarily on of our briefs for the issues raised by the appellee concerning this Court’s jurisdiction and the correctness of the agency’s interpretation of the Act.

I would like to discuss the jurisdiction of the Court of Claims and I have a few comments to add towards the discussion in our brief on the merits.

Justice Harry A. Blackmun: Somewhere along the line, have you discussed the appellee’s suggestion that “lived with” may be applied to some period other than at the time of death?

Ms Harriet S. Shapiro: Well, our argument on that really is fairly simple.

The purpose of the statute is to replace the support that was lost when the wage earner died, and the “lived with” requirement as interpreted by the agency and is that the time when the support was lost was at the wage earner’s death for children who are living with the wage earner at that time.

If they stopped living with the wage earner as the Clark children did several years previously, that is the point at which the statute assumes the support was lost.

Chief Justice Warren E. Burger: What if they never lived with the father, but he arranged for them to be somewhere else and paid for all their living?

Ms Harriet S. Shapiro: Well then, they are not qualified under the statute because they were not living within in a regular parent-child relationship when he died or --

Chief Justice Warren E. Burger: So that the support factor vanishes under that language?

Ms Harriet S. Shapiro: Well, the theory behind the statute is that for illegitimate children, the easiest and simplest and most accurate way of determining whether there was support is by simply looking to see whether they were living with the wage earner.

Chief Justice Warren E. Burger: Well, on the contrary, if the man can show canceled checks over the period of 10 years, tax deduction every year for support, then that would be pretty good evidence, wouldn’t it?

Ms Harriet S. Shapiro: It would be an alternative way of proving that the --

Chief Justice Warren E. Burger: The support factor?

Ms Harriet S. Shapiro: Yes.

Chief Justice Warren E. Burger: As distinguished from the “lived with” factor?

Ms Harriet S. Shapiro: That’s right, but the congressional judgment was that as this current Court has frequently recognized, the classifications may be minimally inaccurate in some situations.

You don’t focus on the facts of the individual collocation look to see whether the classification for the general universe is reasonable.

Chief Justice Warren E. Burger: Theoretically, they could live with the father without receiving any support from whom with a grandmother paying the father for all their care?

Ms Harriet S. Shapiro: It certainly is theoretically possible.

The congressional judgment was that in the usual case, the illegitimate child who is living with his father is the one who is most likely to be supported and that’s the situation in which payments are to be made and that these other unusual situations fall outside the statute.

Justice Byron R. White: What about legitimate children?

Ms Harriet S. Shapiro: Legitimate children are deemed to have been supported whether or not they’re living with the wage earner.

Chief Justice Warren E. Burger: Or whether or not they are in fact supported?

Ms Harriet S. Shapiro: Right.

The statute as the statute in Lucas is somewhat over inclusive for legitimate children.

Justice Byron R. White: What do you suggest the Congress is attempting to do to avoid that the problems of the proof in individual cases?

Ms Harriet S. Shapiro: They provided for a “lived with” requirement that isn’t --

Justice Byron R. White: Why?

Ms Harriet S. Shapiro: Act, because it’s an accurate indicator of support in generality of the cases.

Justice Byron R. White: In the generality, but, so the only advantage was to avoid individualizing cases?

Ms Harriet S. Shapiro: That’s right.

And the census report that we cited in our reply brief indicates that in fact, it’s an accurate indicator in all, but 4% of the cases.

Justice Byron R. White: Well, there’s the 4%.

Ms Harriet S. Shapiro: There’s the 4%.

Justice Byron R. White: And you just don’t think that it is necessary in legitimacy cases to individualize?

Ms Harriet S. Shapiro: That’s what we get from reading Lalli in combination with Lucas and Jimenez is that, although the statute may be somewhat unjust in individual cases, as long as it’s finally tuned and substantially related it’s constitutional.

Chief Justice Warren E. Burger: But it isn’t finely-tuned with respect to this one category of children, is it?

Ms Harriet S. Shapiro: At most, there are 4% of the total universe and that’s a finely-tuned statute.

Justice John Paul Stevens: That 4% figure, I think is somewhat misleading, isn’t it?

Does that include the children who’ve been acknowledged by the illegitimate father?

Ms Harriet S. Shapiro: Yes, it includes --

Justice John Paul Stevens: I mean, it isn’t limited to that is what I mean.

That’s all illegitimate children, isn’t it?

Ms Harriet S. Shapiro: That’s --

Justice John Paul Stevens: And where the statute already excludes illegitimate children who have not been acknowledged by their father, and the only relevance statistic and the additional requirement of “lived with” would be those who have not only lived with their parent, but also had been acknowledged, and your figure doesn’t take that into account at all.

There’s 4% of all illegitimate children is what you’re lived with or never married mothers.

Ms Harriet S. Shapiro: Right.

Justice John Paul Stevens: But isn’t the universe cut down to those who’ve been acknowledged by their father, by the statute?

Ms Harriet S. Shapiro: But even so, there’s no more than 4% of any illegitimate children who are receiving support -- payments from their father.

So that --

Justice John Paul Stevens: I just don’t see how that’s relevant to the “lived with” requirement.

Now, if you struck the “lived with” requirement out entirely, you still have the 4% figure?

Ms Harriet S. Shapiro: That may mean that the “lived with” requirement is somewhat over inclusive.

Justice John Paul Stevens: And probably didn’t -- well, may I ask you this on the “lived with” requirement.

Is the congressional judgment that -- is it your theory that the congressional judgment, if you have a child, an illegitimate child who was acknowledged by his father and lived with the father for a particular of time and then stopped living with him, that it’s reasonable to assume that the father then discontinued support because he did in this case?

Is there any example that we know of anywhere where a father both acknowledged the child, lived with him for a substantial period of time and left and then stop supporting them?

It seems to me the law would not permit him to stop supporting.

Ms Harriet S. Shapiro: Well, --

Justice John Paul Stevens: Under that said affair and how could Congress have reasonably assumed that he would then just walk away from the child and no further obligation?

Ms Harriet S. Shapiro: Well, whether or not there was a court order that it doesn’t necessarily follow that he complied with it --

Justice John Paul Stevens: But which is the more probable?

That you have both a formal acknowledgment and a family relationship, and then the father abandons the child.

Wouldn’t there normally be -- and he continues to earn money, he’s got a job and is paying, the Government job in this case, and then you would think then, the Congress reasonably thought that in the normal run of cases he would stop providing any support for the child.

The only case we know about is this one which it didn’t happen.

Ms Harriet S. Shapiro: Well, that’s the congressional judging.

Justice John Paul Stevens: Do you think that Congress actually made that judgment?

See, they make a contrary judgment, if you construe the statute to mean “lived with” at anytime, but that’s critical to your case, for your construction of the statute, if Congress really thought that?

Ms Harriet S. Shapiro: That’s correct, and this is the construction that the agency is following --

Justice John Paul Stevens: It does exist and it followed in at least one case.

And didn’t the Court of Claims also construe the statute that way, the Gentry case in holding it unconstitutional?

Ms Harriet S. Shapiro: No.

In the Gentry case, that issue was not involved because the Gentry children, they had not lived with their father at all.

Justice Potter Stewart: Ever, ever?

Ms Harriet S. Shapiro: Yes.

Justice Potter Stewart: But by implication, I suppose they did it here, didn’t they?

Ms Harriet S. Shapiro: Well here, they didn’t -- they followed Gentry --

Justice Potter Stewart: I mean, they wouldn’t have held it unconstitutional if they construed the statute as in the ways suggested by my brother Stevens' question?

Ms Harriet S. Shapiro: That’s, that’s true.

Justice Potter Stewart: Correct?

Ms Harriet S. Shapiro: That’s true.

This case is not is not a statutory construction case.

Justice Potter Stewart: It’s a constitutional.

Ms Harriet S. Shapiro: It’s a constitutional.

Justice Potter Stewart: Right and they wouldn’t certainly logic wouldn’t have held it unconstitutional had they construed the statute?

Ms Harriet S. Shapiro: That’s true.

Justice Potter Stewart: The other way?

Ms Harriet S. Shapiro: Yes.

Chief Justice Warren E. Burger: What would be the situation of an illegitimate child whose father having acknowledged as here was a military officer or foreign service officer moving from one place to another all over the world, and so he arrange to have the children and when they were in there teens for example to be in private schools in the school year and summer camps in the summer?

Ms Harriet S. Shapiro: That would be considered to be living with in a normal parent-child relationship.

It’s not --

Chief Justice Warren E. Burger: It would be?

Ms Harriet S. Shapiro: Yes, it would be.

It’s not that they have to be under the same house.

Chief Justice Warren E. Burger: That’s not consistent.

Ms Harriet S. Shapiro: Under same roof.

Chief Justice Warren E. Burger: That’s not consistent with the answer you gave me earlier.

You said in the hypothetical case of the man who paid their support, but had to move somewhere, there would be out?

Ms Harriet S. Shapiro: Well, if the situation is that they are in school or in summer camp or in other situation that’s similar to what happens was in normal parent-child relationship.

Chief Justice Warren E. Burger: Do you know whether there are any administrative decisions that would be consistent with your answer in these cases?

Ms Harriet S. Shapiro: I’m not aware of any that go along this line.

Chief Justice Warren E. Burger: I got the impression from your earlier discussion that “lived with” meant precise to that lived with in the normal, I thought you said normal and ordinary parent-child relationship?

Ms Harriet S. Shapiro: Well, I don’t think that sending a child to school with the intent that on summer vacations or when it’s feasible, they will resume the normal relationship of living together in the same house is inconsistent with living within the normal parent-child relationship.

It’s --

Justice William H. Rehnquist: And all we’re dealing with is children under 18 years of age here, are we not?

Ms Harriet S. Shapiro: Yes.

Justice William H. Rehnquist: It is not the question about 30-year-old child --

Ms Harriet S. Shapiro: Oh, no.

Justice William H. Rehnquist: -- who might have lived with for 18 years and then simply became emancipated?

Ms Harriet S. Shapiro: No, no, no.

And the statute does have a provision as a Social Security Act does for children over 18 who are in school or students.

They are continued -- benefits continued until they reach 22, I believe it is.

But, the point is that what the Act is looking for is an indication that this is a normal family relationship that these children are being treated as children usually are.

They go to school, they go to camp or -- but they are still children in the family.

Chief Justice Warren E. Burger: If the people in these hypothetical situations where treated that way, then they are making an individualized judgment and not a rigid categorical judgment?

If they’re going behind the “lived with” requirement and considering the evidence that the father is really paying for their support, but doesn’t want to maintain or can’t maintain a home?

Ms Harriet S. Shapiro: Well, I think --

Chief Justice Warren E. Burger: A familial home.

Ms Harriet S. Shapiro: You’ve got two different situations.

The situation that I thought you were referring to originally is a situation in which the child is living either in a foster home or in some other situation --

Chief Justice Warren E. Burger: Let’s say, living with his grandmother and that the father is paying abundantly for support.

Ms Harriet S. Shapiro: With no intent that they ever going to resume living together --

Chief Justice Warren E. Burger: Just exactly what I have told you?

Ms Harriet S. Shapiro: Well, in that case, that does not sound to me, again, this is something for the agency but it does not sound to me like the normal parent-child relationship.

In contrast to the situation where you’re sending a child to school or sending him to camp and when he is through with that, he comes home.

There are two are distinct situations.

Justice Byron R. White: Well, would you say that -- say that there is an acknowledged illegitimate child living with the father at the time of his death, but he has been supporting the child, does that -- is that -- would that be construed to be a regular parent-child relationship?

Ms Harriet S. Shapiro: If he is living with him, yes.

Justice Byron R. White: Well, he is not supporting him.

Ms Harriet S. Shapiro: Well --

Justice Byron R. White: He is just living with him.

As a matter of fact, he is not supporting himself?

Ms Harriet S. Shapiro: Well, that is what the statute -- the statute does not specifically says support, but the statute says --

Justice Byron R. White: It says regular parent-child relationship.

Ms Harriet S. Shapiro: Yes, but --

Justice Byron R. White: What do you mean by that?

Ms Harriet S. Shapiro: That refers to the living with.

Justice Byron R. White: It must assume -- so it is not open to the Government to deny benefits on the ground that the father isn’t actually supporting the child?

Ms Harriet S. Shapiro: Not if he is living in the same household with him or this is other situation.

The Tucker Act gives the Court of Claims jurisdiction over a claim against the United States founded on the Constitution or an Act of Congress.

There must be money already due to plaintiff from the Government before the Court of Claims has jurisdiction.

If it has jurisdiction because money is due, the Court of Claims may also grant perspective relief, but only as an ancillary remedy.

This means that the Court of Claims here could properly order the government to put Shawn and Tricia Clark on the Civil Service annuity rolls only if they had accrued claim based on some statute or on the Constitution against the Government for money already due them, and they did not.

The Court of Claims believed that the children’s claim for accrued benefits was based on the Civil Service Retirement Act read in the light of the Constitution, but that makes an unconstitutional intent to deny benefits into an intent to grant benefits.

Whether or not the statutory denial of benefits to the illegitimate children who are not living with the wage earner is constitutional, that denial is what Congress enacted and only Congress and not a Court can change it into a statutory direction to pay benefits.

A Court can decide that “lived with” requirement unconstitutionally discriminates against illegitimate children.

So that the Act can no longer be enforced as written.

And if a District Court reaches that conclusion, it can enjoin the agency from continuing to make the unconstitutional discrimination required by the Act.

But of course, that’s an independent injunction power that the Court of Claims doesn’t have.

Justice John Paul Stevens: What would that mean Mrs. Shapiro?

There just don’t be anymore child’s benefits?

Ms Harriet S. Shapiro: Well, that’s one alternative.

Justice John Paul Stevens: Well, that’s the alternative that you recommend.

Pay no more child’s benefits until the statute is made constitutional?

Ms Harriet S. Shapiro: No, that’s -- if a suit in the Court of Claims -- our submission is that the Court of Claims is the wrong court in which to be presenting this claim.

Justice John Paul Stevens: It had no jurisdiction?

Ms Harriet S. Shapiro: It had no jurisdiction because there was no accrued claim --

Justice Potter Stewart: Because jurisdiction is for claims for money based upon the constitutionary statute?

Ms Harriet S. Shapiro: Exactly.

Justice John Paul Stevens: But your position is that the plaintiff should then go to another forum and get an injunction against paying any child benefits to anybody, that’s what would have to be done if the statute --

Ms Harriet S. Shapiro: In fact, that the --

Justice John Paul Stevens: You think that is what Congress would have wanted in this situation?

Ms Harriet S. Shapiro: In this particular situation --

Justice John Paul Stevens: That upholds child’s benefits.

Ms Harriet S. Shapiro: These, for the Clark children are presumably part of the Jenkins class and the Jenkins case is in the District Court. [Voice overlap]

Justice John Paul Stevens: But you argued there, do you -- does the Government argue there that all child’s benefits should cease until Congress remedies the situation?

Ms Harriet S. Shapiro: No.

What we are arguing in Jenkins is that the benefits have been paid since December 1, 1977 under the Proctor decision.

Justice John Paul Stevens: Without statutory authority occurring [Voice Overlap]

Ms Harriet S. Shapiro: Well, that’s right.

That is no --

Justice John Paul Stevens: But your argument there, I take it then, is that no benefits should be paid?

Ms Harriet S. Shapiro: The argument there is that no benefits should be paid before December 1, 1977.

Justice John Paul Stevens: But why even currently?

What’s the statutory authority for current benefits?

Ms Harriet S. Shapiro: Well, it is not a statutory authority.

That’s the standard doctrine of severability.

As I said, when a Court finds that the denial of benefits is -- the discriminatory treatment is unconstitutional then it can as an alternative to holding that no benefits are payable.

It can direct that benefits be paid either to all children.

Well, in this situation, you could have either benefits paid to all legitimate children who meet the “lived with” requirement, that is you apply the qualification equally to all children.

Justice John Paul Stevens: Well, take, assume these plaintiffs were not in the Court of Claims, but were in the Federal District Court and assume they win on the merits, what remedy would be appropriate in the Government’s view?

Ms Harriet S. Shapiro: If these children were in the District Court?

Justice John Paul Stevens: Yes.

Ms Harriet S. Shapiro: Well, then the Court would have two alternatives and we would not argue that the “lived with” requirement should be applied to all children.

We would agree that it would be appropriate under the injunction power to require payment to these children even though they could not meet the statutory requirement.

Justice Potter Stewart: But the Court would have the alternative of say, of enjoining any payments to any children at all?

Ms Harriet S. Shapiro: Any payments --

Justice Potter Stewart: That alternative was illustrated on the case last term in which Justice Powell disagreed with the holding of the Court?

Ms Harriet S. Shapiro: I believe that’s --

Justice William H. Rehnquist: Mrs. Shapiro, we have had a number of cases you can almost learn who has been Secretary of HEW from the case as Weinberger, Matthews, Califano, etcetera and many of them have involved challenges to congressional limitations on payments to illegitimate children.

Have any of them up to now ever been brought in the Court of Claims?

Ms Harriet S. Shapiro: I don’t believe so.

I don’t think they have.

Chief Justice Warren E. Burger: Assume a three-judge Courts perhaps all of them, I am not sure?

Ms Harriet S. Shapiro: Yes.

I am not sure that all of them.

Justice Byron R. White: In answering Mr. Justice Stevens, in what remedy would be available in District Court, you said, the Court would have a choice and it could order the payment of benefits, how about back benefits?

Ms Harriet S. Shapiro: No, that is the same -- that is barred by sovereign immunity and that’s the same argument in the District Court.

It is not a jurisdictional argument because the District Court does have the jurisdiction to issue.

Justice Byron R. White: I understand, but you say that even if the District Court decided that you’ve been incorrectly construing the Act --

Ms Harriet S. Shapiro: That’s right.

Justice Byron R. White: -- and that you should have been paying these benefits the entire time.

The District Court could not enter a judgment for past benefits.

Ms Harriet S. Shapiro: Precisely.

Justice Byron R. White: Because as you construed the Act, Congress has not waived sovereign immunity to that extent?

Ms Harriet S. Shapiro: That’s exactly right, yes.

That the waiver of sovereign immunity under 5 U.S.C. 702 extends only to injunctions for the future requirement.

Justice Byron R. White: Is there some authority for that?

Is that --

Ms Harriet S. Shapiro: This is what we --

Justice Byron R. White: In fact that the Court of Claims disagrees with you.

Ms Harriet S. Shapiro: Well, we retest this Court’s decision in Testan; Edelman v. Jordan certainly suggests that result.

Chief Justice Warren E. Burger: On your hypothesis responding to Mr. Justice White, the only remedy then to enforce the judgment of the Court of Claims would be to get a private bill in the Congress?

Ms Harriet S. Shapiro: For retroactive benefits.

The Court of Claims, as I say, is the wrong court, but if you had a decision in a District Court, you could get future payments but for retroactive payments, it’s only Congress whether it’s a private bill or it’s an amendment of the statute saying that they intend to have it be paid retroactively.

Chief Justice Warren E. Burger: At times, the Court of Claims in -- not in these situations, but in some where back payments were involved, having their opinions recommended that the Congress make up an active private bill, have they not?

Ms Harriet S. Shapiro: I am not sure.

Perhaps, but that is certainly would be an alternative.

Chief Justice Warren E. Burger: It was established as an arm of Congress, of course, originally?

Ms Harriet S. Shapiro: I see my time is up.

Chief Justice Warren E. Burger: Mr. Merrigan.

Argument of Edward L. Merrigan

Mr. Edward L. Merrigan: Mr. Chief Justice, may it please the Court.

With just a brief word about the facts Your Honors, and I think the Court fully understands this case from the questions such you propounded to the Government.

The two federal employees involved in this case, one was the father, Mr. Isaacson; the other was the lady involved, Ms. Patricia Aileen Clark, both worked for the Veterans Administration at Fort Harrison, Montana and they commenced to live together in 1965 and early 1966.

And during the period of time they lived together, they had two children, Shawn Clark and Tricia Clark and they continued to live together with the children in a regular husband-wife, parent-child relationship for the world to know, through 1971.

In 1971, Mr. Isaacson moved out of the common dwelling and Mrs. Clark brought a paternity action in the Court in Montana.

Mr. Isaacson while alive appeared in that case, was represented by counsel.

The Court entered a paternity order against Mr. Isaacson which specifically declared him to be the father of these two children.

Then by stipulation and judgment of the Court, he was ordered to pay $5,000.00 representing the back support payments he owed the children for the time he had moved out of the house.

He then stipulated and was ordered by the Court to $120.00 a month for their future support.

He then stipulated and was ordered by the Court to make them the beneficiaries of two life insurance policies, one in New York Life Insurance Company policy and the other is Federal Government Employees Group policy.

He made all of the support payments to the children forward to his death not directly, but by deductions or allotments out of his federal salary up to the time of his death in 1974 in an automobile accident.

Chief Justice Warren E. Burger: So, would you say that he was doing what was suggested in some of the hypothetical questions that is he was providing support for them without providing a familial home for them?

Mr. Edward L. Merrigan: He did everything for the children except to [Attempt to Laughter] marry the mother and continued to actually live with them physically until the date of his death from about 1972 to 1974.

He was a father in every sense of the word by court order, by support payments, by living with them for long period of time and the Government in this case in its reply brief concedes that there is no need under the “lived with” requirement of the statute for a permanent “living with.”

The Government concedes that it can be a temporary or a periodic separation in that relationship without breaking the chain supposedly.

This has never been judicially declared, but the Government concedes it in its reply brief.

Justice Potter Stewart: But the difference in opinion between you is that the “lived with” has to be at the time of the death?

Mr. Edward L. Merrigan: Well, I think if you construe the statute itself --

Justice Potter Stewart: Did the Government said, or did it say not?

Mr. Edward L. Merrigan: Mr. Justice Stewart, you construe the --

Justice Potter Stewart: Well, isn’t that --

Mr. Edward L. Merrigan: That’s the difference.

Justice Potter Stewart: Have I directly identified the difference of opinion?

Mr. Edward L. Merrigan: When we sued in the Court of Claims, we specifically asked the Court to award a judgment here based on an Act of Congress with the “lived with” requirement in the law because we say that it says “lived with”, it does not say “live with” or “living with” in the statute.

It says “lived with” and here the Court and the Government and everybody involved concedes that they lived with and that there was that [Attempt to Laughter] open to the word “lived with” in the past.

I think that the problem that we run into in this case is the construction given to the statute by the Civil Service Commission which says --

Justice Potter Stewart: Well, then by the Court of Claims?

Mr. Edward L. Merrigan: Well, not really by the Court of Claims.

Justice Potter Stewart: How could they have held it unconstitutional, had they not construed it the way the Government does?

Mr. Edward L. Merrigan: Well, I think that the statute was declared unconstitutional in Gentry.

There is no long discussion of the constitutionality in our case because they simply adopt the Gentry.

Justice Potter Stewart: I know there is no long discussion on it, but as a matter of logic, how could they have it?

Mr. Edward L. Merrigan: They simply held that the “lived with” requirement, as I am trying to point, Your Honor, in a moment, is simply a total bar to any recovery for illegitimates in 90% of the cases by the very term illegitimate, [Attempt to Laughter] meaning that the father and mother are not married.

In more than 90% of the cases, the father is either married to somebody else, or he is a bachelor who does not want to marry the mother and is therefore living somewhere else and so if you can’t meet the “lived with” requirement with the father, are you totally barred from benefits at all?

So --

Justice Potter Stewart: So, but you’re not arguing that your clients can meet the “lived with” requirement?

Mr. Edward L. Merrigan: We say that in this case, truly, jurisdiction in this case I think, this case should be settled in our judgment if we can propose to the Court that if you looked at the statute and construed that they had lived with for the period of time that we just referred to, that there was the support, that they did meet the requirement of the statute, and therefore, the Court of Claims clearly had jurisdiction because we are suing on an Act of Congress where including the “lived with” requirement and therefore they are entitled to judgment on this 28 U.S.C. 1491.

Justice Byron R. White: You’re seeking the support of judgment on a different ground than the Court of Claims gave you judgment?

Mr. Edward L. Merrigan: I say that this Court could if it wanted to avoid the constitutional question in this case say that the statute properly construed, should have grant a judgment here without reaching the constitutional question.

Justice William H. Rehnquist: What if the father had lived with the child for the first three months of its life and then not lived with it for the subsequent 17 years, nine months of its life and the child was 18 at the time of the father’s death?

Mr. Edward L. Merrigan: When you start these types of requirements in the statute, obviously, as you change the facts, it gets even worse, it gets better.

Justice William H. Rehnquist: Yes, isn't that just why Congress has to draw a line?

Mr. Edward L. Merrigan: Well, Congress did not draw the line at “lived with” or “living with”.

The amendment that is now proposed in Congress today talks in terms of living with meaning --

Justice William H. Rehnquist: But what were the -- no one has any claim under an amendment that is proposed in Congress today, did it?

Mr. Edward L. Merrigan: I do not say that we are relying on the amendment that is proposed today.

The statute today speaks in terms of “lived with.”

The amendment proposed in Congress today is talking in terms of “living with” meaning --

Justice Byron R. White: But the agency construction is of the present language is “living with?”

Mr. Edward L. Merrigan: “Living with,” I think they have changed the Act of Congress.

And what I am trying to say to you, Your Honors, is that if we wanted to avoid the constitutional issue in this case, as we originally sued in our petition of the Court of Claims, is that these children, truly in this case, meet the statutory requirements.

And if that be true, everything that Mrs. Shapiro said this morning about the jurisdiction of the Court of Claims automatically falls because we are suing on an Act of Congress.

Justice Byron R. White: But wasn't your -- wasn't -- did the Court of Claims reject your construction of the statute in Gentry?

Mr. Edward L. Merrigan: No, Your Honor.

Justice Byron R. White: I know you weren’t in Gentry but was that issue before you were on it?

Mr. Edward L. Merrigan: No, Your Honor, It was not because the children never lived with their parent in Gentry.

What happened is by the time --

Justice Byron R. White: But the Court of Claims, in affect then in this case, rejected your statutory claim?

Mr. Edward L. Merrigan: No, the Court of Claims did not pass on it, Your Honor.

What happened is, we moved for summary judgment.

Justice Byron R. White: What makes you think it didn’t enter a judgment?

Mr. Edward L. Merrigan: Well, what I think happened in our case, Your Honor, is this.

Between the time we filed our petition in the Court of Claims and the time they rendered summary judgment, this statute had been declared unconstitutional five times.

Justice William H. Rehnquist: Are you suggesting that any federal court has the authority to reach a constitutional issue without first passing on a necessarily included statutory question?

Mr. Edward L. Merrigan: I think in this case, if Your Honors will look at the judgment in this case, which is of course in the appendix, what happened is the Court of Claims had previously ruled a “lived with” provision to be unconstitutional.

And therefore, rather than reach -- rather than re-construe or apply the provision in our case, they deemed it to have been declared unconstitutional in the past.

Justice Byron R. White: Any way here?

Chief Justice Warren E. Burger: But doesn’t that mean they were adopting the Gentry approach?

Mr. Edward L. Merrigan: I think they – there’s no question but that the Court of Claims in our case ruled that the statute was unconstitutional.

I am suggesting too, Your Honors, that we have been swept under the facts of this case if you construed the statute to mean “lived with” to cover the facts of our case, that we meet the terms of the statute without the constitutional issue being raised.

And if that be true, there’s no question, but that the Court of Claims had jurisdiction under 28 U.S.C. 1491.

There’s no question that this Court would not have jurisdiction under 1252 of Title 28 because of course, there is no constitutional issue raised if you would decide this case on that basis.

But I am not trying to avoid the constitutional issue because when you move on to that issue in this case, the “lived with” requirement which is the only test as to whether or not an illegitimate child can recover for all practical purposes is a total bar to almost all illegitimates because what it means in most cases is an illegitimate child is the child of a mother and father who are not married, in more than 90% of the cases do not live together.

Under the laws of most states, the mother has custody of the child.

In most cases, the father is either living with another wife or living as a bachelor who does not want to live with the other woman who had the child and so the poor child is left [Laughter Attempt] without a father, without the ability to lived with, without the ability to meet the test in any circumstance.

So, by making the “lived with” requirement alone, the test is the equivalent of striking most illegitimates’ ability to recover under the statute at all and I think that is what made five courts in the federal system, two of them three-judge courts declare the statute uniformly unconstitutional.

Some of the questions, Your Honors have asked, make it clear.

A federal employee for example who did want to live with the child, who is assigned to Saudi Arabia in his government job, would be over there, the child would be here with the mother, not eligible.

A Government employee who has no home, who travels all the time, the child lives with the mother, no ability for the child to recover the benefits.

In other cases, where the parents lived together for a long period of time, 10 years, 12 years, and then the father suddenly moves out in spat with the mother, no ability for the child to recover because he can’t show he was physically living with the child at the moment of death.

Now, the Government says, children can protect themselves against that, that they can insist that they lived with the father.

Well, here is a three-year old child, a six-year old child.

“Mother, I insist on living with my father to protect my federal annuity” or “Father, I insist on you letting me move in with you to protect my federal annuity.”

That’s what the Government is asking us to do in this case.

Your Honors, as far as the statute itself is clearly enacted by Congress to protect dependents who are looking to the deceased employee for support.

In this case, we have the order of a Montana Court decreeing support.

We have the support being made throughout the employee’s life right up to his death through allotments out of his federal salary.

So, there is no guess work on the part of the Government as to whether he was supporting the children, it came from his salary.

Then we have the father in the life insurance policy, the federal group life insurance policy paying after death for the support of the children and yet they have been denied the benefits in this case on the ground that they simply did not physically lived with him at the moment of death.

The Government says, perhaps spurious claims are prevented by this sort of a statute.

Well, let’s take the case that is so well-known today of young women moving in with a federal employee, let's say, bringing in a small child that she had from some other relationship and then the federal employee dies, so the mother says, “chance for our federal annuity.”

This child was the federal employee’s child.

We were living with him at the time of his death and therefore, I want the annuity.

Under the statute, that is all she'd have to say, if she is willing to lie because then she could show they were living together in regular parent-child relationship.

Justice Potter Stewart: She has to prove the father acknowledge the child?

Mr. Edward L. Merrigan: No.

Not under the statute.

Justice Potter Stewart: Well, she does have to prove that the child or children were the father -- the issue of the father.

Mr. Edward L. Merrigan: Well, the children --

Justice Potter Stewart: But you say that can be proved by her perjury?

Mr. Edward L. Merrigan: It could be proved spuriously.

That’s the only suggestion I am making, Your Honor.

I am not trying to say that this sort of claim should be set-up but I think the statute promotes it.

Justice John Paul Stevens: What about the word “recognized stepchild” or “recognized natural child,” doesn’t that mean recognized by the natural father?

Mr. Edward L. Merrigan: Recognized, right.

Justice John Paul Stevens: I could assume that it did, yes.

So, that in your hypothetical case, the women would not recover it?

Mr. Edward L. Merrigan: The woman could recover on other grants because adopted children or stepchildren could be included in the same “lived with” requirement.

But I say -- all I am trying to say, Your Honor, is it opens the door for spurious claims on the ground that children that were not really the children of that particular father were living with him at the time of death and the mother then can fabricate a claim around it.

All I am trying to say is -- I am not trying to say this should be allowed, I am not trying to say that that spurious claim is a sound claim, but what I am trying to say is that this particular type of statute promotes that particular type of claim.

Justice William H. Rehnquist: But she would have to perjure herself both as to the question whether the father was the actual father and as to whether he recognized the child.

Mr. Edward L. Merrigan: Well, Your Honor, I think that is true.

Justice William H. Rehnquist: I mean, presumably, there are an of a lot of lawsuits you can imagine that could go of on an unjust result as a result of perjury which wasn't detected by the finder of fact.

Mr. Edward L. Merrigan: I raised the possibility only because one of the defenses for this statute is that it was enacted to protect the Government rather against spurious claims.

Chief Justice Warren E. Burger: You don’t need a broad holding here to support your position.

All you need is that a child who has been legally recognized by a Court here finding --

Mr. Edward L. Merrigan: No question, Your Honor, no question.

I think we fit in this particular case every requirement that could possibly be made for an illegitimate child.

There was the living together.

There was the parent-child relationship.

There was the decree of the Montana Court and there was the support payments not only through death, but after death through the insurance.

Justice Lewis F. Powell: How does the commission construe the word “recognized?”

Does it require some formal act of recognition by the father or by Court?

How does it construe it?

Mr. Edward L. Merrigan: I truly don’t know that, Your Honor because --

Justice Lewis F. Powell: But in all of these hypotheticals you give, the recognition is rather important, isn’t it?

Mr. Edward L. Merrigan: Well, it’s rather important.

I would --

Justice Lewis F. Powell: You have an easy case, but you have been arguing with a rather broad brush, I suggest?

Mr. Edward L. Merrigan: The word recognition, of course, I think is clear cut in any case where you have an order affiliation.

Justice Lewis F. Powell: It’s clear cut here, yes.

Mr. Edward L. Merrigan: Such as you have in Montana.

Justice Lewis F. Powell: Yes.

But this example you gave of moving in and dying, and the wife coming along and saying what you say he said?

Mr. Edward L. Merrigan: I want you to understand, Your Honor, that that idea did not only originated with me.

It was discussed in Proctor decision, it was discussed in the Gentry decision that this thing could happen.

Justice Lewis F. Powell: But all you are saying today is that there must be a court order, so far as you are concerned?

Mr. Edward L. Merrigan: Certainly, there should be it.

When there is a court order that there can be further doubt.

I think the other thing is that showing of actual support that he contributed to support And what the Government is now proposing to Congress, and it is already passed the House and is well along in the Senate is that there be a “living with” as opposed to “lived with” and that there be a showing that he contributed to the support of the child prior to death.

I suggest to you that that’s going to require a rather case-by-case determination.

It is not exactly the uniform presentation that would usually be required under these other statutes.

So, Your Honors, where I think we find ourselves in this case is this.

Here we have five Federal Courts in the past that have uniformly held the present statute to be unconstitutional and as a result, all of the children in those cases are now recognized to receive their benefits under the statute.

On the right, we have the agency itself seeking an amendment to the law that will protect all children in the future that may be the law before this Court acts in this case.

So, we find ourselves right in the middle of the law as it has been interpreted by other Federal Courts uniformly in the past and as Congress is changing it in the future.

And we urge this Court for all of the reasons I have stated, either to uphold the Court of Claims decision on the constitutional issue or to construe this statute or and avoid the constitutional issue to say that under the facts of this case has conceded on the record by the Government, these children would be entitled to judgment under the statute, even with the unconstitutional provision in it.

On the jurisdiction of the Court of Claims just briefly, there is no question but that the Court of Claims under Section 1491 of Title 28 has clear cut jurisdiction over any claim based on an Act of Congress.

It has clear cut jurisdiction on any claim based on the Constitution of the United States.

What the Court of Claims rule in Gentry is that this particular provision is a relatively minor provision of the statute which was enacted by Congress to provide support to children of the deceased federal employees.

It was severable provision, it severed that provision, and with that severed provision out, then it granted judgment based on that Act of Congress and I urge the Court that that is correct.

Justice Potter Stewart: But you need a track on it.

That’s not the Act of Congress legislated?

Mr. Edward L. Merrigan: Well, Your Honor, the Court of Claims has jurisdiction to render judgments on the Constitution as well as on the --

Justice Potter Stewart: Yes, because nothing in the Constitution that --

Justice William H. Rehnquist: It was founded on the Constitution --

Justice Potter Stewart: Nothing on the Constitution that entitles your plans to prepayment of any kind, for anything?

Mr. Edward L. Merrigan: Well, the claim based on the Constitution here would be that they are entitled to judgment [Attempt to Laughter] under the statute as interpreted in the Court on the Fifth Amendment.

Justice Potter Stewart: But not as enactment?

Justice William H. Rehnquist: Do you think the Constitution would require the Treasury to draw a check to your clients without any Act of Congress in establishing a Social Security System?

Mr. Edward L. Merrigan: No, I don't think that’s true at all, Your Honor.

I think that what --

Justice William H. Rehnquist: How can you say, this is a claim founded on the Constitution?

Mr. Edward L. Merrigan: I say that this is a claim founded on the Act of Congress with the power of the Court of Claims to sever an unconstitutional provision from that statute.

In the Testan case, for example, Your Honor which is the case that was referred to by Mrs. Shapiro, in that case, there was a claim by federal employees that they had been misclassified by the Civil Service Commission.

Moreover, there was no statute that gave them any right of recovery based on the misclassification of position, and therefore, there was no statute.

Here the judgment of the Court of Claims is firmly grounded on the very statute Congress passed.

Justice William H. Rehnquist: But you say they had declared that it was unconstitutional in order to get to it?

Mr. Edward L. Merrigan: Not the whole statute, Your Honor.

Justice William H. Rehnquist: If, well but apart -- this is a large statute.

They had to declare one section of the statute unconstitutional?

Mr. Edward L. Merrigan: They declared a tiny sentence in this statute.

Justice William H. Rehnquist: Well, a section of the statute --

Mr. Edward L. Merrigan: A section of the statute.

Justice William H. Rehnquist: -- of which there was bore on your client’s rights.

Mr. Edward L. Merrigan: That’s correct, but what I am trying to say to you, Your Honor, then that they then pegged their decision very firmly on an Act of Congress with the voided provision out of it.

And I think that they do have the right because they do have the power to consider a claim based on the Constitution as well as Acts of Congress to look at an Act of Congress, to declare a section which is clearly violative of the Fifth Amendment void and then to grant a judgment against the United States founded on that Act of Congress.

Justice Harry A. Blackmun: Mr. Merrigan, is it correct to say that your argument comes down to whether the statute is severable, whether that section is severable and if it is, then you say, jurisdictional question is resolved?

Mr. Edward L. Merrigan: I think that’s correct.

Justice Byron R. White: That was the Court of Claims’ argument in Gentry?

Mr. Edward L. Merrigan: That is entirely correct, Mr. Justice White.

Justice Byron R. White: Without being able to say in any prior authority to that effect?

Mr. Edward L. Merrigan: I think the Court of Claims did cite some authorities [Attempt to Laughter] to that effect, although it escapes my mind at the moment.

Justice Byron R. White: Yes, I may have.

Justice William H. Rehnquist: The Court of Claims certainly has had a propensity throughout its life to try to expand its jurisdiction, hasn’t it?

Mr. Edward L. Merrigan: Well, I hope we won’t find this case as the limiting factor on that propensity but --

Justice Byron R. White: May I ask you, do you recall Judge Skelton’s concurring position?

Mr. Edward L. Merrigan: I do recall it, Your Honor.

Justice Byron R. White: Did you present that position in your case or not?

Mr. Edward L. Merrigan: We relied on Gentry totally, as well the concurring opinion of Judge Skelton.

Justice Byron R. White: So you said, not only should the statute be construed to award benefits when the “living with” had occurred any time, but you have also argued that the statute should be construed to permit proof of support in any case?

Mr. Edward L. Merrigan: Yes, Your Honor.

Justice Byron R. White: And because the Court of Claims apparently rejected that position in Gentry, but you represented it -- you presented it in your case anyway?

Mr. Edward L. Merrigan: We did.

We relied totally on the Gentry decision and in fact, I think what happened in our case is the Court of Claims looking at five straight federal decisions on the subject did not reach the construction of the statute as we urged on it.

It simply ruled on the constitutional issue.

Thank you, Your Honor.

Justice Potter Stewart: Mr. Merrigan, you have not addressed orally, unless I missed it to the question of sovereign immunity with respect to the back payments.

Mr. Edward L. Merrigan: Your Honor, clearly, the statute itself provides for payments from the moment of death of the federal employee.

The Act was passed for that purpose.

The Congress intended the Act for that purpose.

There was no withholding of sovereign immunity on the liability of the Federal Government for such payments and the only way that sovereign immunity comes into this is a claim that like in Testan where there was no statute at all, therefore, there is sovereign immunity claim of no ability of the Court of Claims to judge it.

What we are trying to say here is that the provision was severable.

There is an Act of Congress.

There is a direction of the Congress that they be paid back to the date of death.

Can you imagine, construing this -- the law in such a fashion that we have nowhere to go to collect a true debt of the United States --

Justice Potter Stewart: Well, that’s what sovereign immunity means.

You have no where to go if the only person who would otherwise be liable to you is the sovereign and he inserts his immunity, that is exactly what sovereign immunity means?

Mr. Edward L. Merrigan: And that usually arises in the case where there is no statute passed by the Congress authorizing the payment of the debt of the United States and here, there is a clear cut debt of the United States running back to the very day that the employee died.

Justice Byron R. White: And otherwise, the Government will come in and say, “Of course, you are within the class that was intended to be benefited by the statute and we owe you the money, but you just cannot sue for it.”

Mr. Edward L. Merrigan: I think that’s generally correct and by the way --

Justice Byron R. White: You mean that would be the position.

Mr. Edward L. Merrigan: That would be it.

And by the way, with that Your Honor, we would then be scooped into a class if I don’t know how many employees, some of whom have completely different positions than we have on all of the facts.

In other words, here we have a showing of support.

We have a showing of “lived with” and so forth and so on.

A class would be so general that we may fall with the class.

And even under the new [Laughter Attempt] statute, we may somehow fall with the class and so, I think that the Gentry decision is a sound decision.

I think it treated the question of sovereign immunity.

It treated the question of the Court’s jurisdiction correctly and we urge the Court to affirm us.

And I think what we are really here about is an appeal from Gentry which the Government never took.

The Government never took any appeal from any of the other decisions in the past up to this one.

And I think that we are now trying to carry on our shoulders all of the claims [Attempt to Laughter] that go the all way back to Gentry.

Justice Potter Stewart: This lawsuit wasn't brought as a class action?

Mr. Edward L. Merrigan: No, Your Honor.

It was not.

Justice Potter Stewart: Always an individual action.

Mr. Edward L. Merrigan: Always an individual action.

Thank you very much.

Chief Justice Warren E. Burger: Thank you counsel.

The case is submitted.

Featured:

Califano v. Boles - Oral Argument

Sun, 20 Jun 2010 20:42:59 +0000

Case:

Califano v. Boles

Media File:

78-808_19790425-argument.mp3

Related Transcript:

78-808_19790425-argument.xml

Transcript:

Argument of Harriet S. Shapiro

Chief Justice Warren E. Burger: We'll hear arguments next in Califano against Boles.

Ms Harriet S. Shapiro: Mr. Chief Justice --

Chief Justice Warren E. Burger: We'll just – we'll wait for the – we'll wait for this crowd to clear.

Ms Harriet S. Shapiro: I'm sorry.

Chief Justice Warren E. Burger: Mrs. Shapiro, I think you may proceed when you're ready now.

Ms Harriet S. Shapiro: Mr. Chief Justice and may it please the Court.

This case is here on direct appeal by the Government from a decision of the District Court for the Western District of Texas.

This is another case questioning the constitutionality of the Social Security Act.

The particular provision involved here is the marriage requirement for mother's benefits.

The wage earner, Norman W. Boles lived with Margaret Gonzales who is the claimant from 1963 to 1966, but they were never married.

Their son Norman J. Boles was born in 1964.

In 1966, the wage earner left Margaret Gonzales and his child and he married Nancy Boles in 1967.

There were two children born in this marriage and the wage earner died in 1971.

All three children are receiving children's benefits on Norman W. Boles' account.

Mother's benefits are paid to the widow of a wage earner who has an entitled child in her care.

For that reason, Nancy Boles is getting mother's benefits and Margaret Gonzales was denied mother's benefits because she was never married to the wage earner, eventhough her son is receiving benefits and is in her care.

The District Court read this Court's decision in Weinberger versus Wiesenfeld as holding that mother's benefits are for the child to give him the care of his surviving parent.

The court found that Norman J. Boles, the child, had himself been denied mother's benefits because of his illegitimacy.

And that that denial was inconsistent with the equal protection component of the Due Process Clause of the Fifth Amendment.

It therefore declared Section 202 (g) of the Social Security Act, the mother's benefit provision unconstitutional to the extent that it limited benefits to widows and divorced wives.

The court enjoined the Secretary from denying mother's benefits to the named plaintiffs or to the class which consists of all illegitimate children and their mothers who are ineligible for mother's benefits solely because they were never married to the wage earner.

All the children in the class like Norman Boles are getting children's benefits.

Their only claim is that they have been injured by the failure to pay mother's benefits to their mothers with whom they are living.

The true requirements for mother's benefits, they are particularly are important here are first, that they are paid to the widow or to persons that Congress has decided should be treated as if they were widows.

That of course is the marriage requirement.

Second, the widow must have in her care a child getting benefits because of his relationship to the wage earner, that usually of course would be the widow's child, but it doesn't have to be.

It's the child relationship to the wage earner, not to the person that is caring for him that counts.

And the child's legitimacy has nothing to do with the widow's entitlement.

These two requirements serve analytically different purposes.

The first, the marriage requirement defines the class of those who are likely to have been dependent on the wage earner during his life.

And that class includes all the people that Congress believed were most likely to have lost support when the wage earner died.

But lost of support is not itself enough.

The second, child in care requirement defines the group within the larger class who because of special circumstances are entitled to the replacement of lost support.

If you don't show membership within this particular subgroup, then Congress felt that eventhough you may have lost support when the wage earner died, you should make up that support through your own efforts.

Analytically, the child in care provision is very similar to the age requirement for elderly widows.

The theory behind mother's benefits is that a wife with an entitled child in her care should have the same option that she had before her husband's death.

That is, either to stay home, supported by her husband to take care of the children, or else to work and help to support the family.

The theory is that she shouldn't lose this choice when the wage earner dies, and that's why she gets the benefits.

The important point is that the class definition, the marriage requirement sets the outer limits of those Congress found likely to have lost support.

It is the group definition is a limitation on the class.

It defines the people within the class who are entitled to the replacement of lost support.

Ms. Gonzales never married the wage earner.

She can't meet any of the other tests that Congress has used to identify people who are so likely to have lost support at the wage earners death that they should be treated as though they were married.

There is no indication in the record in fact that these tests were inaccurate as to Ms. Gonzales.

There's no suggestion that she was in fact supported by the wage earner that she lost any support when he died.

Since she doesn't belong to the class that Congress has identified as likely to have lost support, she's not entitled to benefits.

This Court's cases strongly support our analysis of the statute.

The Court has frequently accepted the Social Security Acts use of marriage to show the likelihood of support.

And it has rejected claims that marriage is to inaccurate or imprecise, an indicator of the likelihood of support to serve as a basis for denying claims.

And it has also refused to require that people who cannot meet some particular part of the marriage requirement should be entitled to prove that they were in fact dependent.

And there's no reason to reach a different result here.

The court below believed Wiesenfeld required the different result.

It said that this Court held there that mother's benefits are for the child so that he can receive the care of the surviving parent.

But that misreads Wiesenfeld.

The court there was focusing on the class definition for mother's benefits, the definition of the individuals likely to have lost support when the wage earner died.

It found that husbands as a class are as likely who have lost support when the wage earner dies as are wives.

Wiesenfeld therefore supports our analysis of the statute because it recognizes that being entitled to mother's benefits depends on membership in the class likely to have lost support when the wage earner died.

That's the reason that Wiesenfeld was controlling Goldfarb.

Justice Byron R. White: What if we -- what if statute was -- purpose of the statute was to benefit to the children?

Ms Harriet S. Shapiro: Well, if you --

Justice Byron R. White: And this is a discrimination against the illegitimate?

Ms Harriet S. Shapiro: Well, if -- as long as this is a -- as long as you recognize that this is a benefit that is paid to the mother in recognition of a likelihood of support, then the answer is clear --

Justice Byron R. White: That's agreeing with you?

Ms Harriet S. Shapiro: Yes.

Justice Byron R. White: That's agreeing with you.

What if we would disagree?

Ms Harriet S. Shapiro: If -- if you feel that the case involves an intent to discriminate against illegitimate children, then we lose.

I'm not sure --

Justice Byron R. White: Except on the prospected payments?

Ms Harriet S. Shapiro: Well, the class action in the retroactive payments, yes.

I'm not sure that even in that case, the defendant -- the appellees should win because I'm not sure that if you say that this -- that you have to look at this from the point of view of the child, the statute doesn't really make any sense.

It's -- you can't look at this as a statute that says mothers of illegitimate children don't get benefits and mothers of legitimate children do.

The statute simply doesn't operate that way.

The cases we've cited in our reply brief show that it's the relationship to the wage earner plus having in you're here an entitled child.

And if you say that any illegitimate -- the mother of any illegitimate child gets benefits.

That means that illegitimate children get an advantage that legitimate children don't.

And you turn a statute -- you require the statute to favor illegitimates.

It -- it seriously distorts Wiesenfeld to read it as meaning that the mother's benefit is really a child's benefit.

The Wiesenfeld child was not a party to the case.

The court didn't consider his lost of support or need for the replacement of lost support.

He was already getting benefits based on those needs.

It was the surviving husband that was claiming the benefits.

It was his lost of support and his relationship to the wage earner that made him entitled to benefits.

Neither is it fair to read Wiesenfeld as meaning that Social Security Act benefits are somehow designed to recognize the emotional trauma suffered by a child who loses a parent, and for that reason, entitled him to the care of his surviving parent who could not have stayed home to care for him before the death.

Appellees here are not arguing that this Court's decision approving the use of the marriage requirement is wrong.

They don't even argue that the decisions of applying the marriage requirement in the particular context of mother's benefits are wrong.

They are not saying that Salfi was wrongly decided or that De Castro was.

They argue only that the requirement cannot be used to deprive illegitimate children of mother's benefits because it is a classification based on illegitimacy.

But it's not a classification based on the child's legitimacy.

It's a classification based on the caretaker's likelihood of lost support that has a disparate effect on illegitimates.

That's not enough to show a denial of equal protection.

Appellees must show an addition at least that their explanation of the statute's purpose explains its operation better than ours does.

The examples given on our reply brief show that the way the statute operates can only be reasonably explained in terms of the replacement of lost support.

It's not a grant of benefits to mothers of legitimate children and a denial to mothers of illegitimate ones.

Our example show that Congress here as it did throughout the Social Security Act chose to pay benefits only to the people who could show both that they are in a class likely to have lost support and that they have a special need for the replacement of that support.

The legitimacy of the child being cared for is totally irrelevant.

There's another example of this.

When a woman dies living young children, the surviving wage earner's mother or other relative often moves into the household to care for the children and she's then supported by the wage earner.

If the wage earner then dies, the grandmother gets no benefits.

She has the same problem that Ms. Gonzales has here.

She can't show that she's the member of any class Congress concluded was likely to have lost support when the wage earner died.

It makes no difference whether the children are legitimate or not in this example.

Appellees argument boils down to a claim that a statutory scheme that is neutral as regards to legitimacy must be turned into one that favors the mothers of illegitimate children.

This favoritism is then demanded in the name of equal protection.

This case presents an extreme example of the risks of seemingly minor changes in the benefit system established by Congress.

First, it distorts the statutory purpose of providing benefits only to those most likely to have been supported by the wage earner.

Second, the extension of benefits to an additional group means that the real purpose of the benefits may be lost.

Neither the new group nor the group that Congress defined may actually get enough support to stay home to care for children.

This is because the statute limits the total amount payable on any given wage earner's amount -- account in anyone must.

The maximum will always be reached when three survivors are being paid.

So, when you have a widow and a child being paid benefits in one household and an entitled child in another household, you will have reached the statutory maximum.

If you add the mother of the entitled child, then, the benefits that were previously payable will have to be reallocated from the benefits that were going to three people, the same benefits have to go to four people.

Justice John Paul Stevens: Is that true in the case of adding a divorced wife to the widow when the classes increase, is that same applied?

I get the impression from your opponent.

Ms Harriet S. Shapiro: It's the same principle applies.

The only people that are outside of the family maximum are the aged divorced wives.

Justice John Paul Stevens: But in this benefit scheme, if you have a widow with the child and a divorced wife with a child --

Ms Harriet S. Shapiro: Yes.

Justice John Paul Stevens: -- you divide the maximum four ways instead of it less worth?

Ms Harriet S. Shapiro: That's right.

Justice John Paul Stevens: I see.

Ms Harriet S. Shapiro: But -- and Congress concluded that in that situation, they were willing to make that that division.

But adding to it will undercut the purpose of the statute because it well, increase the number of situations in which you will have spread your benefits so thinly that they won't provide support so that nobody can't stay home.

Justice John Paul Stevens: If the Court will disagree with you and agree with the lower court on the basic issue of whether the larger class should be further enlarged to include unmarried -- persons who never married the wage earner who have children by the wage earner, you then have a kind of a tricky job of rewriting the statute it seems to me because not starts out the widow on the every surviving divorced mother.

But I don't understand you to have questioned the remedy in the sense that the court had the power not merely to hold the classification unconstitutional.

Say, no benefit shall be paid pursuant to the statute because it's discriminatory.

Rather what the court held was we're going on large the class beyond the class described by Congress and pay benefits to people Congress didn't authorize payment.

You don't question the District Court's power to grant that kind of relief as I understand you.

Ms Harriet S. Shapiro: No, we don't.

That's the kind of relief that this Court has granted in the past in cases in which it found that particular limitations.

Justice John Paul Stevens: There's another cases that construed mother, to mean mother and father or I don't know --

Ms Harriet S. Shapiro: That's true.

Justice John Paul Stevens: But here, I don't know what should do.

I don't know what word has a different meaning to all of these.

You got to just inject a new word into the statute.

Ms Harriet S. Shapiro: What the District Court said was you can't apply the statutory requirements only in the case of illegitimate children living with -- and their mothers who were denied benefits that get just kind of by main force in awkwardness pulled out that group and said that group gets benefits.

Justice John Paul Stevens: And you don't question the power of the court to have done that?

I just want to be clear about that.

Ms Harriet S. Shapiro: No, we don't.

Well, we don't question their power.

We certainly questioned the advisability of it and --

Justice John Paul Stevens: I understand and that they said they run on the merits and that sovereign immunity point to the others --

Ms Harriet S. Shapiro: Yes, yes.

Justice John Paul Stevens: -- but I just want to focus on that --

Ms Harriet S. Shapiro: That's -- that's right.

Justice Potter Stewart: But even if the court is right on the merits that this is a non-constitutional legislative scheme, could not be argued following up my brother Stevens that that would be the end of the court's functions, not to rewrite the statute to give benefits to other people, but simply to say this is what Congress has enacted as constitutionally invalid.

Ms Harriet S. Shapiro: That cert --

Justice Potter Stewart: But you do not --

Ms Harriet S. Shapiro: It would be an option.

I think that it would be very hard on the mother's who are now getting benefits --

Justice Potter Stewart: Of course, it would be.

But if this is unconstitutional --

Ms Harriet S. Shapiro: Yes.

Justice Potter Stewart: And this is not the end of the court's function eventually.

Ms Harriet S. Shapiro: It's -- it's not the way this Court has felt their function was -- that that was the end of their function in cases like Wiesenfeld or Goldfarb which -- in which they found that the statute was unconstitutional and expand at the benefits.

Justice Potter Stewart: Well in any event, you don't question the remedy in this case as I understood you --

Ms Harriet S. Shapiro: That's right, that's right.

Justice Potter Stewart: -- to my brother Stevens' question.

Ms Harriet S. Shapiro: Yes, that's right.

Justice Potter Stewart: And you don't get there if you're right on the merits.

Ms Harriet S. Shapiro: That's right.

If the Court has no further questions, I withdraw the rest of my time.

Argument of Herbert Semmel

Chief Justice Warren E. Burger: Very well.

Mr. Semmel.

Mr. Herbert Semmel: Mr. Chief Justice, may it please the Court.

I believe a simple example illustrates the discriminatory effect on illegitimate children of the marriage requirement for mother's benefits.

If we have a wage earner who lives with the woman, has a child with that woman, lives with and supports that child everyday of the child's life until the wage earner dies, but has never married the mother, that family unit is deprived of mother's benefits and the child is deprived of the opportunity for the care of the mother afforded by mother's benefits.

On the other hand, if we have a wage earner who marries a woman and while she's pregnant deserts her, never sees the child, never supports the child and dies, that family unit is entitled to mother's benefits and that child receives a benefit of a care of the mother which mother's benefits makes possible.

The distinction between the two groups is simply that in one case, the mother and the father married and that the other case, they have not married.

And that is precisely the kind of statute which visits the sins of the parents on the child by depriving the child of a benefit, a social welfare benefit, merely because of the lack of marriage of the parents.

And the bar here is absolutely.

This is not a case like Lucas where the illegitimate child can come in and prove dependency, or where the child and the mother could come in and prove that they had actually been supported by the father of the child at the time of his death.

Justice Byron R. White: But isn't the difference between the class is this depends on marriage, not only legitimacy?

Mr. Herbert Semmel: That is almost invariably the case in all --

Justice Byron R. White: Well, will you bring up some examples here.

Suppose -- suppose a man lives with a woman and has a child but they aren't married.

And for some reason, they have a divorce and agreed upon divorce.

At least, they seized living together.

And then he marries another woman and then he dies.

And the woman has been taking care of his illegitimate child before he died.

Now, I take it she's entitled to benefits and the child is too.

Mr. Herbert Semmel: Under those unusual circumstances --

Justice Byron R. White: Well, unusual -- you call them unusual, no more unusual than the one you dreamed of.

Mr. Herbert Semmel: Well, I'm not --

Justice Byron R. White: Well anyway, the answer is yes --

Mr. Herbert Semmel: The answer is yes that under those circumstances --

Justice Byron R. White: The mother gets --

Mr. Herbert Semmel: The wife who has a child of a -- her husband, but it's not around would receive benefits.

Justice Byron R. White: So, the line isn't drawn on illegitimacy?

Mr. Herbert Semmel: The line is drawn illegitimacy if we define the class Mr. Justice White which is the class is children living -- the general classification is children living with their mother which encompasses almost all children.

I believe only yesterday, Mr. Justice Stevens in his dissent in the Caban case noted that virtually all children live with their mothers.

The example what you pose is a kind of an exception to the normal living pattern.

And so, the general classification is children living with their mothers, and then all illegitimate children are barred from the benefit because their mothers haven't married the father.

All legitimate children living with their mothers receive the benefits --

Justice William H. Rehnquist: Then, you're using your definition of a class in effect to explain how the statute operates.

And actually, your definition of a class is narrower than the operation of the statute.

Mr. Herbert Semmel: The statute -- the definition of a class in some respect was narrower in every possible application of the statute.

But in every illegitimacy case that has been before this Court virtually in which the discrimination has been stricken.

There has been some group of illegitimate children who qualify and this Court has always looked at the class by comparing legitimate children and illegitimate children similarly situated.

Justice Byron R. White: I just gave you some illegitimate children who were not excluded from this benefit.

Mr. Herbert Semmel: That's correct.

Justice Byron R. White: And any man who's been living with a woman and they're not married and she dies and they have had children, it could very usually end up in the situation I just mentioned.

Mr. Herbert Semmel: That is correct.

But we have had other cases in this Court in which some illegitimate children were not excluded from benefits.

But the court nevertheless held that discrimination between legitimate children and illegitimate children similarly situated was unconstitutional.

In the Webber case for example, involving workers compensation benefits, legitimate children and acknowledge illegitimate children receive benefits.

Other illegitimate children did not, and the court held that discrimination was unconstitutional.

In the Jimenez case, we had legitimate children and some classes of illegitimate children receiving benefits.

Other illegitimate children did not.

And again, this Court held by looking at illegitimate children and legitimate children similarly situated that there was an unconstitutional discrimination.

In fact in every case involving the Social Security Act, there are always some illegitimate children who receive benefits because there's a provision in the Act that children who are illegitimate solely because of a defect in a bonafide marriage between their parents are considered legitimate.

So that we always have some illegitimate children receiving benefits, yet this Court in two different situations has stricken discrimination against illegitimate children in the Social Security Act.

And that's true in almost every other kind of case in which this Court is found discrimination against illegitimate children.

There had been some -- in some case, a number of maybe small, in others, the number maybe large, in which some illegitimate children have gotten the benefits.

And we would submit that here, the crucial distinction and -- which relates this entire argument of the Government on the likelihood of support.

If the court examines the Jimenez case on the hand and the Lucas case on the other hand, and similarly in the different context Trimble v. Gordon on one hand and Lalli v. Lalli on the hand.

The distinction is the absolute bar may base on the failure of the mother and father to marry.

And so, if this was the statute as we had in Lucas in which the family could come in and have an opportunity to demonstrate that in fact there was support for the family, that would be a different case and might be proper and constitutional under Lucas.

Because what Lucas and Jimenez illustrate is that the likelihood of support argument sustains differential treatment only in presuming that all legitimate children are supported, but requiring an additional showing by illegitimate children.

But that it does not sustain an absolute bar to illegitimate children and in a particular category, those living with their mothers.

Justice John Paul Stevens: I understand you correctly, you're saying that this statute what you consider a constitutional defect in the statute would be cured if the mother, the unmarried mother were given the opportunity to prove that at the time of the wage earners death, she was receiving the support of the wage earner.

Mr. Herbert Semmel: I believe that that is the holding of the Lucas case.

Justice John Paul Stevens: Now, if you concede that and if there were empirical evidence that Congress considered and I don't know whether there is or not that that's true and only 2% of the cases of unmarried mothers, most unmarried mothers who've not been living with the wage earner for a matter of years prior to his death are not then receiving a support, then I would think you have to admit that this classification was irrational classification.

Mr. Herbert Semmel: We would not concede that Your Honor, as long as the touchstone was illegitimacy.

That --

Justice John Paul Stevens: But the touchstone isn't -- the touchtone is marriage.

The outer limit of the class is was the person ever married to the wage earner.

And if you concede that that this would be saved by the -- by making special provision for those mothers of illegitimate children who could prove actual dependency, then it seems to me you're argument must really rely on an assumption that a very significant portion of the members of your class were in fact receiving support from the wage earner at the time of death.

And you didn't even allege that as to your client.

Mr. Herbert Semmel: Your Honor, --

Justice John Paul Stevens: As I remember the pleadings.

Mr. Herbert Semmel: The pleadings don't allege that because the case came up on a review of the determination of the Social Security Administration because of the marriage requirement, any question of support became irrelevant, and therefore no evidence was submitted in the administrative process.

And none would have been relevant had it been offered.

But we would submit that, not only isn't there any empirical evidence, but that the statutory history shows that Congress never had that in mind at all.

Justice William H. Rehnquist: But would have been relevant in the District Court, would it not?

You say this isn't just simply a denial of a benefit you're appealing from or you might well be precluded by one of the preclusion section.

If you're challenging the constitutionality of a provision, I would think that sort of evidence that you and Justice Stevens had your colloquy about would have been admissible.

Justice Byron R. White: At least, you would have to make some effort to show that Congress was quite irrational and then ever having thought what the Government suggests a thought about it.

Mr. Herbert Semmel: Well, I think there two answers to that.

One is that the statutory history shows that Congress was irrational in the sense that they were acting out of an intent to exclude illegitimate children as part of a general statutory purpose of discrimination against illegitimate children.

Justice Byron R. White: If you can suggest -- if you can -- if you're right on that, the Government concedes you win, I take it?

Mr. Herbert Semmel: I think that's correct.

Justice Byron R. White: If -- if you can spell out of legislative history, a purpose to discriminate against illegitimate children.

Mr. Herbert Semmel: Yes, I would like to do that Mr. --

Justice Byron R. White: Would you -- but I take your total argument.

If you can't spell that out, you say the effect, the impact on the illegitimate children is sufficient to invalidate the statute.

Mr. Herbert Semmel: Yes, but -- that is correct.

We would say either way, the statute should be invalidated.

But I would like to take perhaps the remaining moments before the break to touch on that question of the intent of Congress here.

If we go back to 1939 in the Congress first enacted survivors benefits, the original Social Security Act was simply for retirement, and that in 1939, survivor's benefits were first enacted.

At that time, illegitimate children were excluded, children's benefits that were provided or provided only for legitimate children.

The Social Security Advisory Board beginning in 1940 expressed itself on that question, pointed to the inequities and urged Congress to correct it.

It wasn't until 1965 that Congress first moved to make some change in the total exclusion of illegitimate children.

But even in 1965 when they did it, they surrounded the change with a number of discriminatory provisions.

One of them was a provision that if by adding illegitimate children's -- children's benefits to the total package on the wage earners account, the total benefits were exceed the maximum than illegitimate children lost all their benefits first, and rather than dividing it proportionally as in almost any other case.

And that was stricken by this Court in the summary affirmance of both in the Davis and Griffin cases.

The second kind of discrimination was before this Court in the Jimenez case where we were dealing with a very small class of children born after the disability of their father.

And under the statute, illegitimate children were not entitled to benefits and legitimate children were entitled to benefits and this Court found that that was unconstitutional.

And by Congress by leaving the mother's benefit provision with a marriage requirement, continue the discriminatory effect of that on illegitimate children.

That went back to 1939 when illegitimate children were totally excluded from the statute, and I made sense of course the Congress to say with use the term widow because it was only widows and legitimate children that were involved in the benefit package at all.

But that this former discrimination carries over along with these other requirements.

And again, the provision in the Act that says when legitimate children that -- excuse me, when illegitimate children are illegitimate only by reason of the invalid but good faith marriage of the parents, they are deemed legitimate.

And the mother is then deemed a wife under the same circumstances.

That again I think indicates that what we had was a general statutory scheme of hostility to children because of the failure of their parents to marry.

And that part of that has been removed by Congress, part of that has been removed by this Court.

And this mother's benefit is one of the last vestiges of that scheme.

Justice Potter Stewart: When was the divorced former wife and children put into the statute?

That was added?

Mr. Herbert Semmel: I believe that was during the -- I don't recall the date, Your Honor, I would --

Justice Potter Stewart: But was an addition wasn't it? (Voice Overlap)

Mr. Herbert Semmel: That was an addition to the --

Justice Potter Stewart: The later addition.

Mr. Herbert Semmel: -- the illegitimate children and so on.

It came long after the original mother's benefits.

Justice Potter Stewart: Yes.

The original widow.

Mr. Herbert Semmel: The original widow.

Originally, it was solely the widow, that is the woman who is married to the wage earner at his death.

Justice Potter Stewart: Right.

Mr. Herbert Semmel: Chief Justice, I was advised by the clerk that you would take a recess at this time.

Would you prefer me to stop now?

Chief Justice Warren E. Burger: At 12 o'clock, you --

Mr. Herbert Semmel: Oh, I'm sorry, Your Honor.

Chief Justice Warren E. Burger: 12 o'clock.

Justice Byron R. White: Your light will go on, don't worry.

Mr. Herbert Semmel: I see.

Justice Byron R. White: And we will run.

Mr. Herbert Semmel: The -- I just like briefly to comment on the Wiesenfeld case.

I -- I think it is not accurate to state that that case focused on the husband.

Chief Justice Warren E. Burger: We'll resume at that point at 1 o'clock.

Mr. Semmel, you may resume.

Mr. Herbert Semmel: Thank you, Mr. Chief Justice.

The -- the holding of this Court I submit was very clear in the Wiesenfeld case that the mother's benefit was intended to benefit the child.

And in fact, the Government in that case made the same argument that they asserted here that this was essentially spousal support and it was proper for Congress to distinguish between support for wives were normally supported by their husbands as contrasted to support for husbands who are often or perhaps more often than not supported by their wives.

And that was been asserted by the Government as the justification for the classification there.

And the court's decision finds that the benefit was for the child that therefore we have the discrimination based on sex because woman workers do not get the same benefits for their children as male workers would.

And therefore, there was implicit rejection of the notion that the intent of the statute was for spousal support.

Now, the fact that a marriage requirement is used in statute does not mean that there is no either intended or effect discrimination against illegitimate children.

The very definition of an illegitimate child is a child whose mother and father have not been married.

And this Court has stricken down in several occasions the statutory provisions which discriminate against illegitimate children eventhough --

Justice John Paul Stevens: May I go back again the discrimination there was concededly against husbands as opposed to wives.

It wasn't any claim of discrimination against any set of children, was it?

Mr. Herbert Semmel: The discrimination was against woman workers because on their depth, their children loss the opportunity for the care of parent.

Justice John Paul Stevens: But the victim of the discrimination was the parent.

Mr. Herbert Semmel: I believe that the holding of the court is that the victim under discrimination was a child because the child lost the opportunity for the care of the parent.

Justice John Paul Stevens: You don't think it was the sex discrimination case at all?

Mr. Herbert Semmel: Yes, it was Your Honor.

But the discrimination --

Justice John Paul Stevens: But the only sex -- the difference in sex was at the parent level.

It didn't matter whether the children were male or female.

Mr. Herbert Semmel: That -- that is correct, but the sex discrimination was against the woman worker, not against the --

Justice John Paul Stevens: But there was an irrational sex discrimination because they purported to justify it on the basis and the different status or the different children.

But still, the person being discriminated against was one parent or the other one.

Mr. Herbert Semmel: That's correct, but was the working -- I mean it's the working parent that was being discriminated against --

Justice John Paul Stevens: Alright.

In here, it's the mother.

Isn't it correct to say here the person is being discriminated against is the mother of the illegitimate child?

Mr. Herbert Semmel: No --

Justice John Paul Stevens: -- who is not --

Mr. Herbert Semmel: That would be the case if you accepted the Government's notion of what the statute is all about, the mother's benefits.

Here, the -- if you look at the structure of the statute, we submit that it's clear, and that's what Wiesenfeld said that we have a discrimination against children because the mother's benefits were intended to provide the child with the opportunity for the care of the mother in the home, and that the child is beneficiary, just as the child was a beneficiary --

Justice John Paul Stevens: Well, what happen the --

Justice Byron R. White: Excuse me.

Justice John Paul Stevens: Yes, go ahead, Mr. Justice.

I'm just going to say, the child is the beneficiary indirectly, but not in the statutory sense.

Mr. Herbert Semmel: Even in statutory sense because in order for this benefit to be payable, the mother must have the child in her care.

The child must be receiving children's benefits.

It's only when care of child is involved that mother's benefits are payable.

The -- as this Court noted in Wiesenfeld and as the statute makes clear, Congress did not intend to provide benefits for widows under age 60.

They were expected to go out into the labor market during their normal working life and earn their living.

It's only when the widow has a child in her care that the funds are made available.

Justice John Paul Stevens: Can it be if the mother took the money and spend it on clothes or alcohol or something like that?

Mr. Herbert Semmel: There is no -- certainly no remedy under federal law in that case that might be problems with the state law.

But that is also true Mr. Justice Stevens with children's benefits.

That is children's benefits are also paid in most cases to the mother.

She could spend that money however she pleases.

But it's clear --

Justice John Paul Stevens: But she's a trustee for the child of those benefits.

She must use the money for the benefit of the child, doesn't she?

I maybe not.

Mr. Herbert Semmel: I -- I don't believe there's any specific legal requirement that she do that.

It -- it is conceivable that again under state law --

Justice John Paul Stevens: The child would have no claim if she took all that money and spend it on clothes for herself.

Mr. Herbert Semmel: Well Your Honor, I think --

Justice John Paul Stevens: I don't think there's a legal difference between the two.

Mr. Herbert Semmel: I can't say that the child would have no claim.

I think in fact, the child might have the same claim.

For example against the mother, if she took mother's benefits and then didn't stay home and take care of the child.

Justice John Paul Stevens: Supposing the child is independently wealthy, maybe inherited a lot of money from somebody.

Mr. Herbert Semmel: The child --

Justice John Paul Stevens: Still that you know, that the financial, the poverty isn't the test of whether they get benefits if I remember it correctly, isn't it?

Mr. Herbert Semmel: Poverty is not a (Voice Overlap) --

Justice John Paul Stevens: You could have and independently wealthy child, it might be 15 years old, maybe a very successful newspaper author or something, and he doesn't need the money.

But in the child's benefit, he's entitled to it but he's not entitled to mother's benefit.

Isn't that the difference?

Mr. Herbert Semmel: Well, if the child actually has income from earnings which exceed the earnings maximum, the benefits for the child would be reduced to.

Similarly, if the mother goes out and works, eventhough she's eligible for mother's benefits, she might not be paid any because of the earnings test and the Social Security Act might reduce all of her benefits to zero.

Justice Byron R. White: Your case wouldn't be really -- wouldn't be any different would it if you just said this was intended to benefit both the mother and the child?

Wouldn't your case be the same?

The Government's might not, but wouldn't yours be the same?

Mr. Herbert Semmel: It were -- I would think that that it would be the same because --

Justice Byron R. White: Just to why get into big argument about whether it was intended to benefit the mother at all.

It seems a matter of common sense that it did benefit the mother quite a bit.

But it also seems unlike a matter of common sense that it benefitted -- aim to benefit -- that it did benefit, that they do benefit and was aimed to benefit the child --

Mr. Herbert Semmel: I think that's correct, Mr. Justice White, I agree with that.

So long as the one of the major purposes is benefit for the child if it's deprived of illegitimate children, then deprived of that benefit, then I think I believe are constitutional claim is sustained.

The -- once we have a classification -- I mean, I just to go back one moment and just comment again on the marriage requirement as the classification of illegitimacy.

The Social Security Act for example never speaks directly in terms of illegitimacy versus the legitimacy, but this Court has stricken provisions of the statute on that ground.

The Social Security Act always talks in what we might call a neutral term which is children who inherit an intestacy under state law, and that effectively at least until the Trimble decision barred illegitimate children.

Similarly in the New Jersey Welfare Rights Organization case, we have a statute which provided welfare benefits to families consisting of husband, wife and children.

And this Court struck that as the discrimination against illegitimate children's well, so that there's no magic in the term illegitimacy being written into the statute.

This Court has always taken a look at the -- how the statute operated in practice.

The classification of illegitimacy then requires in the constitutional test a little closer look, a little closer scrutiny then it sometimes given to other social welfare benefit cases.

I think the court -- this Court has made it clear in everyone of its decisions in point.

And the point that Mr. Justice Stevens raised earlier concerning a situation in which Congress may find that only 2% of all mothers of illegitimate children were supported by the father.

Of course, Congress has not made that finding.

There is no nothing in the record, nothing in the legislative history indicates Congress ever considered that, nor could it have considered that because when mother's benefits were adopted, illegitimate children were ineligible for children's benefits, and therefore ipso facto that they were also not receiving mother's benefits.

And therefore, Congress could not have ever taken up this question at any point in enacting mother's benefits.

But we would submit that even if Congress had taken that kind of consideration, that a total exclusion of all illegitimate children is not justified by the administrative convenience, that is -- and that was essential the holding of this Court in the Jimenez case where it was argued that after born illegitimate children could be excluded by because relatively few children were involved and that there was an element of administrative convenience in proof of paternity or support.

And I believe what the cases require is a closer look at how the purpose can be achieved.

If the purpose is to exclude families where the father was not supporting the families and that can be achieved by giving the family the opportunity to prove that they were receiving the support.

If only 2% of the families provide that proof, then only 2% of the families will get the benefit.

But --

Justice John Paul Stevens: I understand the Government to be arguing that it doesn't matter if administrative convenience but rather that this is a large class of persons.

Most of them probably were not receiving support from the wage earner at the time of the wage earners death, and therefore they don't come within the notion of substituting benefits for prior support.

Mr. Herbert Semmel: Well --

Justice John Paul Stevens: Isn't -- I don' think it's a matter of administrative convenience because there are a lot of people who might be able to prove they were getting support, a grandmother or a third cousin or a good friend or something, but wouldn't be eligible for Social Security simply for that reason because the Social Security System operates on a bunch of rules that large classes are defined in terms of probabilities.

Mr. Herbert Semmel: That's correct, but the difference between third cousins and grandmothers and so on and illegitimate children is of constitutional significance.

And this Court has had temptations in which it has held various forms of discrimination against illegitimate children to be unconstitutional.

That's just not the case with third cousins or grandmothers.

And when you get to that classification, then the appropriate test is to look carefully at the purpose to be achieved.

And to meet that test without a total bar of benefits for the class of illegitimate children, and that is the failure of this statute because it bars all benefits to illegitimate children, it bars those benefits whether or not the father had ever supported the children, whether the father had ever supported the mother.

And because of that reason alone, the statute falls as unconstitutional.

The -- in the remaining moments, I would like to comment just for a moment on the class action aspect of the case.

I did not intend to argue on the retroactivity which I believe is well covered in the briefs.

With respect to the class action, I merely want to emphasize the limited nature of the class relief and the importance of the class relief.

Essentially, the class relief here merely requires the Social Security Administration to notify all families in which illegitimate children are receiving children's benefits of the decision of the court, and so that they will know that now they may come in and apply.

They will still have to meet all the other statutory requirements for mother's benefits.

They will still have to --

Justice William H. Rehnquist: That's based on 1331 isn't it?

That's the only were you can get that kind of relief?

Mr. Herbert Semmel: We would submit that we can obtain it either on 1331 if the 205 (h) is not a bar to that.

Justice William H. Rehnquist: I think, didn't we hold in Salfi that it was a bar?

Mr. Herbert Semmel: In Salfi, the court -- it's not involved a decision which ordered the payment of benefits to all members of the class.

Justice William H. Rehnquist: And then we said you couldn't bring that under 1331 by reason the preclusionary provisions?

Mr. Herbert Semmel: That's correct.

But I submit that the difference is that 205 (h) is the counterpart to 205 (g) which provides for judicial review of claims for benefits.

And what 205 precludes is a claim that is reviewable under 205 (g).

There is no way that a -- either the appellees here or any other potential recipient could file a quote “claim” with the Social Security Administration asking the administration to notify all the class members.

And that's why we need the jurisdiction of federal courts under 1331.

Justice William H. Rehnquist: Well, lots of people need the jurisdiction of federal courts, but they don't get it because Congress hasn't given it too.

Mr. Herbert Semmel: That's correct, but here, Congress has provided in 1331 for federal court jurisdiction in constitutional claims.

That is only reduced by Section 205 (h) to the extent that something is acclaimed under 205 (g).

We would submit that this notice of requirement is not a claim for benefits under 205 (g), and therefore not precluded by 205 (h).

The other side of that would be that if it is a claim under 205 (g), then the District Court had jurisdiction under 205 (g), and that a class relief is permissible under 205 (g).

I know that has been submitted and argued in the Elliott case which is, is a weighing decision.

Justice William H. Rehnquist: Those two arguments are mutually inconsistent to that.

You can go either one or the other, but not both.

Mr. Herbert Semmel: That -- that is correct.

Thank you.

Rebuttal of Harriet S. Shapiro

Chief Justice Warren E. Burger: Do you have anything further, Mrs. Shapiro?

Ms Harriet S. Shapiro: First, just as a matter of clarification of the child's benefit must be used for the child.

There representative pay -- received the payment on behalf of the child and suppose to use it for the child.

The main point I want to make is that --

Justice John Paul Stevens: Before you leave that, what about the mother's benefit?

Ms Harriet S. Shapiro: Well, the mother's benefit is for her own use, and she can use it as she wishes.

Justice John Paul Stevens: I see.

Ms Harriet S. Shapiro: I may have misunderstood Mr. Justice White's question to me earlier.

I gather that what you were asking was that if the court should disagree with our position and consider the benefit to be a child's benefit, what then?

And the answer would be that there's really in that case to, it's not a discrimination against illegitimates.

If you look at from the point of view of the child, what the statute is doing is saying that in the situation where the mother was not married to the wage earner.

Justice Byron R. White: Mrs. Shapiro, suppose the statute said that mothers of illegitimate children do not get these benefits but mothers of legitimate children do.

Ms Harriet S. Shapiro: Well, then --

Justice Byron R. White: Would your position be the same?

It didn't sound to me like it would.

Ms Harriet S. Shapiro: Then, if then -- then you're saying it would be intentional discrimination --

Justice Byron R. White: Yes, exactly.

And I thought that's all you answered (Voice Overlap)--

Ms Harriet S. Shapiro: Yes, that's what I --

Justice Byron R. White: -- with that kind of thing, you wouldn't agree it was illegal (Voice Overlap).

Ms Harriet S. Shapiro: If it's an intentional discrimination against illegitimate children.

Justice Byron R. White: And I take it as part of your -- part of the submission of your colleague on the other side is that that's what the exactly what the statute is.

Ms Harriet S. Shapiro: Yes.

Well, -- but the problem --

Justice Byron R. White: I know you disagree with that.

Ms Harriet S. Shapiro: Yes.

The -- the question there I guess would be that if you take that position, then, is illegitimacy a sufficient act -- sufficiently accurate indicator of the likelihood of lost support, so that you can ignore the possibility that there might have been situations in which the child's mother, the wage earner was supporting the unmarried mother of his children.

Justice Byron R. White: Well, it might be almost as good as married if you're non-married, wouldn't it?

Ms Harriet S. Shapiro: Well, no.

The --

Justice Byron R. White: I mean, certainly you know that -- there's no -- not a very perfect fit in any of these classification?

Ms Harriet S. Shapiro: That's true.

But I guess the point is that if -- comparing this case with Lucas, in Lucas, it was very -- it was significant that there was an opportunity to prove actual dependency.

But that may well be because the chances of a wage earner supporting his illegitimate children is greater than the chance that he was supporting his -- the mother of his illegitimate children, so that you have a different kind of a relationship between the policy and the statute here than you would there.

Justice John Paul Stevens: Mrs. Shapiro, I am somewhat puzzled by your concession that intent makes any difference.

It seems to me, Congress knew what it was doing in all these cases.

And if the test were phrased in terms of mothers of illegitimate children, the mother no longer living with the wage earner, but not having lived with the wage earner at the time of his death.

It seemed to me there would be the same probability and it just may be what Mr. Justice White was implying, the same probability that the wage earner was not supporting that particular mother because you really have the same set up whether you describe her as a mother of an illegitimate child or as a person who's not a wife.

Ms Harriet S. Shapiro: Well, the problem is if it's the intent to discriminate or whether it simply a disparate effect of the use of a perfectly proper method of distinguishing between people who are likely to have been supported and people who weren't.

Justice John Paul Stevens: Well, it's always an intent to discriminate if you say that class A gets benefits and class B doesn't get benefits.

You're always discriminating intentionally against class B.

The people in class B, no matter how you phrase the statute are still a large group of mothers who are not living with the wage earner who happened to have children by him at some earlier point in time.

And the constitutionality depends on how they phrase the statute?

Ms Harriet S. Shapiro: No.

The constitutionality depends on what whether -- what Congress is doing is trying to distinguish between people who were likely to get support and were not.

Justice John Paul Stevens: In both cases, I assume they were.

Ms Harriet S. Shapiro: Okay.

If that's what they were doing, then the fact that this perfectly proper, reasonable statutory distinction has a disparate effect on illegitimate children is not enough to constitute a denial of equal protection.

That is the way we read Washington v. Davis.

Thank you.

Chief Justice Warren E. Burger: Very well.

Thank you counsel.

The case is submitted.

Featured:

Lalli v. Lalli - Oral Argument

Sun, 20 Jun 2010 20:43:12 +0000

Case:

Lalli v. Lalli

Media File:

77-1115_19781004-argument.mp3

Related Transcript:

77-1115_19781004-argument.xml

Transcript:

Argument of Leonard M. Henkin

Chief Justice Warren E. Burger: We'll hear arguments next in Lalli against Lalli.

I think you may proceed now, Mr. Henkin.

Mr. Leonard M. Henkin: Mr. Chief Justice and may it please the Court.

This is a second appeal from the Court of Appeals of the State of New York.

On the first appeal, this Court vacated the judgment as sent the case back for reconsideration in the light of your decision in Trimble versus Gordon.

On -- thereafter, the Court of Appeals by a vote of five to two disregarded the directive of this Court and attempted to distinguish the New York statute involved, which brought us back to you.

This statute which is the state's powers and trust law Section 4-1.2 requires an order affiliation to be obtained within two years after the birth of an illegitimate child during the lifetime of the father before the child can participate in distribution of the estate of his natural father.

The Attorney General indicates that he does not concede the facts.

However, the Court of Appeals in its first opinion clearly states that the facts in this case are uncontested.

The decedent was killed in 1974.

The respondent is widow is not here on this appeal.

The only one who is in opposition is here is the Attorney General of the State of New York.

Even though, she has a bond in the sum of $100,000.00 which was required to be put at the time that she obtained the letters of the administration.

The appellant was born out of wedlock.

It is conceded that no other affiliation was obtained.

Also --

Justice Potter Stewart: How old was the --

Mr. Leonard M. Henkin: I beg your pardon?

Justice Potter Stewart: How old was at the time of his father's death?

Mr. Leonard M. Henkin: I think he was about 26 or 28.

Justice Potter Stewart: Much older than two years old.

Mr. Leonard M. Henkin: Much order than two years old, Your Honor.

I may say that at that time, there was procedure in New York at the time the father died where by the father would bring a proceeding in order to have the child declared legitimate.

That statute was enacted thereafter after the father died.

There is no marriage claimed to have taken place between his natural parents.

The appellant was acknowledge by the decedent as his son, in writing, duly acknowledged before a notary public and during the lifetime of the decedent, they were living together prior to the time that the natural mother of the infant died and the father was natural father was supporting the mother and the infant and his sister.

Justice Harry A. Blackmun: In full?

Mr. Leonard M. Henkin: Originally in full but shortly before he died, the son having reached the age of majority was working for the father in his business, so the father supported him in part.

Justice Harry A. Blackmun: So, it's you position that he supported him entirely as long as he was a minor?

Mr. Leonard M. Henkin: That's correct.

Justice Harry A. Blackmun: Under New York Law could the decedent have taken care of this child by will?

Mr. Leonard M. Henkin: Yes, Your Honor.

Justice Harry A. Blackmun: He did not do so?

Mr. Leonard M. Henkin: He did not do so because he was killed.

We also do not know whether that --

Justice Harry A. Blackmun: No, almost die --

Mr. Leonard M. Henkin: He was killed.

Justice Harry A. Blackmun: I say all of us die.

Mr. Leonard M. Henkin: Yes, Your Honor.

Justice Harry A. Blackmun: Did he have will?

Mr. Leonard M. Henkin: We don't know.

There was no will found after he died.

We don't know.

He may have had the will but --

Justice Potter Stewart: How was he killed?

Was he killed in accident?

Mr. Leonard M. Henkin: He was -- no.

He was killed by a stepson.

Justice Potter Stewart: Also name Lalli?

Mr. Leonard M. Henkin: Also named Lalli.

Justice Potter Stewart: Everybody in this case is named Lalli.

Mr. Leonard M. Henkin: That is correct, Your Honor.

Justice Harry A. Blackmun: And was that Aileen's son by another man?

Mr. Leonard M. Henkin: That was Aileen's son by another man.

Justice Harry A. Blackmun: Is Robert's formal birth certificate in the record?

Mr. Leonard M. Henkin: No, Your Honor.

Justice Harry A. Blackmun: Is there a reason why it wasn't?

Mr. Leonard M. Henkin: There is no -- apparently there is no birth certificate that we know of about Robert.

We do know that there is an acknowledgment which is in the record wherein the father says although he could have said my word, he says, “My son in giving consent to our marriage of Robert.”

Justice Thurgood Marshall: Getting back a minute to -- was it born in New York?

Mr. Leonard M. Henkin: He was born in New York.

Yes, Your Honor.

Justice Thurgood Marshall: And you can't find a birth certificate in New York?

Mr. Leonard M. Henkin: We don't know of any birth certificate for Robert Lalli.

Justice Thurgood Marshall: Well, obviously he had a birth certificate, if he was born in New York.

Mr. Leonard M. Henkin: He may have a birth certificate.

We don't know of any.

There is none in the record.

Justice Thurgood Marshall: Did anybody look for one?

Mr. Leonard M. Henkin: We have not looked for one, Your Honor.

Justice Thurgood Marshall: He was born?

Mr. Leonard M. Henkin: I beg your pardon?

Justice Thurgood Marshall: He was born?

Mr. Leonard M. Henkin: He was born.

There was no question about it he couldn't be the appellant in this case and I could not represent him if he was not born, Your Honor.

Justice Harry A. Blackmun: Mr. Henkin, I think in your brief, you don't site Labine against Vincent?

Mr. Leonard M. Henkin: No, we do not.

Justice Harry A. Blackmun: On the ground what, that its --

Mr. Leonard M. Henkin: We feel that that case is not applicable to this situation in view of Gordon versus Trimble.

We feel that the gist of the decision in Gordon versus Trimble is that where the proof of paternity is clear, as in instances given by the Court in Gordon versus Trimble, no requirement should be interposed by statute on the right of illegitimate child to participate in the estate.

Justice Harry A. Blackmun: Then you think that the Trimble against Gordon really overruled Vincent against Labine?

Mr. Leonard M. Henkin: To that extent, yes.

Justice Harry A. Blackmun: Although, it didn't say so on so many words.

Mr. Leonard M. Henkin: That is correct, Your Honor.

We also feel that --

Justice Harry A. Blackmun: Can I ask you one more question and I'll stop.

What are we talking about here is totally irrelevant but were talking much money or about very little as was the case in the Trimble case?

Mr. Leonard M. Henkin: No.

In this case, we have a bond of over $100,000.00 and despite that there as I reiterate -- we also have a claim in the death action against the man who killed the decedent to this case.

Justice Potter Stewart: Is that the main asset of the estate?

Mr. Leonard M. Henkin: Yes, it is the stepson, Your Honor.

Justice Potter Stewart: Yes, I understand.

But what are the assets of the estate, what's --

Mr. Leonard M. Henkin: What the assets of the --

Justice Potter Stewart: Yes.

Is this tort claim the principal asset --

Mr. Leonard M. Henkin: $100,000.00

Chief Justice Warren E. Burger: $100,000.00 property.

Justice Potter Stewart: Of tangible assets plus this tort claim?

Mr. Leonard M. Henkin: This --

Justice Potter Stewart: Plus this tort claim?

Mr. Leonard M. Henkin: That is correct.

Justice Potter Stewart: Thanks.

Mr. Leonard M. Henkin: Now, against this claim there was an acknowledgment in any ground which --

Therefore on this one (Inaudible)

Chief Justice Warren E. Burger: Is the microphone functioning?

No?

Will you check on it please?

We will give you a time out Mr. Henkin without charging you for the time.

You maybe seated if you like Mr. Henkin now.

You maybe seated until they get to the correction here.

Mr. Wong, I think what we'll do is take a brief recess until you can find the mechanical problem here.

[Recess]

Now, you may proceed Mr. Henkin, I think we're functioning again.

Mr. Leonard M. Henkin: Thank you, Your Honor.

Justice John Paul Stevens: Mr. Henkin, before you start.

Would you clear up something I had missed in the briefs?

You keep -- you mentioned two or three times that Mrs. Lalli, the original respondent is no longer party to the case in effect.

Is the case moot?

Mr. Leonard M. Henkin: She did not appeal in this Court.

She filed no brief and she's not represented by her attorneys on this -- at this time.

The only one who's appearing in opposition to us is the Attorney General of the State of New York.

Justice John Paul Stevens: The case had been settled or anything like that, has it?

Mr. Leonard M. Henkin: No.

It has not been settled, Your Honor.

She just did not appeal.

She did not file any brief and she did not appear although, after we filed a notice of appealed for the second time.

Justice John Paul Stevens: Would you tell me one other thing.

I'm not sure I understood you answer to Mr. Justice Blackmun.

He asked you if there -- whether there's a lot of money involved or small amount.

You answered by saying there's a $100,000.00 bond posted I don't really know how that answers the question.

Does that mean there's a lot of money or not much money?

Mr. Leonard M. Henkin: Ah, there is -- we claim that there is over a $100,000.00 involved in this estate.

Justice John Paul Stevens: I see.

Mr. Leonard M. Henkin: We also claim that there is death cause of action which he did not follow up and as to which we say we are entitled to an accounting.

Justice John Paul Stevens: I see.

So, you do there is a substantial amount of money?

Mr. Leonard M. Henkin: Yes, there is a substantial amount of money involve in this case.

And what the actual amount is involved will find upon the accounting if one is ordered by this Court and this is what we are seeking and that's where we were stopped by the court below, Circuit's court dismissing our application for an accounting.

Justice Potter Stewart: Mr. Henkin, if your client had been illegitimate son, let's say, a father and mother married had one child, under the laws of the intent of succession in New York upon the father's death, does what the mother gets two-thirds and the child one-third?

Mr. Leonard M. Henkin: No, if he was the only child --

Justice Potter Stewart: Yes.

Mr. Leonard M. Henkin: He would get one-third, I mean, one-half.

Justice Potter Stewart: One-half.

Mr. Leonard M. Henkin: But if there were more than one child --

Justice Potter Stewart: All of them together will get money?

Mr. Leonard M. Henkin: If there were two children then they will get two-thirds and the mother gets one-third but the mother was -- the mother of this child was dead.

The respondent is not the mother of the appellant.

She is the window --

Justice Potter Stewart: No, widow of the deceased.

Mr. Leonard M. Henkin: Of the decedent.

Justice Potter Stewart: And under --

Mr. Leonard M. Henkin: She was appointed administrator as his window.

Justice Potter Stewart: I see and in that situation, if this had been a legitimate child under the laws of New York, how would the --

Mr. Leonard M. Henkin: He was --

Justice Potter Stewart: -- decedent's estates had been shared?

Mr. Leonard M. Henkin: One-third to her and two-thirds to the two children.

Justice Potter Stewart: There is another child?

Mr. Leonard M. Henkin: There is another child.

Justice Potter Stewart: A legitimate child?

Mr. Leonard M. Henkin: No, illegitimate child also.

Justice Potter Stewart: I see.

Mr. Leonard M. Henkin: But the one that I represent and the one who made an application and who is the appellant is one of the two children.

Justice Potter Stewart: I see, one of the two illegitimate children?

Mr. Leonard M. Henkin: Right.

In addition to our argument that, this case is control by the decision in Trimble versus Gordon by the fact that this, an acknowledgment in writing, acknowledged before a notary which is one of the grounds specified in note 14 to the gist of the decision considering the language immediately preceding that note in the text.

We say, that under the New York law, Section 24 of the Domestic Relations Law, creates two classes of illegitimates.

Those whose natural parents went to a marriage ceremony before or after their birth, no matter how invalid is that marriage because that Section specifically says, “That if the natural parents of an infant marry, regardless of how invalid that marriage is, that child is a legitimate child of both its parent who went through that marriage ceremony.”

We say to you that consequently, although, the Court of Appeals completely ignored our argument to that respect, that Section, when contrasted to Section 4-1.2 of the decedent's estate law creates entirely a different class of illegitimates.

As to those to as to whom there was a marriage ceremony, even though invalid, they are entitled to inherit, but because our client's parents complied with the New York statute and did not marry, our child -- our appellant is denied the right to participate in his father's estate because as to him, the bar of Section 4-1.2 is interposed and he is held to be illegitimate.

And I say to Your Honors, that this particular distinction into those two classes by virtue of those two sections has absolute no logic, no reason, and absolutely is discriminatory, and denies my client equal protection of the laws.

Chief Justice Warren E. Burger: Your client could have been -- had all the protection you now seek without his parents being married.

If he -- if the father, the natural father had complied with the statutory requirements, is that not so?

Mr. Leonard M. Henkin: He could not do it, if Your Honor pleases.

He could not comply with the statutory requirements because this particular Section which is cited in the opinion, in the dissenting opinion in the Court of Appeals on the second appeal pursuant to your referral was not in effect until long after the father died.

At the time the father was living, there was no such Section and if there was any attempt made by the father to bring the proceeding to get and order of affiliation such an application would have been denied as it was denied in matter of Ricky M. versus Sharon R., 49 Appellate Division 2nd 1035, and it couldn't be done at that particular time.

Justice William H. Rehnquist: Mr. Henkin you said a moment ago that your -- the father and mother here complied with the New York law and did not marry.

Would you explain what you meant by that?

Mr. Leonard M. Henkin: Yes, because the father had a wife living at the time, who was the widow, the respondent in this case who does not appear on this appeal.

Justice William H. Rehnquist: So, he would have been guilty of bigamy had a married --

Mr. Leonard M. Henkin: That is correct, but the statute Section 24 of the Domestic Relation's Law specifically says, “That regardless of the validity of the marriage, even if the marriage is not valid, even the marriage is absolutely no good, from its inception, any child born before or after is a legitimate child of those people who went through a marriage ceremony if they are the parents of that child, without any proof or whatsoever being required of compliance with an order of affiliation or any other requirements.

The fact of marriage as to those children were there is, even the bigamous marriage is sufficient to make them legitimate.”

Whereas to all other children, where there was no marriage bigamous or otherwise, there is under the New York statute an absolute requirement that at the two years of age, a child should go or his parents should go and make thing application for an other affiliation because if that order of affiliation is not a applied within two years after the child is born, regardless, even though there was such a situation as we have in the Trimble versus Gordon case, that particular child, no application having been made within two years, would not be given a right to participate in the estate because that is the provision of the statute.

Justice Harry A. Blackmun: But if he still draw will?

Mr. Leonard M. Henkin: Yes, Your Honor, but in Gordon versus Trimble, this Court said that they will does not have to be drawn and that that fact that no will has been drawn has no constitutional significance as to the right of the child.

Justice William H. Rehnquist: Your client also challenged the two-year provision of the New York affiliation law, did it not in the separate attack?

Mr. Leonard M. Henkin: We raised that question in both of our appeals.

The Court of Appeals said that because there is no question that no other affiliation was so ever entered we now don't claim at such an order was entered we should not attack two-years provision.

But we say to Your Honors, even if at the age of 15, he got an order affiliation, assuming he did he had such an order, it wouldn't have helped him because he couldn't have participated in the extent --

Justice William H. Rehnquist: Except you could have challenged the statute on that ground that you did challenge then but wasn't passed on?

Mr. Leonard M. Henkin: But we are challenging the statute on the ground of Gordon versus Trimble and also because Section 24 of the decedent estate law created two classes of illegitimates without any distinction between them, except the fact of marriage.

I will say to you that just because the marriage did not take place, the New York Statute requires together an order affiliation and which is discriminatory.

Justice Byron R. White: Well in Trimble wasn't there or hadn't there been a judicial determination --

Mr. Leonard M. Henkin: In Trimble --

Justice Byron R. White: -- prior to the death of the father?

Mr. Leonard M. Henkin: There was a judicial determination.

Justice Byron R. White: Not here?

Mr. Leonard M. Henkin: In this case, there wasn't.

But under note 17, this Court said, “that it is not necessary to have judicial determination and acknowledgment is sufficient under the note 17 to have the same effect as a judicial determination.”

Justice Byron R. White: But the fact is if there was a judicial determination in Trimble?

Mr. Leonard M. Henkin: Yes, that is correct.

There was none in this particular case.

I would say that where the proof is such that it's clear that there is no issue of paternity such as here, where there is an acknowledgment and support that there is no requirement to have a judicial determination because this is going from the middle ground that the Court spoke up in Gordon versus Trimble to be extreme of requiring judicial determination within two years after the birth of the child and no child could have been that smart to get that determination at that age or to have the parents of a child who are living in peace together to go and apply all of a sudden where the man is supporting the woman and the children for her to going apply for an order affiliation.

Accordingly, as Mr. Justice Cook and Mr. Justice Fagg would said, “This will be serving only to break up the family for a mere formality where there is no reason why the child is -- should have such order applied for because where the father is voluntarily supporting his children, then there is no reason to make a court application.”

Accordingly, the children of the involuntary parents or involuntary father will be benefited, but the children of the voluntary father, who is supporting them, would be denied the right to support and the right to distribution as to their estates.

Justice Harry A. Blackmun: What's mother's -- what's the widow's position in all this --

Mr. Leonard M. Henkin: They were originally she opposed the application.

Justice Harry A. Blackmun: She's taken the position that this is not his child, is that not correct?

Mr. Leonard M. Henkin: I beg your pardon?

Justice Harry A. Blackmun: I say, has not the widow taken the position that your client is not a son of the decedent?

Mr. Leonard M. Henkin: That was her original position but she admitted on the first appeal to the Court of Appeals that the issue involved was as to whether or not a child could participate by raising, that was the point that they making their first appeal, when we first won before this Court.

Justice Potter Stewart: Mr. Henkin, I want to be sure I didn't misunderstand you.

Do I correctly understand that it's -- you tell us that the decedent could not in fact or in law, have secured a certificate of affiliation during his life time?

Mr. Leonard M. Henkin: That is correct, Your Honor, because Section 522 --

Justice Potter Stewart: Yes.

Mr. Leonard M. Henkin: -- of the Family Court Act was amended to permit such an application to be made by laws of 1976, Chapter 665, taking effect as of January 1, 1977.

Justice Potter Stewart: So that during his lifetime he could not have --

Mr. Leonard M. Henkin: Make such an application.

Justice Potter Stewart: -- have a secured an order affiliation?

Mr. Leonard M. Henkin: And if he made such an application during his lifetime under the matter of Ricky M. versus Sharon R, 49 Appellant Division, 2nd 1035 such application would have been denied.

Justice Potter Stewart: And is that in your -- is that case in your brief?

Mr. Leonard M. Henkin: No, it is not, if Your Honor please.

Justice Potter Stewart: Could you give me that citation again.

Mr. Leonard M. Henkin: Matter of Ricky M. versus Sharon R., 49 Appellant Division --

Justice Potter Stewart: 49?

Mr. Leonard M. Henkin: 49 Appellant Division 2nd --

Justice Potter Stewart: Right.

Mr. Leonard M. Henkin: 1035, 1975 Case.

Justice Thurgood Marshall: And why was he denied?

Justice William H. Rehnquist: Mr. Henkin, you --

Mr. Leonard M. Henkin: I beg your pardon?

Justice Thurgood Marshall: Why was he denied?

Mr. Leonard M. Henkin: Because there was not provision in the statute at that time for the father to make such application.

The statute was amended only in 1976.

Justice Thurgood Marshall: You mean, up until 1976 in New York, it must have been the last thing?

Mr. Leonard M. Henkin: In this man, he was killed in 1974, if Your Honor pleases.

Justice Thurgood Marshall: What I mean in, if New York didn't get around to letting children inherent from their father when 1976, wouldn't that make on to the last date to do it?

Mr. Leonard M. Henkin: They -- you're talking with reference to the children born before that time?

Justice Thurgood Marshall: Yes.

Mr. Leonard M. Henkin: That's why were here, claiming that the statute is unconstitutional.

Justice William H. Rehnquist: But the child or mother can apply, can't they?

Mr. Leonard M. Henkin: Yes, the mother could apply --

Justice William H. Rehnquist: So --

Mr. Leonard M. Henkin: But the mother wouldn't -- didn't apply because they were living together as one family.

Justice William H. Rehnquist: Well, so --

Mr. Leonard M. Henkin: That's the reason for it.

Justice William H. Rehnquist: Your statement is really a very technical one that the father couldn't apply.

Certainly, a proceeding could've taken a place in which the father could have admitted it?

Mr. Leonard M. Henkin: If the mother applied, if the father who did support her, and also, she had to apply only within two years after the birth of the child.

The Attorney General says that if -- in Gordon versus Trimble case, if that case arose under the statute of the State of New York that child because there was adjudication would have been entitled to inherit.

We so respectfully submit to you that that is not the case because the New York statute required that that application be made only within the first two years after child was born.

Justice William H. Rehnquist: So, the New York Court of Appeals and its opinion at A-2 in this case says that, “Under our New York statute, the right to inherit depends only on proof that Court of competent jurisdiction is made in order affiliation declaring paternity during the lifetime of the father.”

That truly is --

Mr. Leonard M. Henkin: That is not correct because the necessity was not provided.

Justice William H. Rehnquist: Well, we're certainly not going -- well we're not going to second guess, let say of, New York Court of Appeals on what New York law is?

Mr. Leonard M. Henkin: Well, if Your Honor please, that the statute is printed in the record and it's in my brief and it's the language of that statute is very clear.

Justice Potter Stewart: Has to be made during the pregnancy of the mother or within two from the birth of a child?

Mr. Leonard M. Henkin: Right.

That is correct.

Justice Potter Stewart: That's what the statute says?

Mr. Leonard M. Henkin: That's exactly what the statute says.

Justice Potter Stewart: But the --

Mr. Leonard M. Henkin: So, when they made that statement, they're not quoting the exact language of the statute.

As matter of fact, I think there was a note somewhere that they didn't reach that point.

Justice Thurgood Marshall: You mean the Court of Appeals doesn't have to advance sheets?

Mr. Leonard M. Henkin: Beg your pardon?

Justice Thurgood Marshall: You mean the Court of Appeal doesn't have the advanced sheets?

Mr. Leonard M. Henkin: The advanced -- the decision of the Court of Appeals -- the opinion of the Court of Appeals, if Your Honor pleases, are printed, the first one in Appendix A, in the jurisdictional statement 75-1148.

Justice Potter Stewart: Right.

Justice Thurgood Marshall: Right.

Justice Potter Stewart: Now, you do say that order affiliation could've been secured under New York law at the behest of -- somebody other than the natural father during the natural father's lifetime?

Mr. Leonard M. Henkin: Yes.

That's correct, Your Honor.

Justice Potter Stewart: That is by the mother, the natural mother?

Mr. Leonard M. Henkin: Natural mother could've made the application.

Justice Potter Stewart: Or anybody else, the child?

Mr. Leonard M. Henkin: So far as -- the child yes.

Two-year old child could possibly do it if he was smarter enough at the age of two to do so.

Justice Potter Stewart: And the -- but you say that as a matter of practical fact the natural mother wouldn't have done it and why was that?

Mr. Leonard M. Henkin: The natural mother would not have done it because she was living together with the father and he was supporting her and the children.

Justice Potter Stewart: Was that -- was she the -- his sister-in-law?

Mr. Leonard M. Henkin: No.

No.

Justice Potter Stewart: What was she?

She -- her name was Lalli too, wasn't it?

Mr. Leonard M. Henkin: Her name was Lalli because she was living with Mr. Lalli.

Justice Potter Stewart: Yes.

Mr. Leonard M. Henkin: That was her name by courtesy.

They were maintaining their household.

He bought her a house where she lived together with the two children of this particular, what shall I say, “Relationship” and in addition to the child born to her by prior marriage -- by prior relationship with some other man.

Justice Potter Stewart: And where was Mrs. Lalli all this time?

Mr. Leonard M. Henkin: She was living in another house.

Justice Potter Stewart: He had to know.

So, the captain's paradise?[Laughter]

Chief Justice Warren E. Burger: I think your time is expired now, Mr. Henkin.

Mr. Leonard M. Henkin: Thank you, Your Honor.

Argument of Irwin M. Strum

Chief Justice Warren E. Burger: Mr. Strum.

Mr. Irwin M. Strum: Mr. Chief Justice and may I please the Court.

The New York statutory scheme does not discriminate against illegitimates inheriting either from their mother or father.

It merely provides in the case where an illegitimates is claiming through his father that there be an order of a New York Court determining parentage made during the lifetime of the father.

While the statute does refer to a two-year requirement, the New York courts have not enforced that two-year requirement and as you will find in the brief filed by the Attorney General, there are decisions which indicate that is not the law of New York at the present time, although there has not been a determination on that, but the New York Court of Appeals.

Chief Justice Warren E. Burger: The Court of Appeals has never read it out of the statute, do they?

Mr. Irwin M. Strum: No.

It is never read it out of the statute.

The law --

Chief Justice Warren E. Burger: In this case, they just ignored it?

Mr. Irwin M. Strum: Yes.

The lower courts have.

They have treated it for various reasons constitutional and otherwise as just being an unwise legislative discribment.

But other than that, the requirement that the order be obtained during the lifetime of the father, I think is a reasonable one.

I think we're here not to consider the peculiar equities of this particular case and there maybe equities on the appellant side, I don't argue that there are not.

What we're here to evaluate is the New York statutory scheme and whether the legislature of the State of New York in protecting its citizens and in passing laws with regard to decedent's distribution, could require as a requirement in the case of illegitimates inheriting from their father that there be a Court order during the lifetime of the father in order to prevent fraud, in order to prevent a situation where New York estates would not be closed.

Obviously, situations could arise where illegitimates are not known off and they could make claims later on, and it would destroy the sanctity of decrees which determine distribution in the State of New York.

And I think for that reason, the legislature as indicated by the report of the Bennett Commission was justified in making this requirement.

I think, the requirement is a reasonable one and I think, that is the only test.

Chief Justice Warren E. Burger: Is it reasonable to assume that the two-year limit was placed by the legislature or probably placed there by the legislature, so that the facts could be ascertained while there were people around who could test the fact?

Mr. Irwin M. Strum: Yes, I would assume that was the purpose behind it.

I can understand the difficulty in requiring it within two years, but of course, if you're dealing with the very young child, baby, and perhaps, you don't want to cut off that child's right.

So, I can understand why the New York Courts have gone out of their way to exercise the two-year provision, but I also understand why it's there and I think it's a functional purpose.

Chief Justice Warren E. Burger: Does the acquiesce of the Court of Appeals or the apparent acquiesce of the Court of Appeals in this interpretation by its constituent courts, mean the same thing or should it mean the same thing to us as a holding of the highest court of the state construing the statute?

Mr. Irwin M. Strum: Well, I would not classify it as a holding and I would not go so far.

But I --

Chief Justice Warren E. Burger: Well, but should it be equated?

Mr. Irwin M. Strum: I think for the purposes of this argument and for the purposes of the constitutionality of the New York, yes, I think it can be equated.

Justice Potter Stewart: But in any event there was no order of affiliation until it's any --

Mr. Irwin M. Strum: In this case there was none whatsoever and that --

Justice Potter Stewart: During the lifetime of the father?

Mr. Irwin M. Strum: No, and there was no attempt to get one.

Justice Potter Stewart: Or ever?

Mr. Irwin M. Strum: Yes.

And let me -- let's be clear about this.

This statute went into effect in 1967.

The decedent in this case --

Justice Potter Stewart: 1976, we were told.

Mr. Irwin M. Strum: No.

The statute -- this statute, the EPTO went into effect in 1967.

The decedent died in 1974.

There was ample opportunity.

The appellant was an adult.

There was an ample opportunity for him to go to court during a lifetime of his father.

If he believe that there was justification for such an application.

Justice Potter Stewart: It is 4-1.2 went into effect in 1967?

Mr. Irwin M. Strum: Yes, that's correct.

Justice Potter Stewart: Yes.

Mr. Irwin M. Strum: That is the statute now before this Court.

Justice Potter Stewart: Yes, I know.

Mr. Irwin M. Strum: No other statute.

Justice Potter Stewart: We would --

Justice William H. Rehnquist: Or if he sought counsel, counsel might have advised him that since the two-year period had expired, it was no use?

Mr. Irwin M. Strum: Well, there's no showing that he attempted to seek counsel.

Furthermore, we're not discussing, I believe Your Honor, probabilities or possibilities.

We're discussing of statutory scheme and I think the legislature in making that determination had every right to reason require this and I think, he had certainly an opportunity to go to Court and make an application and if the Court then would have turned him down, he could have appealed on that basis.

Justice Byron R. White: Well, under that if you're talking about the statutory scheme, I suppose under the statute, if there was a Court order prior to the death of the father, obtained on the petition of either the son or mother it would be -- it would satisfy the statute whether or not the father was around, could be found, or participated in the hearing?

Mr. Irwin M. Strum: I would assume so, Your Honor.

Justice Byron R. White: They could go to Court and say the father had disappeared and still --

Mr. Irwin M. Strum: Well, he could've been served by publication.

Justice Byron R. White: Alright.

But nevertheless, he need --

Mr. Irwin M. Strum: No.

Justice Byron R. White: He didn't need to be available to give evidence or anything?

Mr. Irwin M. Strum: No.

No.

Justice Thurgood Marshall: Mr. Strum, if I --

Justice Byron R. White: Well, what's wrong then with the day after the father dies, what's wrong with determining the inheritance?

Mr. Irwin M. Strum: Well, you're then depriving the father of an opportunity to give evidence.

There's a difference between him having the right to be there and give evidence, and participate if he so chooses and being precluded in the absolute by his death and I think that's a distinction which is important.

Justice Thurgood Marshall: How do we say that this statute is constitutional and not unconstitutional because the two-year provision will never be enforced, Is that what you want us to say?

Mr. Irwin M. Strum: No, Your Honor.

I think, we don't reach that question because the two-year provision has nothing to do with this case.

Justice Thurgood Marshall: But it would -- we only have to talk about that statute?

Mr. Irwin M. Strum: Yes, but I --

Justice Thurgood Marshall: We don't have to mention it?

Mr. Irwin M. Strum: I don't believe, Your Honor that we should be talking about a statute in the abstract necessarily.

We should be talking about a statute as applied and I think as applied in this case, the appellant hasn't ripened question because there was no attempt to obtain the order of affiliation within the two-year period and furthermore, because New York doesn't apply the two-year requirement.

Justice Thurgood Marshall: You want us to just ignore the statute?

Mr. Irwin M. Strum: I would suggest that the two-year requirement is not applicable to this case.

Justice Thurgood Marshall: I'm saying about the statute?

Mr. Irwin M. Strum: No, the statute should not be ignored, it should be enforced.

Justice Thurgood Marshall: Well, how can we mention the statute and ignore a part of it?

Mr. Irwin M. Strum: Well, the part that we are ignoring or I suggest be ignored is not in this case.

Justice Thurgood Marshall: You're saying in this case -- we say that this case which involves a 28-year-old man is not bound by the two-year old provision?

Mr. Irwin M. Strum: That's correct, Your Honor.

Justice Thurgood Marshall: I don't know what I think of somebody wrote that?

Justice Potter Stewart: Well, is it true that the Courts in New York have all agreed that the two-year provision is invalid or should, should be ignored?

Mr. Irwin M. Strum: The Courts that have heard that question have agreed to that.

Justice Potter Stewart: Yes, that's what I'm talking about.

Justice Thurgood Marshall: And will you give us the citation so we --

Justice Potter Stewart: In his brief.

Mr. Irwin M. Strum: There are citations in the brief, Your Honor.

Justice Thurgood Marshall: A citation would say that we are ignoring the two-year --

Mr. Irwin M. Strum: Yes, there are.

They get a rounded for various reasons.

Justice Thurgood Marshall: No.

Well, that's not what I said.

Do you have one that says, “We ignore it?”

Mr. Irwin M. Strum: Not those words, Your Honor.

Justice Thurgood Marshall: That's right, I didn't think you did.

I didn't find it?

Mr. Irwin M. Strum: But the Courts have failed to apply it.

Justice Thurgood Marshall: Are we limited to do that?

Mr. Irwin M. Strum: Well, I think you are limited to the facts in this case and the application of those facts to the statute.

Justice John Paul Stevens: Mr. Strum if we should disagree with you, I'm not -- don't know with the Court will do, on the issue of whether the requirement of affiliation during the lifetime of father is constitutional.

Assume we conclude that to be unconstitutional then we must squarely faced the two-year problem, mustn't we?

Mr. Irwin M. Strum: Well, I think if you're going to say that the requirement that it'd be during a lifetime of the father is unconstitutional then I think the whole statute would probably fail.

Justice John Paul Stevens: Then you would can see that the two years statute -- well, I don't understand how you can concede what you in substance do, although not quite in words that the two-year provision is unreasonable because it retreats some illegitimates irrationally in a different way from other illegitimates without a irrational justification.

How can you say that and say that the, say five years after birth the father dies and still the child must be barred?

Mr. Irwin M. Strum: I personally, I'm not suggesting to Your Honor that the two-year requirement is unreasonable.

Justice John Paul Stevens: Well, you just --

Mr. Irwin M. Strum: I am saying to you that the New York Courts when considering the --

Justice John Paul Stevens: Well, you've said, “We should assume that the New York Courts would not enforce it because it's perfectly obvious that it's unreasonable,” that's the substance of what you've said --

Justice Potter Stewart: You cite in this cases.

Mr. Irwin M. Strum: Yes.

Justice Potter Stewart: On the bottom --

Justice Thurgood Marshall: Let me just quote the Court of Appeals because they have passed it on their own statute and they didn't say a word about the two-year?

Mr. Irwin M. Strum: No, they didn't because they felt it was not --

Justice Thurgood Marshall: Well, why don't we just base our opinion in what they say?

Mr. Irwin M. Strum: Well, that's what I'm asking this Court to do.

Justice Thurgood Marshall: I see.

Justice Potter Stewart: The case --

Mr. Irwin M. Strum: The only reason I raised the two-year question is because the appellant raised it.

Justice Potter Stewart: The case is to which you refer are those cited on the bottom page 4 of your briefs. Matter of Thomas --

Mr. Irwin M. Strum: Yes, Matter of Thomas, Matter of Flemm.

Justice Potter Stewart: Matter of Flemm.

Mr. Irwin M. Strum: Yes.

And there was another case I believe Matter of Nurse.

Argument of Suzanne McGrattan

Ms Suzanne McGrattan: Matter of --

Rebuttal of Irwin M. Strum

Mr. Irwin M. Strum: Yes.

We will provide those citations to the Court.

Justice Potter Stewart: Well, you already provided two of them and you represent that that's the -- that there are no cases contrary to that that you found?

Mr. Irwin M. Strum: I -- know no cases where that question has arisen where the New York Courts have applied that two-year statute.

I believe that the statute in Illinois which this Court considered in Tremble versus Gordon is completely different.

That statute prohibited, prohibited in the absolute inheritance from a -- by an illegitimate from its father except under one specific, very limited circumstance that of a -- where the natural mother and father married and there was an acknowledgment to that point.

The New York statute does not attempt in any way to discriminate.

It merely says, in the case where someone is claiming to be an illegitimate child through a father that there be a Court order determining that during the father's lifetime.

And I respectfully submit that as a substantial difference, not only in approach but in meaning.

Justice Potter Stewart: Or that -- or that the natural mother and the father have married either before or even after the birth of the illegitimate child?

Mr. Irwin M. Strum: Yes, that would legitimatize.

Justice Potter Stewart: And even though the marriage be void or voidable?

Mr. Irwin M. Strum: Right.

That would be illegitimately under another statute which is not at issue here.

If there any other questions --

Justice Potter Stewart: You don't have to -- you don't have to have an acknowledgment, you just have to have a marriage, correct?

Mr. Irwin M. Strum: That's correct.

Justice Potter Stewart: Unlike the Illinois law?

Mr. Irwin M. Strum: Unlike the Illinois statute and I submit that had the situation arose as applied in Illinois and New York, there would have been -- an inheritance would've been permitted because there was a Court order.

That's all the New York law says there has to be a Court order.

Justice Thurgood Marshall: You mean in New York somebody is got 56-year old child and they get married at that child is legitimatized?

Mr. Irwin M. Strum: Sure.

Justice Thurgood Marshall: Merely by the marriage?

Mr. Irwin M. Strum: That would legitimatize the child.

Justice Potter Stewart: Well, Mr. Strum.

She has to marry the --

Mr. Irwin M. Strum: The natural father, yes.

Justice Potter Stewart: Well, how do you know?

What if she just marries John Smith and --

Justice Thurgood Marshall: That's right, doesn't it?

Mr. Irwin M. Strum: Well, you wouldn't know except it would be a question to proof.

Justice Thurgood Marshall: Yes.

Justice John Paul Stevens: Mr. -- General Strum, let me question you once more about the state interest that this statute vindicates and we're talking about the requirement that the order be obtained during the lifetime of the father.

As I understand that the state interest is giving the father the opportunity to deny parentage?

Mr. Irwin M. Strum: That is one side of --

Justice Byron R. White: And how's -- oh, what else is there?

Mr. Irwin M. Strum: This -- also the state interest is in seeing to it that there's an orderly distribution of estates.

In other words, the situation is that we don't wish anyone after somebody dies to come in and make a claim because of the difficulty of proof, and because of the question of, “You would have to keep estates open for an inordinate period of time”.

Justice John Paul Stevens: Why?

Why, why couldn't you have the normal rule you do on the states that claims to have to be filed within a limited period of time?

I don't understand --

Mr. Irwin M. Strum: But that -- because you would have to publish --

Justice John Paul Stevens: You do it anyway because don't you occasionally have estates in which people claim to be legitimate children that there is a contest over there?

Mr. Irwin M. Strum: Yes.

But you would be opening the -- opening the --

Justice John Paul Stevens: Don't you have to make that claim within a specified period of time?

Mr. Irwin M. Strum: Oh, sure.

Justice John Paul Stevens: Why couldn't the same rule take care of this problem?

For what --

Mr. Irwin M. Strum: It could except -- except that you're going to have people who are going to come in and make claims and say, they didn't know or they had no opportunity of knowing.

Justice John Paul Stevens: You have that with legitimates too.

You have the same things.

Let's focus for moment on your -- on your primary interest I gather is that you want to give the father the opportunity to deny parentage?

Mr. Irwin M. Strum: That's correct.

Justice Byron R. White: That's, that's the real reason for the cut-off.

Well, supposing the papers of the father and there is abundant evidence to the fact that he is not just as, sort of someone ambiguous what you have here, but he is repeatedly acknowledged it, written it out many, many times that the person involved is my true and natural son.

What is the state interest in giving such a father an opportunity to contradict what he has said repeated, when he said repeatedly to the contrary?

Mr. Irwin M. Strum: How Your Honor do you draw the line.

What are we going to say?

Justice Byron R. White: Till we make to say in terms of standard of proof.

You might require proof beyond all doubt, beyond a unreasonable doubt, something like that.

But when you have un-contradicted proof and there are all agreement on the fact, and I know you don't have that here, then, what's the state interest?

Mr. Irwin M. Strum: Well, again, I think -- I think --

Justice John Paul Stevens: And then, do you not discriminate against some illegitimates?

Mr. Irwin M. Strum: No.

I don't think you discriminate.

I think the legislature has the right to set the standard of proof.

Now, providing that standard of proof is a reasonable one.

Providing the requirements are reasonable like keeping that --

Justice John Paul Stevens: This is not a standard of proof.

This is saying that no matter how convincing the proof, this is standard of eligibility.

Mr. Irwin M. Strum: Alright.

It is that but it is a standard of eligibility by way of judicial determination.

Justice Potter Stewart: It's a manner of proof?

Mr. Irwin M. Strum: That's correct.

And I think the legislature has the right to say, “We want a judicial determination, when it can be had, and when it can fairly be had” not when somebody can be put upon, I'm not saying that it would happen in every case or any case, I'm saying it is to preclude the possibility.

So, you have to draw a line.

You have to draw standards.

You have to mark everything off.

If you don't mark everything off, what you're going to have is confusion and chaos and I think the legislature has a right to do that.

I think as long as they act fairly and reasonably.

I think it's within their right and I don't think this Court --

Justice John Paul Stevens: The sole justification according to you is to protect the right of the father to testify to the contrary when the record makes it clear he has no such desire?

Mr. Irwin M. Strum: Well, but that's a determination that you making after fact.

I think the legislature in the right to protect its citizens has the right in the first hand to set the standards and I think people are then required to live up to those standards like in any other situation.

I think, we --

Chief Justice Warren E. Burger: What you're saying perhaps is that New York is not obliged to have a perfect statute, so long as they have a reasonable one?

Mr. Irwin M. Strum: I quite agree with the Chief Justice.

Justice Harry A. Blackmun: Does the state take any position with respect to this claimant that all was to whether he is or is not the natural child of the decedent?

Mr. Irwin M. Strum: I have no knowledge of the facts.

This case came up on very incomplete record.

Your Honor, there was a motion made to dismiss with regard to the status.

So, the only issue before the Court was the status of the claimant.

Now, the Attorney General was not a party at that time.

We're only a party with regard to the constitutionality of the state's statute and I really don't want to comment --

Justice Harry A. Blackmun: So, you're conceding nothing factual here, don't you?

Mr. Irwin M. Strum: No, I'm not.

Because I -- I'm not in a position to, Your Honor.

Justice John Paul Stevens: But it is clear that you're argument would be precisely the same, if you were prepared to concede the facts?

Mr. Irwin M. Strum: Yes, Your Honor.

Justice John Paul Stevens: We should treat the legal issue as though the facts were tantamount to be in conceded, realizing that they would be challenged later?

Mr. Irwin M. Strum: I agree with that Your Honors.

Yes.

Chief Justice Warren E. Burger: Thank you, gentleman.

The case is submitted.

Your time is expired.

Featured:

Trimble v. Gordon - Oral Argument

Sun, 08 Aug 2010 17:07:14 +0000

Case:

Trimble v. Gordon

Media File:

75-5952_19761207-argument.mp3

Related Transcript:

75-5952_19761207-argument.xml

Transcript:

Argument of James D. Weill

Chief Justice Warren E. Burger: We will hear arguments now in 75-5952, Trimble v. Gordon.

Mr. Weill, you may proceed.

Mr. James D. Weill: Mr. Chief Justice and may it please the Court.

This case is on appeal from the Illinois Supreme Court and concerns the question that whether the Illinois intestate succession statute, which excludes illegitimate children from inheritance from their fathers but grants such inheritance rights to all legitimate children, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

Deta Mona Trimble was born in 1970.

Her parents were not married.

Deta and her parents lived together and she was supported by her father pursuant to an Illinois paternity adjudication and support order.

In 1974, when Deta Trimble was three-and-a-half years old, her father, Sherman Gordon, died at the age of 28, the victim of a homicide.

He left no will and no surviving spouse.

Deta is his only child.

Under the Illinois Probate Act, legitimate children inherit from either parent in intestacy, and the illegitimate child, on the other hand, will inherit from his or her mother but is not the heir of an intestate father.

Pursuant to this statute, the Probate Court entered an order declaring Sherman Gordon’s heirs to be his parents’ siblings and a half-brother.

The court rejected the challenge to the constitutionality of the statute.

The Illinois Supreme Court granted leave to appeal directly to the Trimbles and the Illinois Supreme Court then affirmed the Probate Court decision.

There was no written opinion since the Court held that its decision four months earlier in the case of In re Estate of Karas was dispositive.

In addition, the fully brief in their own case the Trimbles had filed an amicus curiae brief in the Karas case.

Justice Harry A. Blackmun: Mr. Weill, was there any impediment to Deta’s parents’ marrying?

Mr. James D. Weill: No, there was none that we know of.

Justice Harry A. Blackmun: There was a paternity suit here, wasn’t there?

Mr. James D. Weill: Yes, there was a paternity adjudication.

Justice Harry A. Blackmun: What prompted that?

Was that a friendly suit or an unfriendly one?

Mr. James D. Weill: At some point, Ms. Trimble may have been on public aid and it would have been a public aid suit.

The Public Aid Department is required under federal law wherever anybody is on AFDC to establish paternity and bring a suit for support.

Justice Harry A. Blackmun: Would this law suit get down to that as a litigation between the child and the other blood relatives of the decedent, correct?

Mr. James D. Weill: That is correct, but it is a question of whether a state which gives inheritance rights to children generally can exclude illegitimate --

Justice Harry A. Blackmun: I know what question it; this is what it amounts to, isn’t it?

Mr. James D. Weill: Yes, that is correct.

This Court has ruled in recent years in several cases that legitimate children and illegitimate children whose paternity has been established are to be considered to be identically situated.

The statute at issue here discriminates because it denies to illegitimate children the state-created inheritance right which is accorded to children generally.

This discrimination is unconstitutional under any standard of review since it does not bear the remotest rationale relationship to any legitimate state interest.

There have been four suggestions made by the Illinois Supreme Court or by appellees here --

Justice Harry A. Blackmun: I take it, Mr. Weill, from your comment just now you concede that the rationality standard applies?

Mr. James D. Weill: No, we do not concede that, we still believe that strict scrutiny or some form of heightened scrutiny is potentially applicable.

We believe that because illegitimate children bear all or most of the traditional indicia of suspectness, they have been historically discriminated against their discrete and insular minority that some kind of heightened scrutiny is applicable.

Justice Harry A. Blackmun: I thought that you said that under any standard of rationality?

Mr. James D. Weill: We said under any standard of equal protection review, the statute must fall.

The statute, because there is no rationale basis whatsoever, the Court need not reach the question of a higher level of scrutiny.

Unknown Speaker: How do you reconcile your answer to Justice Blackmun’s question with Mathews v. Lucas that we decided last term?

Mr. James D. Weill: Well, the Lucas case did not concern a total exclusion of illegitimate children.

The Lucas case found the statute to be very “carefully tuned” to the needs and considerations of including illegitimate children.

It is not a total exclusion like this is.

Unknown Speaker: But it differentiated legitimate from illegitimate children, didn’t it?

Mr. James D. Weill: Yes, only marginally and only when there was no significant evidence of pre-existing support or paternity adjudication.

Where however the statute just blanketly excludes illegitimate children, we believe that some form of heightened scrutiny is appropriate and Lucas does not --

Unknown Speaker: Burden is naked exclusion here, is there, Mr. Weill?

Mr. James D. Weill: Yes, to the degree that illegitimate children cannot inherit from their fathers in intestacy, the State has created a total exclusion of them.

Unknown Speaker: Well, isn’t that something -- what if the parents marry?

Mr. James D. Weill: If the parents marry and the father acknowledges the child, then the child is legitimate.

Unknown Speaker: What if they do not marry and he acknowledges?

Mr. James D. Weill: If he acknowledges the child, or if the child’s paternity is adjudicated, the child remains illegitimate and is not eligible to inherit under the Illinois Intestacy Law.

Chief Justice Warren E. Burger: You said there is no rational basis whatever for this.

What was the historical basis long thought to be the justification?

Mr. James D. Weill: These intestacy statutes and the exclusion of illegitimate children come out of Medieval England.

At that time in a --

Chief Justice Warren E. Burger: Well they have regarded as valid somewhat later than Medieval England, have they not?

Mr. James D. Weill: That is correct, but the origin of them relates to an essentially land based society.

The Illinois Supreme Court suggested that its main concern was the proof problem here, and that was the main --

Chief Justice Warren E. Burger: In other words, there is no problem with proving mother.

Mr. James D. Weill: That is correct, but it is our contention that the State cannot --

Chief Justice Warren E. Burger: But it does not open itself to a fraud, does it?

Mr. James D. Weill: That is correct.

The mother’s maternity is relatively easy to establish.

But the State here has ignored all concerns of whether or not paternity has been established of the father for the child.

The Illinois Supreme Court while talks about the proof problem, it is hypothesizing various abstract situations.

It is not dealing with the reality of this situation or analogous situations where paternity has been adjudicated by its own court system.

In that case, there is no more doubt about paternity than there is for any other child.

They are not -- the Illinois Supreme Court also ignored situations where the child’s paternity has been acknowledged.

There is no proof problem in this case.

There is no question as to the paternity.

So our contention to this is supported by all of this Court’s decisions on the illegitimacy area, including the Lucas decision that the State cannot exclude all illegitimate children based on proof problems, that the State has to create some form of nexus between what it considers to be the proof problem and the scope and quality of the exclusion, and this blanket exclusion does not do that.

Chief Justice Warren E. Burger: I understood your response to Mr. Justice Blackmun’s question to at least intimate that this was not an unfriendly adversary paternity suit.

Did I get that correctly?

Mr. James D. Weill: Well, I do not really know, the record does not show that.

It was, I believe, brought by the Public Aid Department.

The father, Sherman Gordon, did admit during the course of that trial; he did admit his paternity.

Chief Justice Warren E. Burger: And that was, you said, to establish eligibility for a particular welfare?

Mr. James D. Weill: No, that would not establish the eligibility.

The eligibility -- Ms. Trimble and the child would already have been receiving AFDC.

Chief Justice Warren E. Burger: But without it, was there a difference?

Mr. James D. Weill: No.

Chief Justice Warren E. Burger: Well, then I did misunderstand you.

I had the impression from your response that it was related to some degree of eligibility for benefits.

Mr. James D. Weill: No, there would have been no incentive for collusion at the trial of any kind about can it be --

Unknown Speaker: What you are talking about is a recent federal statute, as I understand it.

Mr. James D. Weill: That is right, but there were --

Unknown Speaker: That requires a recipient.

Mr. James D. Weill: A pre-existing recipient.

Unknown Speaker: I am saying, this is if a husband deserts a marriage situation that husband deserts, there is now an obligation to seek support, isn’t it?

Mr. James D. Weill: That is correct.

Unknown Speaker: And that is what this is.

Mr. James D. Weill: Well, no, because they were not married.

There is an additional obligation --

Unknown Speaker: Oh they were not, but I mean that is the same statute.

Mr. James D. Weill: That is right.

The statute, in addition to seeking to acquire support from fathers whether or not there has been a marriage, also seeks to establish the paternity of illegitimate children under this federal mechanism.

Unknown Speaker: Also, Federal Court sees to it, doesn’t it?

Mr. James D. Weill: No, only in the last resort to collect the support, but it is essentially a State Court proceeding.

It uses the normal state paternity proceeding but now that portion of the State Court is 75% federally funded.

Unknown Speaker: These parents were living together, weren’t they?

Mr. James D. Weill: Yes, they were.

The second rationale offered by the Illinois Supreme Court is the so-called presumed intent argument to claim that the statutory disposition is in the Court with the presumed intent of most decedents.

This argument fails in the first instance because the intestacy statute is a State action, and the State cannot base its statutory scheme on a presumption of invidious private intent nor can the State itself invidiously discriminate.

Unknown Speaker: What do you mean “invidious private intent”?

Mr. James D. Weill: Well, the State is assuming here that fathers of illegitimate children want to exclude their illegitimate children, they have no intent to grant inheritance rights or otherwise have any dealings with their illegitimate children.

Whereas they do, the State makes the exact opposite assumption for legitimate children.

In cases like Stanley, this Court has found that, that assumption is inaccurate that the State is building its view of child-father relationships on totally outdated stereotypes.

Unknown Speaker: Well, it may be inaccurate, but I think you used the word “invidious”.

Is there anything wrong if a father in fact decides to make that choice as between illegitimate and legitimate offspring?

Mr. James D. Weill: If the statute included illegitimate children and the father wanted to, by will, disinherit his legitimate children or his illegitimate children, he can do that by will.

The State cannot do that for him and the State cannot itself assume, across the board of its population, an intent to discriminate against illegitimate children, which this Court has said in eight cases, is invidious, that it is basically invidious and irrational in the first instance to discriminate against illegitimate children.

Unknown Speaker: In what cases did we use the word “invidious”?

Mr. James D. Weill: I believe I am not sure, but the line of eight cases striking down such discrimination certainly establishes that the illegitimacy discrimination will be closely looked at, and that it is to a degree suspicious to exclude all illegitimate children from any statutory scheme.

Chief Justice Warren E. Burger: But it is always within the power of the father to remedy that, isn’t it?

Mr. James D. Weill: That is correct.

That father’s --

Chief Justice Warren E. Burger: It is accorded by marriage or by a will or by a gift?

Mr. James D. Weill: It is not always within the power of the father to marry.

He may be already married or the mother may be already married.

He could conceivably write a will but as we point out in the briefs very, very few Americans write wills, and particularly those of the class and not only of the decedent father here but of, to a large degree, the fathers of illegitimate children.

Their illegitimacy tends to occur in lower and moderate income units where there is not a lot of property; there is not a great incentive to write a will.

Not writing a will may be because there is no access to lawyers or whatever.

So the argument that he could have written a will in this case, a 28 year old man who died from homicide, does not in the end justify the State’s own invidious action here.

The State cannot discriminate just because it allows some people to opt out of that discrimination.

In addition, returning with the presumed intent for a second, there is a poll in Illinois that is just reported in Mr. Krauss’s (ph) Book which shows that this just does not reflect, the statute does not reflect the desires of Illinois people, including any particular sub-group, sex or race.

The poll has broken that.

Chief Justice Warren E. Burger: Is that a separate basis for attack on the statute that you take a poll and what the legislature has enacted does not reflect the will of the people?

Mr. James D. Weill: No, but in this case it helps to explain why the Illinois Supreme Court did not rely on the presumed intent argument itself.

The Illinois Supreme Court never mentioned that it thought the statute was in accord with the desires of these fathers.

All the Illinois Supreme Court mentioned essentially was the proof problem and the last point, which is, Illinois said they had an interest in promoting legitimate family relationships.

So to that degree, the poll explains why that was not reached.

On the legitimate family relationship point, this Court has said in several cases that penalizing illegitimate children for the sins of their parents is neither a just nor an effectual way to accomplish the State’s goals of encouraging legitimacy and encouraging marriage.

Justice Potter Stewart: Doesn’t the Court have to presume that the legislation enacted by a state legislature represents the public policy of that state?

I do not know of what importance it is but --

Mr. James D. Weill: I am not sure I understand the question.

That it reflects the policy here protecting the strengthening of family relations?

Justice Potter Stewart: You say that the law of Illinois is contrary to the wishes of the people of Illinois.

It does not reflect the public policy espoused by the majority of people of Illinois.

As I say, I do not really know what materiality or relevance that has, but it would seem to me that if it has and whenever it had became material, then the Court would have to presume that a law enacted by a state legislature does in fact represent the policy views of the people of that state until a law is amended.

Mr. James D. Weill: That is generally correct, I was only making the point here because the Illinois Supreme Court has not in this instance said that this law reflects the general intent of the people of Illinois.

But that was not a basis.

Now that presumption certainly can be made even if the Illinois Supreme Court did not make it.

But again, that does not, I go back, that does not justify the State’s invidiously discriminatory action.

Justice Harry A. Blackmun: Does that concept need the blessing of the highest court of the state, or does it flow from the actions of the legislature as Justice Stewart has suggested?

Mr. James D. Weill: It does flow from -- there is a presumption that the legislation represents what the people want, but I am suggesting --

Justice Potter Stewart: It just does, I mean that is the best evidence of what the people want is what their legislatures enact, is it not?

Mr. James D. Weill: That is correct, but we are talking about it in a different context here, in an abnormal context where the presumed intent argument does not relate to what the people as a whole want.

It is an argument about what decedents and particularly want decedents in a particular group, and the Illinois Court refused to find or did not find that that was happening here.

It is not an presumption as to the general population.

I would like to turn very briefly to the Labine case which this Court decided a few years ago, it is our position that Labine is substantially distinguishable on several grounds.

The first case, Labine is significantly inclusive of illegitimate children in a way that the Illinois statute is not.

Labine has a mechanism for support of minor illegitimate children.

Labine let illegitimate children inherit before the state has cheated to the State.

Labine also involved a right to inherit where there would be unilateral acknowledgement by the father and a unilateral expression of an intent to legitimate.

In addition, Labine involved --

Justice John Paul Stevens: Just doing a little faster Mr. Weill.

The third, it was that in Labine they allowed inheritance when there was a unilateral expression by the father.

That was inherited if there was a will, wasn’t it?

Mr. James D. Weill: No.

Justice John Paul Stevens: Intestate succession?

Mr. James D. Weill: Yes, the second to the last paragraph of the majority opinion in Labine discusses the Louisiana Supreme Court decision in the Miller case in which the unilateral acknowledgement and statement of an intent to legitimate in that acknowledgement by the father entitled the child to intestate succession rights.

Justice John Paul Stevens: A statement of intent to legitimate, which we do not have here.

Mr. James D. Weill: That is right, but Louisiana had a mechanism for that.

Illinois has created no mechanism.

Illinois’s mechanism is a paternity adjudication, but then Illinois has turned around and ignored that in its intestacy scheme.

Justice John Paul Stevens: I see -- and the first distinction you gave was that there they provided for support, but here this support -- I do not think that distinction --

Mr. James D. Weill: They provided for the support for the minor child from the intestate estate of the fathers, from the heirs of the father.

The child had a right to so-called alimony or support from the estate, not support while the father was still alive.

Since the Gomez decision, that has been true in all states.

Justice Thurgood Marshall: Of course, basic to all of that is Louisiana is based on the Pollyanna Code and the rest of the states are based on time alone.

Mr. James D. Weill: That is right.

Louisiana had a very unusual scheme and it is our position that that is so distinguishable in a variety of ways, others of which are mentioned in the brief.

I would like to reserve the remainder of my time for rebuttal.

Chief Justice Warren E. Burger: Mr. Beermann?

Argument of Miles N. Beermann

Mr. Miles N. Beermann: Mr. Chief Justice, and may it please the Court.

There is no decision of this Court that has held that illegitimates are a suspect class.

Therefore, we submit that the proper test to determine whether or not this particular statute violates the Equal Protection Clause is not the scrutiny test that counsel would ask us to adhere to, or even a higher scrutiny, but the reasonable basis test and whether or not this statute bears some rational relationship to a legitimate State purpose.

I think in one of the questions, counsel was asked about that and if I may, I think that the State purposes that this statute serves are: (1) to encourage family relationships; (2) to regulate property of decedents who die intestate -- property that is located within the borders of the State; (3) the stability of land titles; and (4) the prompt and definitive determination of the valid ownership of property left by decedents.

Also, I would say along with that is the prompt adjudication of probate estates.

Another one of the purposes would be to deter spurious claims, which I will get into.

Justice John Paul Stevens: Mr. Beermann, we are not really talking about very much of the estate, are we?

Mr. Miles N. Beermann: No, Your Honors, as a matter of fact we are talking about $1500.

Justice John Paul Stevens: And your clients concede there -- or maybe it does not make any difference anyway.

Do they have a blood relationship to this little girl?

Mr. Miles N. Beermann: Well, my client -- I only get one client, Your Honor, and that is the mother of the decedent, so that she would be the blood paternal grandmother of the little girl.

Justice John Paul Stevens: I suppose you are not defending the Illinois statute as a matter of policy if you were a legislator, when it says that the paternity suit or an acknowledgement is not enough, there has to be marriage in addition.

Mr. Miles N. Beermann: Well, it stills set up a mechanism whereby the child can be recognized.

Insofar as Labine, as counsel alluded to, said that when the father in Labine acknowledged the child, he could have also made another statement along with that acknowledgement, allowing the child to inherit, but he did not do that.

In this case, the decedent did not marry the mother of the child and did not acknowledge the child.

Now technically, the child was acknowledged for him in the paternity proceedings and it was an order that issued from the Circuit Court of Cook County deciding that he was the father and ordering him to pay support for the child.

Getting back to the state purposes, they were recognized as being valid not only in Labine but in this Court’s opinion in Weber v. Aetna.

Even though the Weber decision went the other way because it was discrimination, as I recall it, among illegitimates.

It is clear that the power to make such rules, to bear that relationship to the state purposes should be left to the state.

Getting to the statutory will theory, I believe that the statutory will theory is a viable and valid theory.

I think that the laws on intestacy are an attempt by the State to determine to whom the decedent would want his property distributed if he were to die unexpectedly or without making a will.

Now, the fact, as counsel alludes to that most people do not make wills, I think proves that people are satisfied with the legislative action in this area.

For example, in Illinois, if there is no will and there is a surviving spouse and no children, the surviving souse I believe receives everything.

If there are children, the surviving spouse receives one third and the children receive two thirds.

In this particular case, the decedent by making a will could have left everything to his child.

Now in Illinois, a surviving spouse if she is left out of the will can renounce the will.

The children have no right to renounce the will and there is no right in a child in Illinois to inherit from its father.

That does not mean whether you are legitimate or illegitimate.

You would give away to your mother, so to speak.

She has the right to renounce the will and children do not have a right to renounce the will.

Unknown Speaker: Maybe an after-born child has some rights.

Mr. Miles N. Beermann: An after-born child I think, if I recall the statute correctly, is an automatic revocation of the will, Your Honor, and the after-born child takes as if the decedents died intestate.

So if the decedent had cut out of his children that were born before the after-born child, the after-born could take as if there was no will, even if the other children were cut out.

Justice John Paul Stevens: It is not quite right to say that the children have no rights because if there is no will at all and the parent dies intestate, there are right.

Mr. Miles N. Beermann: I did not mean to imply that, Justice Stevens.

You are 100% correct.

What I am stating is that the children in Illinois have no inherent right to inherit from their father, and yes, if the father dies intestate, legitimate children would inherit two-thirds or all of his estate as the case may be.

Justice John Paul Stevens: With respect to your argument about the problem of probate, certainty of title in property, ownership and all the rest, how does that apply when you have got an adjudication, as you do in this case, of paternity?

Why is that any harder to establish than the normal legitimate father?

Mr. Miles N. Beermann: I do not know that it is not except that you may -- I suppose what the legislature had in mind when they added the added criteria or the added condition of having the parents to marry would be so that the illegitimate children would not take to the exclusion of legitimate children.

I think one of the main problems here is the philosophical problem of whether or not, the fact that a child has been decreed to be the child of the decedent, if you will, means that, that child is the natural object of the decedent’s bounty.

The child is the victim of an illicit relationship and I think that overwriting all of these concerns is the family relationship.

Justice John Paul Stevens: That family argument has always puzzled me somewhat because it would seem to me that by saying to the father, if you have illegitimate children they cannot share in your estate.

That is less of a deterrent than if you said to the father, if you have an illegitimate child, that child will share with your children.

Why does one deter the misconduct more than the other?

Mr. Miles N. Beermann: I do not think it is -- I look at it from the opposite way.

I think that by stating that -- what the legislature is trying to do, I think, and what the public policy of the State is, is to foster legitimate family relationships and not to foster illicit relationships by stating that if you die intestate, your illegitimate children will share in your estate.

I am not sure if I am answering your question, but the -- I do not know if there is any answer.

The point is that the father, if he wanted to, could make a will and leave all of his estate to any of his children, or to none of his children, as the case may be.

Justice John Paul Stevens: Well, if you rely on the ability to make the will, of course that answers everything.

Mr. Miles N. Beermann: I really think it does.

I do not think that there is anything mysterious about making a will.

Justice John Paul Stevens: Then you guys suppose you can have a statute that said, blacks shall not inherit from whites because you presume whites would not want blacks to inherit their property, and always make a will to leave the property to whomever they want to.

I mean what would be wrong with such a statute?

Mr. Miles N. Beermann: I do not think that there is any relationship to a legitimate state purpose.

I cannot conceive of one.

Justice John Paul Stevens: Well, a legitimate purpose would be that, presumably, if people had to take a poll, most people would assume that more whites would want their property to go to people of the same race than the people of another race.

But isn’t that a realistic assumption, even if it might not be a very attractive one?

Mr. Miles N. Beermann: I could imagine under certain circumstances it could be realistic.

Justice John Paul Stevens: But wouldn’t be -- what would be wrong with that?

People could avoid that consequence by making a will too.

How is that different from saying you cut out the illegitimate?

Why could not you have this same kind of statute on racial grounds, in other words?

Mr. Miles N. Beermann: Well, because I do not think that this kind of a statute is something that the legislature -- I do not think they have the right to pass the statute.

I think that statute would be clearly unconstitutional, denial of equal protection.

Let us take -- we can carry the hypothesis a little further.

If you have a white man married to a black woman then if he one that die, and he could not die intestate then because under your hypothetical situation, his money would not go to his children assuming that they would be deemed black.

So that he would ask to make a will in order to leave the money to his children.

Justice Thurgood Marshall: You started out saying that illegitimate children were not a suspect class.

Mr. Miles N. Beermann: I do not think they are, Your Honor.

Justice Thurgood Marshall: Well, is that the answer to it all?

Mr. Miles N. Beermann: I think that is the answer to it.

I think that there has been no decision --

Justice Thurgood Marshall: Please do not forget it.

Mr. Miles N. Beermann: Sorry, your Honor, I won’t.

Chief Justice Warren E. Burger: Well another element was introduced in the hypothetical question as I understood it, the legitimacy is not suspect but a racial discriminatory statute would be quite suspect.

Mr. Miles N. Beermann: That is correct, and that is what would make the statute and Justice Stevens’ hypothetical clearly unconstitutional.

Chief Justice Warren E. Burger: Well, clearly suspect at this contextual --

Mr. Miles N. Beermann: At the least, at the least, and then I do not think that there could be any rational or reasonable purpose of the State in passing such a statute.

The other things that I wanted to point out, and I think, Mr. Chief Justice, you have alluded to some of them, is that the decedent could change the so-called statutory will by a number of methods.

He could execute a written will, he could create a joint tenancy, he could designate the beneficiary of a life insurance policy, he could create a trust, he could make a gift.

There is a number of things he could do either under Illinois statute or by law, by federal law.

He could have -- and as I have already stated, he could have left the entire estate to this child with exclusion of everyone.

Justice Thurgood Marshall: You are talking about a man whose net worth is less than $1500 had all those options?

Mr. Miles N. Beermann: Theoretically, he had all those options.

Justice Thurgood Marshall: Oh, theoretically.

Mr. Miles N. Beermann: I do not think there is any question about it.

I do not know that we are talking in a limited fashion about Sherman Gordon, the decedent in this case.

Justice Thurgood Marshall: Well, I am. (Inaudible)

Mr. Miles N. Beermann: In reality, Your Honor, I would say you are probably correct that Sherman Gordon, although he might have some life insurance.

He might have had a life insurance policy from his job, and there are a number of things that he might have had.

In today’s society most --

Justice Thurgood Marshall: But you are talking about all this great legal advice he had that he could get.

I wonder where could he get it from.

Mr. Miles N. Beermann: Well I think he could have gotten it at a number of places.

In Chicago there are all types of --

Justice Thurgood Marshall: Is there any reason that he ever thought of a will?

A man with $1500?

Mr. Miles N. Beermann: Well…

Justice Thurgood Marshall: How much do you charge for drawing the will of a driver, about $1500?

Mr. Miles N. Beermann: Well, a will of this type would probably cost about $25 to $50.

Justice Thurgood Marshall: Really! Well, how many do you get like that?

Mr. Miles N. Beermann: Well, I suppose --

Justice Thurgood Marshall: I mean, why not be realistic.

A man with that much income, about to get his head blown off.

I mean he is not the type of person who gets in all these legal niceties.

Mr. Miles N. Beermann: I do not believe, Your Honor though that we can set up a standard based on this one particular man.

Knowing we are talking about this one particular man, I know that your question alludes to him, and you have stated quite succinctly to me that you are talking about him.

But if we start going on a case-to-case method of who is the man in this case, could he have made a will, and if counsel was right and all of those people were in that position, I just do not agree with that.

There are legal poverty offices all over the City of Chicago.

Counsel is a member of one of them.

Probably, Sherman Gordon could have made a will and not been charged any fee at all by going into Counsel’s office.

So that I think that, that theory --

Justice Thurgood Marshall: It was not (Inaudible)

Mr. Miles N. Beermann: 1974, I believe.

Justice Thurgood Marshall: Can all the (Inaudible)?

Mr. Miles N. Beermann: Oh, yes.

I think we had even more of them than we do now, Your Honor.

Chief Justice Warren E. Burger: I suppose a $25 or $50 will would not be a burden on the legal aid, if they are willing to come all the way to Washington.

Mr. Miles N. Beermann: Mr. Chief Justice, I think that it is like about a half a paragraph of a will.

All he had to do was start out with a normal opening paragraph and state that he leaves everything that he owns to his daughter, and name her, and have three witnesses and that would have been the end of it.

He could have probably gotten that on half a page.

So, maybe $25 is too much.

One of the --

Chief Justice Warren E. Burger: Of course, this case should be resolved whether it was $1,500, $15,000 or a-million-and-a-half.

The principles are the same, are they not?

Mr. Miles N. Beermann: I am perfect agreeing with that.

That is the whole point, I am sure that if the Court was convinced that we were just talking about this one case, and it was only $1,500 involved, and that whatever the Court did in this case did not transcend these particular facts, that we would not be here arguing the case.

Another recognized purpose of the statute is the prevention of spurious claims.

The Court has recognized that purpose in many of its decisions, most notably in the Jimenez case decided in 1974.

The Illinois Supreme Court in the Karas case alluded to the grandfather type example where a grandfather dies and he had one child, a son, who pre-deceased him by let us say 15 or 20 years.

The grandmother, the wife of the present decedent, is left surviving and she would be entitled to his entire estate by the laws of intestacy.

Now, some person comes along claiming to be the illegitimate child of the son who has been dead for 20 years and there is really no way to disprove the paternity.

On the other hand, the child of course has a tough time proving it but it puts this widow of the grandfather in an awfully tough position.

Unknown Speaker: I suppose you do not know why the Karas case did not come here.

That was a much larger estate.

Mr. Miles N. Beermann: Well, it’s not only that, there were two cases there Your Honor, and they both stopped there at the Illinois Supreme Court.

I am sorry but I do not know why they did not come here.

Justice Thurgood Marshall: It is our understanding you are talking about the intestate law of Illinois.

Mr. Miles N. Beermann: Yes Your Honor.

Justice Thurgood Marshall: And the purpose is, as I understand, to take care of estates where there is no will.

Mr. Miles N. Beermann: That is correct Your Honor.

Justice Thurgood Marshall: Well, how is it that defense do it that you can make a will to get around it?

Mr. Miles N. Beermann: Well, because we are talking about the narrow issue Your Honor.

The laws of intestacy take up two or three pages in the Illinois statutes.

The thing that we are talking about takes up about two sentences, and the theory being that if you accept the theory of a statutory will, that the man who dies intestate is presumed to know the law, and is presumed to adopt the laws of intestacy as his so-called statutory will, then he knows he has got an illegitimate child and the illegitimate child cannot recover.

He knows, for example, as Sherman Gordon can be presumed to know in this case that if he had a mother and some brothers -- he had a mother and father and some brothers and sisters as I recall -- the mother and father and brothers and sisters would share equally.

Now he further knows that by writing a will, he could have disinherited all of those people and left his entire estate to the little girl.

Justice Thurgood Marshall: So that it is an adequate defense to any unconstitutionality of the state law the fact that a will could have corrected it.

Mr. Miles N. Beermann: I am not accepting the theory that the state law is unconstitutional.

Justice Thurgood Marshall: It is -- This provision can be corrected by a will.

That is your position?

Mr. Miles N. Beermann: Yes, sir.

Justice Thurgood Marshall: And that is the reason that it is constitutional?

Mr. Miles N. Beermann: No, that is one of the reasons.

Justice Thurgood Marshall: But is it constitutional or not?

Mr. Miles N. Beermann: Yes, I believe it is constitutional.

Justice Thurgood Marshall: But it can be corrected by a will.

Mr. Miles N. Beermann: The situation can be changed by a will.

I do not accept the fact that there is anything to correct.

That is my point.

Justice John Paul Stevens: Mr. Beermann, the claim, as I understand it, is that you have thousands and thousands and thousands of people who die intestate.

All of them could have made a will but you have a large portion of the population that die intestate.

And that the children of those intestate decedents are of two kinds: some are legitimate and some are illegitimate.

Of course all men could have made a will and left his property as he wanted to.

But looking at it solely from the point of view of the surviving child, what is the justification in terms of the child for treating the illegitimate differently from the illegitimate?

Mr. Miles N. Beermann: Well --

Justice Potter Stewart: First, one justification you gave was that you want to prevent spurious claims, but does that apply when there is a judicial determination that there is a relationship here?

That is one.

Look at it from the point of view of the child. How does your idea about making a will have any merit?

Mr. Miles N. Beermann: Well, for one thing, the fact that the child might be left something, from the child’s standpoint it certainly will not legitimate the child.

I think that from the child’s standpoint, it probably does not help, except it does not legitimate him by becoming an heir of his father, and by the same token, I think that you were then getting into the realm of where do you stop.

I mean do you then pass a law that says that the illegitimate child has to recover because --

Justice John Paul Stevens: The claim is that they should be treated the same as a legitimate child is treated.

There is no claim here that they would take a preference to a widow or anything like that.

Mr. Miles N. Beermann: Society does not treat them that way in almost every respect.

Unfortunately that is the case and I think that the Illinois Legislature has recognized that and I think that the Illinois Legislature has announced the public policy of the State, that they will not be treated the same because --

Justice John Paul Stevens: Because over the years society has treated illegitimates as a less desirable class of people, the legislature can continue to do so.

That is your argument as I see it.

Mr. Miles N. Beermann: I do not think it is exactly that, Mr. Justice Stevens.

I think it is because --

Justice John Paul Stevens: A less worthy group of people.

Mr. Miles N. Beermann: No, I do not think they look at it from the standpoint of the illegitimates.

I think they look at it from the standpoint of the parents, and that the parents -- the legislature in the State of Illinois, acting through its General Assembly, wants the parents to not be involved in illicit relationships, and so that they do everything that they can.

Justice John Paul Stevens: What they say to the father is that if you are involved in an illicit relationship, you do not have to worry about your property going to the child of that illicit relationship.

Mr. Miles N. Beermann: Because that child might not be, or the legislature presumes that the people of the State do not intend that their child is the natural object of the intestate or the intestate man’s bounty.

Justice John Paul Stevens: In other words, you say to the father you can do this and you do not have to worry about the consequences.

Mr. Miles N. Beermann: Well, I do not think that is exactly right because there are (voice overlap).

Exactly, and which he was in this case, and he was --

Justice John Paul Stevens: You do not have to worry about this particular consequence at least.

Mr. Miles N. Beermann: This particular consequence, correct.

It is our contention --

Justice Potter Stewart: The common laws, I remember having learned it many years ago, was that an illegitimate child was nobody’s child.

He did not inherit from the mother or father, nullius filius.

And so to the extent that Illinois does allow intestate inheritance from the mother has ameliorated the harshness of the common law rule.

Mr. Miles N. Beermann: That has been on the books for many years in Illinois, this particular rule.

That is correct Your Honor.

The other point we want to make on this issue is that it is our contention that this Court’s decision in Labine v. Vincent controls, and it especially controls because in this case and under the facts of this situation, the father here could have done more for this child than could the father in Labine.

For example in Labine, the child must be acknowledged in order to take under the father’s will.

That is one thing that we have not heard yet.

You just could not make a will in Labine and leave your estate to the child under Louisiana law, which is just as Justice Marshall points out is entirely different from the other 49 states.

Then even if the child is acknowledged and you make a will leaving him part of your estate, you can only leave him either one-fourth or one-third of the estate, and that is if there are no surviving legitimate children or their heirs.

While in Illinois, Illinois has ameliorated the rule as you point out, Justice Stewart, a filius nullius, because if we made the rule he could leave the child everything.

Also, apparently in Louisiana, acknowledgement is a condition precedent to the child’s right to claim support from the father.

That is not true on Illinois, as is evident in this case because when a paternity suit is brought, the defendant does not have to plead guilty.

He can put up a defense and if the court finds that he is guilty, then he never has to acknowledge the fact that he is the father.

He is adjudicated the father and he is made to support the child.

Also in Louisiana, an acknowledged child can inherit from the father intestate if the father has no heirs or collateral or linear, to the exclusion only of the State.

Of course in Illinois, an illegitimate can never inherit intestate from the father.

That is the main difference.

The other striking point is that in Louisiana, legitimate children have a right of forced heirship in their father’s estate, whereas in Illinois, as I pointed out, legitimate children do not have that right.

So that it is our contention that Labine would control even more in this case than it did on the facts of its own case.

I would like to allude to the sex discrimination issue although counsel has not talked about it.

We have serious doubt that it is even properly before the Court.

I think we briefed all that.

I just would like to point out one other thing that when the notice of appeal was originally filed in this case -- and I am sorry that this is not in my brief, but I hope that Your Honors will indulge me.

When the notice of appeal was originally filed in this case, from the order of the Probate Court of county declaring the heirship, only the mother was named as an appellant in only a representative capacity.

She was named as Jessie Trimble as the mother and next friend of the child, Deta Mona Trimble.

So that we do not believe she is a proper appellant.

Now the record got pretty muddied up because what happened after that was, when they made their motion under Illinois Supreme Court Rule 302(b) for a direct appeal to the Illinois Supreme Court, thus bypassing the Appellate Court, you do that in matters of importance that require proper termination.

All of a sudden, she became an appellant and there is nothing in the record, nobody objected to it I have to admit that, but she suddenly became an appellant.

Then she also became an appellant in a notice of appeal to this Court and in her brief amicus curiae in the Karas case, she as named as a party.

But the fact is that under Illinois Supreme Court Rule 301, the notice of appeal is a jurisdictional stock and I do not think that anybody can waive it by not arguing it and I do not think anybody can cure it.

So I do not really believe that she is a proper party in this Court.

Unknown Speaker: Is this a suggestion that we do not have jurisdiction over the appeal?

Mr. Miles N. Beermann: Oh no, it is of this issue, Your Honor.

The sex discrimination issue, because our argument is that in the sex discrimination issue, it cannot really apply, not into the merits of it, it cannot really apply to the illegitimate because there is no discrimination based on the sex of the illegitimate.

Male illegitimates and female illegitimates are treated the same way.

But their argument is that the mother, a female person, is being discriminated against on the basis of her sex and treated differently than a male person, because the female person have to -- she does have the -- their theory is this: That she does not have the assistance of the fact that the illegitimate could inherit from the father and easing her burden of supporting the illegitimate.

We do not agree with this contention.

I think it is really getting far-fetched.

But our point is we are not quite sure based on this record, although we did brief it on the merits that, that issue really is before the Court because of the jurisdiction.

Justice Thurgood Marshall: How can we pass on the rules of the Supreme Court of Illinois?

Is that not the best court to pass on there?

Mr. Miles N. Beermann: I would say you are correct Your Honor.

Justice Thurgood Marshall: And you deliberately bypassed them.

Mr. Miles N. Beermann: No, I did not bypass, they bypassed.

Justice Thurgood Marshall: But you did not raise it.

Mr. Miles N. Beermann: I was not in the case then Your Honor.

I hate to give you that answer but let me tell you what happened.

Chief Justice Warren E. Burger: If it is jurisdictional, it does not make any difference whether you were in the case or not.

Mr. Miles N. Beermann: Well, that is my point.

I want you to understand something because you just talked about it earlier.

Because of the size of the estate, nobody was defending this case in the Illinois courts.

It never was defended in the Illinois Supreme Court.

There was oral argument in the Illinois Supreme Court.

It was a unilateral argument.

Only the appellants in this case argued in the Illinois Supreme Court.

They had a very short argument and it is in the record that the Chief Justice cut short their argument on the basis that the case was controlled by the Karas opinion.

I did not get into the case until it came to this Court.

It is easy for me to say now, if I was in the case, I would have raised these points.

The point is --

Justice John Paul Stevens: But Mr. Beermann isn’t your point -- let me see if I state it, but I want to be sure I understand it correctly, that to the extent that you opponent claims a gender-based discrimination, the fact that she cannot inherit from her father but she might have been able to inherit from her mother.

She may not make the argument that her mother could make.

That is what you are saying?

Mr. Miles N. Beermann: That is correct.

Justice John Paul Stevens: It may be that she has standing to make the argument anyway, but you are just saying she cannot make what ever argument her mother could make.

So she had a standing question, really.

Mr. Miles N. Beermann: The way they are making the argument --

Justice John Paul Stevens: She cannot argue the impact of the statute on her mother.

That is what you are saying.

Mr. Miles N. Beermann: They are making the argument through the mouth of the mother and not her father.

Justice John Paul Stevens: Yeah, I see.

You are saying the mother is not a party in her own right, but it would not make any difference if we thought the child had a standing to assert this claim anyway.

Mr. Miles N. Beermann: That is right.

Well, if the child has the standing to assert the claim, then of course it could be asserted because I make no claim that the child is an improper party.

Unknown Speaker: As the parties here, Deta is the illegitimate child.

Mr. Miles N. Beermann: That is correct Your Honor.

Unknown Speaker: Jessie is the mother, and Joseph Roosevelt Gordon is the mother’s father, is that it?

Mr. Miles N. Beermann: No, he is the father of the decedent.

Unknown Speaker: Father of the decedent.

Mr. Miles N. Beermann: The natural father of the decedent.

I represent that the decedent’s mother, Ethel May King, the other people, the father and the brothers and sisters, have seen fit not to take part in these proceedings.

Unknown Speaker: But Joseph Gordon is one, a member of the class, another member of which you represent.

Mr. Miles N. Beermann: Right, that is correct.

So that without belaboring the point, we still do not believe that the sex discrimination is properly before the Court and we also state that there is a necessary distinction here that was alluded to before in the other argument that there is a biological difference between the mothers and the fathers.

And as counsel stated, maternity is almost never an issue, I cannot conceive of when it would ever be an issue unless you had a kidnapping of a child out of the hospital nursery.

The mother is always present when the child is born.

So our contention is that the mother is not being discriminated against and the child, of course, is not being discriminated against because of her sex, because male and female legitimates are treated the same.

Thank you very much.

Chief Justice Warren E. Burger: Very well.

Do you have anything further, Mr. Weill?

Rebuttal of James D. Weill

Mr. James D. Weill: Just one point, Your Honor.

I believe the standing issues are fully treated in the briefs and I just would like to point out that most of the arguments that opposing counsel has made have been implicitly or explicitly rejected by this Court’s unanimous decision in Reed v. Reed.

In Reed, a case involving the estate of less than $1000 by the way, this Court, where there was sex discrimination in the appointment of administrators in intestate estates, this Court rejected the constitutionality of that statute.

Even though it recognized that it eased the Probate Court’s administrative burden or judicial burden, and even though most of those sexually discriminatory appointments could have been altered by a will of the decedent.

The Reed case is structured very much the way this case is, and this Court unanimously rejected the same structure in a similar context.

Sex, like illegitimacy, has not been treated as a suspect class by a majority of the Court, but also there is many of the same traditional indicia and we just call that to the Court’s attention.

Thank you.

Unknown Speaker: Mr. Weill, are you familiar with the expression “Illegitimi non carborundum”?

Mr. James D. Weill: Yes.

Unknown Speaker: Do you think it has nay application to this case?

Mr. James D. Weill: No, I do not.

Unknown Speaker: I was going to ask you, your opponent argued rather forcefully that Labine is not as strong a case as in fact as this.

Do you want to respond to that at all?

I think it’s really critical.

Mr. James D. Weill: Well, I believe that this case is clearly stronger than Labine on the facts.

First, there was an adjudication here of the father’s paternity for all purposes and Illinois has said that this is this father’s child or was this father’s child.

Now the Illinois Supreme Court turns around and says, but there are proof problems.

There just are no proof problems in this case at all.

It is stronger than Labine in that sense.

Secondly, the Labine scheme, as I mentioned, was inclusive of illegitimate children.

This Court has consistently struck down total exclusions of illegitimate children from any statutory scheme in the last eight years.

The two partial exceptions have been Labine and Lucas.

In both of those cases, there were substantial benefits to the class of illegitimate children.

Labine may not have been as carefully tuned as Lucas was, but it was significantly inclusive.

Those are just the two major points I make.

Justice Potter Stewart: I thought the point that your brother made was that in Louisiana, the father was not free to make a will to designate the illegitimate as a beneficiary without doing something further, and in Illinois by contrast, the father was solely free simply by naming him as a legatee in the will to make her one?

Mr. James D. Weill: On the facts of the case, the father in Labine and the sub-class of fathers in Labine were free to make wills because there were acknowledgements there.

Justice Potter Stewart: They had to acknowledge and then make a will.

They could not make a will and name the illegitimate children legatee unless they acknowledged.

Mr. James D. Weill: Right, but then --

Justice Potter Stewart: In Illinois, by contrast, they are free to do so with or without acknowledgement.

I think that is the point he made and you would agree with that?

Mr. James D. Weill: They are free to do in Illinois as a matter of fact, yes.

Thank You.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Fiallo v. Bell - Oral Argument

Sun, 08 Aug 2010 17:07:41 +0000

Case:

Fiallo v. Bell

Media File:

75-6297_19761207-argument.mp3

Related Transcript:

75-6297_19761207-argument.xml

Transcript:

Argument of Janet M. Calvo

Chief Justice Warren E. Burger: We’ll hear arguments next in number 6297, Fiallo against Bell.

Ms. Calvo you may proceed whenever you’re ready.

Ms Janet M. Calvo: Mr. Chief Justice and may it please the Court.

This case is in appeal --

Chief Justice Warren E. Burger: Will you draw that microphone a little closer to you.

There.

And perhaps raise the lectern a little.

That will get you in better communication with the Court.

Very well.

Ms Janet M. Calvo: Thank you.

This case is in appeal from the judgment of a divided three-judge court in the Eastern District of New York.

The challenge statutes in this case, afford statutory right to United States citizen parents which makes it possible for them to live in this country with their alien children.

It does so by allowing the parent to request an exemption of his alien child from restrictive numerical quota and labor certification requirements.

As fully explained in our reply brief, the recent amendments to the Immigration Act now the scope of this case respectively to the issue of the United States citizen parent seeking the classification of his alien child as an immediate relative and thus exempt from labor certification and quota requirements.

While other similarly situated parents made proof their family relationship with their children and thereby obtain their entry into the United States.

Citizen fathers of illegitimate children are completely precluded from proving their parent-child relationship.

Thus, Cleophus Warner, even though he has formally acknowledged his child always supported his child, lives with his child, loves and cares for his child is completely unable to prove his relationship with his child and to achieve his goal of living with his child in this country.

This case is unique one in the immigration law context on several grounds.

First and foremost, this case involves the rights of citizens not of aliens.

The challenge statutes were designed to achieve the benevolent result of allowing a United States citizen parent to live together with his child.

But the statute discriminates against some United State citizen parents, the fathers of illegitimate children.

In doing so, the statute infringe on these citizens fundamental interests in their parent-child relationship and as a possible consequence the incidents of their citizenship.

Mr. Warner is put to an impossible choice.

He may give up his desire to care for and live with his child and be able to live in this country, the country of his citizenship.

Chief Justice Warren E. Burger: Well, is that an impossible choice?

Can’t many American citizens live in other countries so isn’t it impossible or rather strong word to apply to it?

Ms Janet M. Calvo: For Mr. Warner, it is in a serious -- by impossible, I mean very serious infringement on his choice to live in the United States, the country of his citizenship.

In fact his citizenship was a very hard earned one as Mr. Warner is a naturalized citizen of the United States.

He chooses to live in this country and he has made that know by becoming a naturalized citizen and living here for many years.

Another factor which makes this case a unique immigration case is that the legislative history discloses the total absence of any foreign policy concerns or a Congressional choice to exclude or expel a group of aliens who are perceived to post a threat to our national security or to our general welfare.

Illegitimate children are not an excludable class under the statute and therefore there is no determination that they are any danger to us.

These factors demonstrate that this case is fundamentally different from any of those prior immigration cases upon which the government relies.

There is no question but that the actual and expressed Congressional purpose in passing the challenged statute was to allow citizen parents to choose to live with their alien children in this country.

But the statute presumes that a citizen father will never have close ties with his alien illegitimate child and will never want to choose to live with him in the United States.

Unknown Speaker: How can -- I feel a little difficult to understand the argument in this case and in the other cases that it was the -- in view of the fact that Congress did what it did, how can you argue that Congress’ purpose was to do something else?

This is not a normal argument in this case, we get it in good many cases and I find it always very difficult to follow.

Ms Janet M. Calvo: I think there is -- maybe the difference is between classification and purpose.

There is nothing in the legislative history which evidences -- any other intention as an overriding purpose on behalf of Congress other than allowing parents to live with their children.

Of course to the extent that a certain group is left out at the classification system, they therefore intended it by omission to leave them out.

Unknown Speaker: Unless, this is really inadvertent, this statute reflects the intent and purpose of Congress, does it not?

Ms Janet M. Calvo: Well I --

Unknown Speaker: Unless, it was accidental or inadvertent that I don’t understand that to be any part of your argument.

Ms Janet M. Calvo: No.

We feel that if in consideration of the overriding purpose of Congress, if they new that a man like Mr. Warner who has acknowledged his child and always cared for his child and lives with his child would be totally barred from proving his relationship with his child and completely barred from living with his child.

They would have intended that result because what Congress was basically concerned with was allowing citizen parents to be united with their children in the United States.

Unknown Speaker: But that isn’t the way we usually construe a statute as it to say that if Congress just had known that this precise language that they had adopted had this effect on this particular man, they wouldn’t have passed on those terms?

Ms Janet M. Calvo: Pardon me I didn’t understand the question.

Unknown Speaker: Well, you’re suggesting that because you think that Congress if it had seen the effect of the statute on your client would have passed a different statute that we ought to construe it in a different way?

Ms Janet M. Calvo: No, I am not arguing that, I am just arguing that with regard to the overwriting purpose of Congress the classifications has drawn are irrational and don’t serve that purpose.

Unknown Speaker: What do you mean when you are talking about the overriding purpose of Congress?

Surely there’s no place where Congressional purpose is better found than in the language Congress has shown -- chosen to enact into a statute, is there?

Ms Janet M. Calvo: I think that there is a confusion between classification and purpose.

You could say in a case in which a legislature said that we are building a school for white children, we do not want black children to attend that.

That basically fulfilled their purpose because that was the way the classification was drawn.

What we are saying is that from the legislative history, Congress specifically stated that by creating a statute they were intending to promote the family unity of the United States citizen and we are further contending that the classification which leaves out the fathers of illegitimate children does not promote family unity and in fact --

Unknown Speaker: Well but isn’t the logical inference from that that Congress did not intend to promote family unity with respect to that particular class of individuals since it expressly excluded them.

Ms Janet M. Calvo: But you could say that about any statute.

Unknown Speaker: Well then we usually do.

Ms Janet M. Calvo: I think there is a confusion between classification and purpose, I mean the -- I think that in its recent cases this Court has looked very closely at what Congress said itself was doing in its legislative history and that --

Unknown Speaker: Well you think that’s better evidence of what Congress intended by the legislation and the language that it chose?

Ms Janet M. Calvo: I think that there is a confusion with intent and purpose.

I’m not arguing that there was any -- that it is any other than the classification leaves out fathers of illegitimate children.

Chief Justice Warren E. Burger: Well, at least Ms. Calvo even on your theory Congress went part of the way.

Ms Janet M. Calvo: Yes it did go part of the way.

It did go part of the way by presuming that parents similarly situated to a citizen father of an illegitimate children -- of an illegitimate child who always have close ties with their children.

For example under the stepparent provision of the law, if Mr. Warner married, he would be presumed to have close ties with his wife’s illegitimate child.

Ties that he is presumed never to have with his own child, and on the other hand, his wife would be presumed to have close ties with Serge his illegitimate child, ties that the father himself is presumed never to have.

This is similarly true under other provisions of the statute, a father who fortuitously lived in a place where an action on his -- by himself, he was capable of legitimating his child.

For example, by a simple acknowledgment would be presumed to always have close ties with the child while a man like Mr. Warner who has not only acknowledged the child but always supported the child and lives with the child because he doesn’t happen to live in such a place is completely precluded from even proving his parent-child relationship.

Also an adoptive parent, a prospective adoptive parent and the mother of an illegitimate child under the statute are presumed to always have close ties with their children while the father of an illegitimate child no matter how close his ties maybe in reality is totally barred from proving his close ties and its presumed not to have this close ties.

Basically, what we are contesting is this total barring under the statute, especially in this case where the fundamental interest of a parent in the care and companionship of his child is involved.

Mr. Warner’s case illustrates it, he is -- because of the abandonment of the mother, the only parent this child has and he is willing to take responsibility for that child as he always has and wishes to live with the child in this country in order to do so.

Unknown Speaker: How old is Serge now?

Ms Janet M. Calvo: Now.

I think he’s about 16.

He was much younger of course when the case began.

It’s been around for quite a long time.

The Government attempts to defend the discrimination in this case on the ground of purported administrative inconvenience in the prevention of spurious claims.

There where absolutely no Congressional expression that vis-à-vis unwed fathers, they were concerned about administrative inconvenience.

But in any event the challenge potential -- the alleged potential for his spurious claims does not justify the discrimination in this case.

This is because any potential for his spurious claims in the case of a father of an illegitimate child is no different than the potential for spurious claims for many other parents who are covered by the challenge statutes.

For example, under the stepparent provision, the immigration and councilor officials would have to make the same exact determination as they would have to make in this case, the paternity of an illegitimate child.

Practically, if I may point out, they already have routine methods of doing so.

They have a system setup, they have forms, they know what kind of proof they want to prove these relationships.

We do not contest or contend with any rigorous burdens of proof that are imposed.

What we seek in this case is only the opportunity of the unwed father of an illegitimate child to prove his relationship by whatever proof the immigration or councilor officials impose upon him.

It is clear under the law that the burden of proof lies with the parent of seeking the benefit for his child.

In summary, and I would like to reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Ms Janet M. Calvo: It cannot be over emphasized that what is involved here is the rights of citizens who, like Mr. Warner have always acknowledged and supported in take good care of their children and who wish only to be treated like other parents and in giving an opportunity to prove this relationship.

Unknown Speaker: I suppose, Ms. Calvo, the Government disagrees with your focus.

It puts the focus on the child, doesn’t it, rather than citizen parent?

Ms Janet M. Calvo: Yes that is an entirely erroneous focus Your Honor.

If the parent does not request that the child entered the States, the child does not enter the States that’s by statute at Section 204 of the Immigration and Nationality Act.

The benefit is given only to the citizen parent.

The child cannot claim entry under the challenged statutes merely because he is related to a citizen.

The citizen has to specifically request that this be done on behalf of his child.

The citizen also has to further agree that he will take care of the child, support the child.

He must reveal his assets, his -- and he must meet specific limitations which demonstrate that he is capable and willing to support the child while the child is in the United States.

Unknown Speaker: Incidentally, suppose that it weren’t Mr. Warner we were speaking of but his parents who lived here and were citizens.

Would they be in a position under the Act to bring in Serge to stay here?

Ms Janet M. Calvo: The grandparents?

Unknown Speaker: Yes.

Ms Janet M. Calvo: No, Your Honor.

The special provisions of the Act relate to parents of children.

Unknown Speaker: So that siblings also would not be --

Ms Janet M. Calvo: No, this is a very narrow situation.

It’s a situation that deals only with the parent-child relationship.

Unknown Speaker: Ms. Calvo, it occurs to me that when you emphasize that the discrimination is between parents of illegitimate children on the one hand and parents of legitimate children on the other, you really are not entitled to rely on the cases that rely on the unfairness of visiting the sins of the parents on their children.

Do you understand my point?

Ms Janet M. Calvo: I believe that there are cases in which illegitimacy discrimination has also and I believe it was in the companion case to Levi, the Glona case.

The illegitimacy discrimination was against the parent as well.

Here there is -- the party is the parent and the parent is discriminated against in several different ways in comparison with several other similarly situated parents.

Unknown Speaker: It’s on account of his own conduct whereas in the case we just heard before, the child was being discriminated against on the count of his natural parents conduct.

Ms Janet M. Calvo: That’s true.

If you have no further questions, I’d like to reserve the rest of my time.

Chief Justice Warren E. Burger: Very well, Ms. Calvo.

Ms Janet M. Calvo: Thank you.

Chief Justice Warren E. Burger: General Tyler.

Argument of Harold R. Tyler, Jr.

Mr. Harold R. Tyler, Jr.: Mr. Chief Justice, and may it please the Court.

I think it is in a common place of course in the -- as a backdrop to this case that Congress need not allow the admission of any aliens much less need Congress grant immigration preference to any aliens.

The core of this case of course has to do with the latter that is with preferences which Congress attempted to achieve by classifications adopted first in 1952 and most importantly for this case of 1957 and Section 101 (b) (1) and (2).

Very briefly, the Government complains that these are classifications which Congress has the primary jurisdiction to adopt.

They are rational and they are related to illegitimate immigration purpose unless they do not offend the Due Process Clause.

Preliminarily, I might say that there is certain things which the Government contends are really not involved in this case though one might assume so if you were to listen to some of our arguments.

I think as the plaintiffs concede, although I am not certain, but I think Ms. Calvo said this, this is not a case where illegitimacy standing along or fathering an illegitimate son or daughter standing alone works in exclusion or a bar under the statute.

Nor as to the case where classification is simply a routine distinction or a simplistic distinction, if you will, between man and the one hand and females on the other hand, and finally, I might note this is not a case as plaintiffs parent still argue where the preference provisions were designed to unify all families.

We contend rather that the apparent intent of Congress if you just look at the plain language of the statute was to reunify families to the extent rationally feasible where there have been separations particularly caused by our immigration laws or some of them and especially where those separations were most likely to cause unusual hardship.

In short, we urge that Congress Act did not haphazardly but discreetly and with care.

For example, as this already been brought out, Congress decided that children legitimate or otherwise over 21 or married get no preference at all.

Congress similarly decided that children who have been legitimate after they are 18 years of age get no preference.

Similarly, Congress decided that children adopted after they are 14 years of age get no preference.

They decided that stepchildren made such by a marriage after they are 18 get no preference for admission to these shores.

And of course for this case, as the Court well knows preferences by virtue of the definition of parent and child go only to the mother and her illegitimate child and not to the father.

Now, obviously I assume once we look at it with reasonable care we have to accept that if nothing else is clear a mother has once been re -- has once been united with her child.

But, surely, Congress had in mind that fathers necessarily never were united.

And I think this is a legitimate concern particularly where you are dealing with a father who has never chosen to legitimate his child prior to some point where an attempt can be made to petition for entry.

Now, there can be no doubt about it as the plaintiffs argue and as the Court knows what Congress did here was setup a presumption but we urge that it is a presumption based upon a rational empirical judgment or classification.

Furthermore, we urge that Congress quite obviously made this judgment or cut on the basis of difficulties approved for paternity.

And there is no lawyer where the smidgen of experience who doesn’t know what the difficulties are proof of paternity I assume, and of course the likelihood of spurious claims as Ms. Calvo has pointed out.

Now, we do not urge here that just because this is an immigration case or it’s a case arising under the INA that this Court has no right to look at the case, of course it does.

What we do urge is that the plaintiffs have the burden of proof of showing that the classification or cut by Congress in deciding who was to be preferred and who is not to be preferred by defining children and parents that this classification or cut is irrational.

They fail in this burden we submit for several reasons.

First, as it has been pointed out to you early and often this afternoon alone by others in the Illinois case, illegitimacy has never been held squarely by this Court to be what is called a suspect classification, for this reason and because we are concerned with the admission of aliens, a matter obviously or primary jurisdiction of the legislature, strict judicial scrutiny is neither necessary nor appropriate.

As the Court has held recently in domestic cases, drawing of lines is peculiarly a legislative task and it’s a task where perfection is neither possible nor necessary.

Now this is the rule of course that has been annunciated for cases involving citizens who have the full panoply of constitutional protection.

A fortiori, we would urge it is probably the outermost limit that one could reasonably ask for an alien who is seeking preference for admission to our country.

Let me conclude if I may with two points.

As if almost to recognize their difficulties in the main issues, plaintiff seem to resort to the claim that the parent and child definitions herein issue somehow invidiously impact upon the constitutional right of a citizen.

Apparently, that is a right which I guess they call as I read their brief, a right to a unified family.

Well, I have two arguments to raise against that if the Court please.

First of all, I am not sure that this is a right which has been recognized in the Constitution and perhaps in a more specialized argument.

It seems to me that one reason we urge upon the Court consideration of the fairly recent case Kleindienst versus Mandel which to be sure involved First Amendment rights of a citizen and an alien’s context to and extent simply because Professor Mandel, as you remember, was seeking to be admitted to speak here and to converse with academic people and other who wanted to hear him.

And there as I understand this Court it recognized that if the constitutional rights of citizens were to prevail in cases which involve the decision by the legislature or the executive under delegation by the legislature to exclude or keep out aliens, then the Congressional power to determine such exclusion which we all I think concede exist would really work out to be a note.

And finally, if it may please the Court, I notice that an oral argument as in their brief plaintiffs, once again contend that somehow this case presents no foreign policy issues or choices.

In other words, in 1957 as I understand the argument, Congress didn’t sit down and then someway either in the actual statutory language or in some thing that we all are trained to call legislative history, utterances that this is a great matter of foreign policy or some foreign policy choices.

I thought that argument had been put to rest by Mr. Justice Jackson 24 years ago in Harisiades when he pointed out that when Congress makes these cuts and when Congress determines who is excluded and who is admitted and then the reasons why that that kind of a cut or that kind of classification by necessity goes to the heart of our relation with other governments.

This is a good illustration as Ms. Calvo has properly stated.

One of the problems here is that a good deal depends upon the laws of other jurisdictions who gets admitted under the statute or other sections of the Immigration and National Act.

Unknown Speaker: Well, General Tyler, you say in your brief that the basis for this action in not giving the preference to an illegitimate child of a father -- of an unwed father is that the child is among the class or that two -- or that the classification -- that the father and the child are members of the class among whom its unlikely, there would be any real close identification and it’s on this basis that the legislature at Congress decided which families to try to reunify which family is not.

Now, why -- I suppose you would concede that there would be enough of that -- could many father child relationships even though the child is illegitimate where there has been a very close -- very close.

Mr. Harold R. Tyler, Jr.: Oh!

Yes, we have.

Unknown Speaker: But why not let them prove it?

Mr. Harold R. Tyler, Jr.: Well, the difficulty is as I said earlier.

Congress apparently was relying on two propositions which even the plaintiffs sociological and statistical studies which they mention in their briefs don’t really dispose of this, I see it.

First of all even the studies of a recent advantage referred to by them and referred to by Judge Weinstein in his dissent show that the overwhelming number of families, the natural relationship as Congress obviously opted for here is with the mother.

But you’re quite right, we can’t claim and perhaps the Cleophus Warner family situation is a good illustration.

There will be because of these classifications or cuts as I somewhat simplistically call the. Situations which target the heartstrings of anyone of any --

Unknown Speaker: Well, suppose the person seeking admission were the person for whom the parent seeks admission for alleges in a piece of paper certain facts that would indicate to anybody, there has been a close relationship down to the years.

And suppose the Government in answering that knew what the facts when said “Yes, we agree.”

Now the law would still exclude the child, the illegitimate child and why not let them prove it.

I mean why not?

Mr. Harold R. Tyler, Jr.: Because Congress --

Unknown Speaker: Why doesn’t the Government want to sort them out one after an individual case rather than it is in a group?

Mr. Harold R. Tyler, Jr.: Well, I would urge very simply that Congress made a choice with full recognition.

There would be special cases where hardship, where you as you say might be easy to prove but I think Congress was thinking at the bulk of the cases.

Unknown Speaker: Well I know it was but why -- is it just an administrative cause or difficulty of sorting them out on individual cases?

Mr. Harold R. Tyler, Jr.: Well, as the argument has been made, in the legislature as recent as few months ago where Congress is considering a Bill to achieve the result which plaintiffs urge in which you’re really talking about.

And one of the considerations of course is would it really be that hard.

But our argument very simply is Congress has the right and the power to decide this and as long as it’s rational, even though you or I or anyone else could think of a better method, really doesn’t solve the problem from a constitutional basis.

Unknown Speaker: You say it’s -- what is the rational of it in excluding the -- in the particular child’s case if there has been a close association down through the years then Government admits it.

What is the rationality?

Mr. Harold R. Tyler, Jr.: Well, that isn’t the determination as I understand it that Congress made here.

Congress approached this one from another angle.

Unknown Speaker: I know what Congress said, I’m just trying to see what you say is a rational.

Mr. Harold R. Tyler, Jr.: It seems perfectly rational judgment although it’s vague.

Unknown Speaker: Is it rational because it’s too hard to prove it in some other cases and therefore you don’t want to [Voice Overlap].

Mr. Harold R. Tyler, Jr.: In a great number apparently.

Apparently because of the differing laws about legitimate children as oppose to illegitimate children partly because of different laws as to records, partly because of the horrible problems of proving or disapproving paternity and that’s true whether you are once dealing with an alien or a citizen.

I can’t deny that there are cases, of course.

But are argue what basically comes down to this.

First if all its Congress that makes the choice, particularly when we’re dealing with questions of alienage and second of all it isn’t irrational that to make the cut as Congress did it.

And I would have to concede to, you or anybody else that there will be these individual cases.

I have to concede that if you went down carefully on a case by case basis there would be some that with the Government would concede on as you point out.

But then there would be many, many that the Government would not concede but as Congress has tried --

Chief Justice Warren E. Burger: Mr. Justice Homes said once that every line drawn by legislative action excludes some that could well have been left in and includes some that might well have been left out.

Mr. Harold R. Tyler, Jr.: I think Mr. Justice Blackmun said that even more recently but that’s correct.

And here, we have to accept as Mr. Justice White’s point, there is no doubt that there are individual cases and you know we only heard about one of the plaintiffs case here this afternoon.

This is perhaps the most appealing to many as I agree with Ms. Calvo on that.

The cases of the other plaintiffs are not so appealing but I don’t think Congress was unaware of that problem.

I think what they decided to do was to take the problem on a natural basis as they understood it and as the immigration laws have presumed for many, many years that the rational or the most rational place for a child was with the natural mother and that illegitimate or the fathers of illegitimate parents or illegitimate children of course in some instances are very close to their children but in many more instances are not.

Also, if I may say a father does have a chance to legitimate his child under the laws of most every jurisdiction whether within or without the United States.

Thank you very much.

Unknown Speaker: And that cannot be done in this?

Mr. Harold R. Tyler, Jr.: No, unfortunately in that case --

Unknown Speaker: Unless the mother is remarried?

Mr. Harold R. Tyler, Jr.: Yes and that presents a problem here.

Unknown Speaker: And apparently under the local law of where it is in the Caribbean legitimation could occur only by marriage of the parents.

That’s my understanding.

Mr. Harold R. Tyler, Jr.: That’s my understanding too and I am sure there are other cases going back to Justice White’s point, there is no doubt.

But our argument is that the Congress is entitled to make the cut even where it lives out some and creates individual hardships.

Indeed, if one looks at other sections of the Immigration law as I am sure this Court knows, you will see other forms of classification that surely tag at the heartstrings of any one of us, I assume and if we were doing it or if I were doing it and I admit I probably try to do it differently.

But we urge that that’s Congress’ province as long as they have some reasonable basis so to do.

Thank you very much.

Chief Justice Warren E. Burger: Do you have anything further, Ms. Calvo?

Rebuttal of Janet M. Calvo

Ms Janet M. Calvo: I do.

What the Government attempts to justify here is a determination made on the basis of a bare stereotype which allows total foreclosure of a group of people and in doing so infringes on a fundamental interest in a parent-child relationship.

Now, maybe a reference to a recent case would be helpful.

In Mathews versus Lucas, distinctions were upheld specifically because they did not completely and totally foreclose a group from proving the objective or the necessary of objecting that case which was dependency.

This was compared to the case of Jimenez in which the classifications were very similar, but the group of people in that case were totally precluded from proving dependency which was the object in that case also.

In this case, there is a stereotype that fathers of illegitimate children don’t care a whit about their children.

I believe that we have shown in our briefs that this stereotype just isn’t valid that there are many, many fathers who do care about their children and our particular concern in this case is with our plaintiffs who do care about their children.

Chief Justice Warren E. Burger: [Voice Overlap] Congress entitled to legislate on the basis of the generality of human experience?

Ms Janet M. Calvo: I believe that their concept of a generality of human experience results in a stereotype here and I don’t believe that legislating on the basis of a stereotype when it totally forecloses a group of people from proving the object which is in this case of family relationship is constitutionally justified.

I also might point out in that regard that the classifications in this case aren’t only just mother father although we do say that that is discriminatory, you also have another classification like the stepparent classification which is completely and totally irrational.

You can’t presume that a man is going to have close ties with his wife’s child but not with his own and that she is going to have close ties with his child that he never has.

That that is the most irrational example in that situation.

Unknown Speaker: Ms. Calvo, can I interrupt you for just a second?

You suggest that the stereotype here is that there is not a very close relationship between a natural father and his illegitimate child.

And that it’s wrong to legislate on the basis stereotype.

I think you probably would acknowledge however, that there are good many instances in which there is not a close relationship between a natural father and illegitimate child and I just wondering, how does one decide when it becomes a stereotype because there are some case that fits and some who don’t.

Ms Janet M. Calvo: I think in this case that it’s -- there has been sufficient proof brought to show that it isn’t a stereotype --

Unknown Speaker: Oh!

I understand, this particular case, you are saying this does not fit the stereotype but how do I know that we are dealing with the stereotype at all, that’s what I’m -- in other words that the classification itself doesn’t have sufficient generality to be illegitimate to the legislative decision.

Ms Janet M. Calvo: There are several classifications that are comparable here.

It’s comparing the father with the mother but also comparing the father in a stepparent situation or fathers with fathers.

Unknown Speaker: Well taking the father and mother would you not acknowledge that more frequently there is a close relationship between the mother and the illegitimate child than there is between the father and the illegitimate child.

Ms Janet M. Calvo: In that situation there may be but that does not justify totally -- it does not justify totally foreclosing the father.

Maybe it might justify imposing differing burdens of proof upon him but it doesn’t justify completely and totally wiping him out when his fundamental interest in his parent child relationship is involved.

Unknown Speaker: I am just trying to figure out you acknowledge there are some difference but can’t you say that the one relationship is a stereotype and I have walked and wrestled with this problem when does something become a stereotype, that’s what I don’t quite understand.

Ms Janet M. Calvo: Well, I think that this Court does has had before in many cases in which fathers have -- fathers of illegitimate children having close with their children.

The most recent one is the Jimenez case in which Mr. Jimenez was the sole caring parent of those children.

And I also believe that the statistics that we presented show that there are substantial number of fathers who live with their children, that those fathers who don’t live with their children very often support them and visit them and perform the sociological functions of their father who didn’t take responsibility for the children.

Unknown Speaker: But Calvo, could Congress pass an Act denying a citizenship to any illegitimate alien?

Ms Janet M. Calvo: Would you repeat that I’m sorry I didn’t hear you.

Unknown Speaker: Could Congress pass an Act denying citizenship to any illegitimate alien -- period?

Ms Janet M. Calvo: That would be a different case from this one because in that case there would only be the rights of aliens involved.

That case would -- a determination in this case that this law is unconstitutional would not necessitate in that case a determination, there are different considerations in that situation.

Unknown Speaker: And as to my question is?

Ms Janet M. Calvo: I think it would -- I have not thought about it.

I think that it would have to be resolved on the basis of its own merits and I would have to think about it more before I could give you a specific answer on that.

Unknown Speaker: Ms. Calvo, General Tyler referred to the fact that sometimes in the country of origin a child maybe legitimated.

Does this record show whether that was possible in the French West Indies where Serge was born?

Ms Janet M. Calvo: Yes, it shows that that the only way that the child could be legitimated in Guadeloupe was by marriage of the parents and this mother did not choose marry Mr. Warner she chose to marry somebody else.

Unknown Speaker: That was the only way?

Ms Janet M. Calvo: Yes that is the only way.

And that’s fairly common in many places that this concept of legitimation or legitimate.

Some children are legitimate when born even though they are born out of wedlock.

Some children of adulterous relationships are legitimate also.

In other places they’re -- children are legitimate only if the parents marry.

For example, in some places a father could have custody of a child and be supporting the child and always live with the child but he is totally incapable of making the child legitimate under the law of the area.

Unknown Speaker: Of course we have cases other than the Warner case here don’t you?

Ms Janet M. Calvo: Yes, those -- we didn’t focus on those only because of the change in the law.

Unknown Speaker: Are they moot now?

Do you feel they are moot?

Ms Janet M. Calvo: No, we don’t think -- they are not moot because the recent amendments contained the Savings Clause which provided that if an application were made before the effective date of the law which is not yet that those people would be entitled to whatever benefits they would have been entitled to wonder the old law.

Unknown Speaker: Well, I wondered because neither of you has mentioned any case other than Mr. Warner, but they are here.

Ms Janet M. Calvo: That’s right we did not focus on that case because basically the issue that those other cases presented is not really an issue except for those two people at this point.

Unknown Speaker: Well, you probably didn’t focus on it because the Warner case is the best case by far that you have.[Laughter]

Ms Janet M. Calvo: Well, I think the other cases have --

Unknown Speaker: It’s also all you need, isn’t it?

Ms Janet M. Calvo: I think that I would -- I’d like to --

Chief Justice Warren E. Burger: When you speak to these stereotypes Ms. Calvo, I am not sure I know what you mean who determines that some situation is a stereotype, who decides that?

Ms Janet M. Calvo: I think that Your Honor, the Government tries to claim that it’s common experience and I am determining -- saying that its not common experience because we have shown that there is enough evidence and the individual fact situations the case show it and also the sociological data and the empirical data show it.

Even the sense as pure data shows it and all the studies that were cited in the brief were all Government studies.

They show it, that fathers do care about their illegitimate children.

Chief Justice Warren E. Burger: Are judges to assume that -- the 535 members of Congress -- either are unaware of all those factors or are not capable of finding out about them?

Ms Janet M. Calvo: I think that what the problem in this case is that it’s a total foreclosure and I think that when there is an individual and or substantial member of individuals who have close ties with their children you can’t completely and totally wipe them out, foreclose them on the basis of some presumptions.

I believe my time is up.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you counsel.

The case is submitted.

Featured:

Norton v. Mathews - Oral Argument

Thu, 23 Aug 2012 18:29:32 +0000

Case:

Norton v. Mathews

Media File:

74-6212_19760113-argument.mp3

Related Transcript:

74-6212_19760113-argument

Transcript:

Argument of C. Christopher Brown

Chief Justice Warren E. Burger: We will hear arguments next in 74-6212, Norton against Matthews.

Mr. Brown.

Mr. C. Christopher Brown: Mr. Chief Justice and may it please the Court.

The counsel for all parties to this case and the next case, Matthews v. Lucas have discussed the following matter and we agreed to suggest to the Court that during the Norton hour, we discuss jurisdictional issues and during the Lucas hour, we discussed the merits and we will, if there is no objection to that.

Chief Justice Warren E. Burger: We will try not to have any questions across that division.

You may proceed with that Mr. Brown.

Mr. C. Christopher Brown: Fine.

Thank you.

In 1969, Gregory Norton Jr. then aged 5-years old, applied for Child Insurance Benefits with the Social Security Administration.

Title 2 of the Social Security Act, allows children whose fathers have become disabled, have reached a certain age or who have died and whose fathers worked and were covered by Social Security employment for a requisite number of quarters, to receive death benefits, at least death benefits in the Norton Case, upon the death.

Gregory Norton applied for these benefits.

He applied for the benefits after his father was killed in the Vietnam war and Gregory is illegitimate.

His mother and his father were not married.

Now, the Act is so structured, now I will just on this briefly because it is not totally relevant to the jurisdictional argument, but the Act is so structured that most other children who were applying for Child Insurance Benefits have to, in addition to several not very controversial prerequisites, have to establish that they indeed are the son or the daughter of the wage earner i.e. he has to establish paternity.

Now, Gregory Norton’s class have to establish another fact.

They also have to establish in addition to paternity, that they were either living with or supported by the deceased wage earner at the time he died.

Gregory Norton filed the cause of action in the Federal District Court to challenge the constitutionality on the Fifth Amendment Equal Protection concepts of that provision.

A suit was filed in the United States District Court for Maryland.

In that suit, there were various jurisdictional basis asserted, 28 U.S.C 1331, APA jurisdiction, mandamus jurisdiction, 1361 and also jurisdiction under the statutory review procedures, 42 U.S.C 405 (g).

The suit was also classed, stated to be a class action.

The United States District Court in its initial opinion, held in its opinion that a class was to be certified, but on the merits that ruled against the Norton claim by three to nothing vote, in a Three-Judge District Court.

An appeal was then taken from that adverse decision to this Court.

This Court, shortly after this court decided the Jimenez case, Jimenez v. Weinberger, remanded this case back to the Three-Judge Court for reconsideration in light of the Jimenez case.

On remand, the Three-Judge Court, this time by 2 to 1 vote upheld the constitutionality of the statutory provision that Gregory Norton was attacking.

An appeal was then brought again to this Court and that is where we are today.

Incidentally, there is another issue that has now been waived by Gregory Norton and that is an issue that he indeed was, in fact in the court, and therefore, met the prerequisite of the Act.

That decision was decided adversely to Gregory Norton.

He waives the -- he has not appealed that issue.

His only issue in this case, in addition to the jurisdictional issues, is whether or not the act is constitutional.

Because if it is not, then he does not have to establish that he was either supported by or resided with his deceased wage earner father.

This case can only come to this Court, if it comes from a properly convened Three-Judge Court in the District of Maryland.

We are alleging jurisdiction in this Court now, pursuant to 28 U.S.C 1253.

That statute requires in turn that a review can only be had from decisions properly convened Three-Judge District Court granting or denying injunctive relief.

Accordingly, we are properly here, as the Three-Judge Court in this case properly had the power to issue an injunctive relief and the kind of injunctive relief that would seek to stop enforcement of the statute.

This we contend, it did have the power to do and this basically was the core argument on the jurisdictional issue in this case.

We have two major routes by which this think this Court -- to either one of which this Court, could get to the final solution that there indeed is injunctive power in the District Court.

One route is by looking at Section 205 (g) of the Social Security Act which is 42 U.S.C Section 405 (g) and that is the provision of the Act which was highlighted in this Court’s recent decision in Weinberger v. Salfi.

And by looking at that statute itself and getting it from the words of that statute or from how that statute should be interpreted in light of the general statutory interpretation rules should apply in this situation or secondly, if 205 (g) cannot do it by itself, we contended the APA who gives the power to -- for a Federal District Court, if not given the power explicitly by the statutory review statute to issue injunctive relief, sort of as an ancillary remedy to what is provided by the statutory review section.

Justice William H. Rehnquist: But in order to get in under the APA, you have to show that the statutory remedy otherwise provided is inadequate?

Mr. C. Christopher Brown: That is true.

That s true.

I hope to be able to point that out today.

First, the general presumption which seems to run throughout the cases of this Court that were decided this century, is that barring an explicit declaration by Congress to the contrary, there is a general presumption of reviewability.

Now also, I think that cases can be read to establish, there is a general presumption that a District Court which is an equity court has brought equitable powers.

Now, admittedly each case that has been decided thus far deals with a specific agency and it is where they expected, the words of each statutory review, provision for each of the agency are not the same as being counted on in this case.

Accordingly, I admit that there is no case right on point.

But, there are many cases which seemed not to be limited in any way and accordingly would be applicable to this situation.

So basically, we are beginning our argument on the assumption that there is a general presumption that the court of equity, which the United States District Court is now, with the combination of law and equity, can grant all relief that is necessary to make the parties whole, unless the Congress specifically said that they cannot.

205 (g) of the Social Security Act, as is pertinent to this case, merely says the following that the District Court after certain prerequisites have been met which Gregory Norton has met in this case, the District Court should have the power to affirm, modify or reverse the decision of the Secretary and we contend that there is nothing in those three words which in any way indicates a congressional intent to negate injunctive relief in this case.

If anything, perhaps the word “reversal” could be read to include the power to issue reverse by an injunctive relief --

Justice William H. Rehnquist: Well, is it not though that perhaps the more accurate question to ask is whether the injunctive authority that is as you say is generally available to the District Courts.

Is there any way necessary to carry out where the statute – what this statute requires the District Court to do.

I mean, can it not fully accomplish what the Congress has intended that it do, by simply setting aside the decision of the Secretary?

Mr. C. Christopher Brown: Okay.

I will move on to that point right now, Your Honor.

If we look at how the Act works and how impractically the needs of the people litigating in this area, the needs of claimants who are attempting to obtain Social Security benefits, we see on two different levels that there are very many practical needs as to why a claimant actually does need injunctive relief as opposed to any other kind of relief.

Now, I think that if we look at those needs and imagine what the Congress must have imagined and indeed, the Congress has not said very much on this issue.

We are basically not working with any explicit statutory history.

We look at the needs for injunctive relief that I would submit the Congress could no way have intended to not allow an equity court to issue injunctive relief.

First of all on the individual basis, now look at this on an individual basis and on the class wide basis.

On individual basis, when an individual claimant receives the benefit, there is no necessary guarantee that he is going to be paid that benefit in a prompt fashion.

Indeed, there may be cases when that individual may want to be able to get benefits before a final judgment is issued i.e. he may want to apply to a court for preliminary injunction or something such as that to give benefits before the District Court has finally decided the ultimate merits of the case.

Here is an example where that could be very helpful.

In this Lucas case for instance, the oldest of Lucas’ daughter, was past the age of 18, she is now past the age of 18, you cannot get these benefits if you are past 18, unless you are still on school.

Now, in her case, she could not still be in school unless she had the money not to have to work.

So in many individual cases, there may be have instances in which the prerequisites of a preliminary injunction have been met by an individual parting and for instance in this situation where you have someone who has strong need for the benefits it could very clearly be a situation in which they could establish the various equities and so forth to get a preliminary injunction.

That would be one kind of an injunctive relief, but admittedly, that would be the kind of injunctive relief you need in order to have a Three-Judge Court.

That would not enjoin the enforcement of the statute.

Chief Justice Warren E. Burger: Will that injunction be very useful, if the case was on review?

It is very likely that if we decided to take the case that, that would be enough also to suggest the likelihood of a stay of the injunction until the merits were decided.

So, how would that get any money in the pocket of the recipient?

Mr. C. Christopher Brown: Well, then the government would have to come in and fight against the preliminary injunction motion and they would balance the equities in that situation, and either win or they lose or if the decision was issued favorably to the individual claimant, the way normal cases work, that claimant gets the fruits of their victory at that point, unless the other side comes in and requests a stay, pending appeal.

Chief Justice Warren E. Burger: Was that not very often the case?

Mr. C. Christopher Brown: Indeed, that is the case.

For instance, one another case, it was here on summary affirmance is Griffin v. Richardson.

In that case, the Three-Judge Court held another provision in Social Security Act unconstitutional, violating the illegitimate children’s rights.

The government came in and asked for a stay, pending appeal.

They said that $50 million is going to have to be paid out.

That is too much.

That is what the Supreme Court does.

The Three-judge Court unanimously denied their request for a stay, pending appeal and Mr. Justice Burger, you affirmed that denial.

The benefits were paid out by the Social Security Administration or at least the process was begun before this Court summarily affirmed that decision.

Now, that is just one situation and each case would have to be decided on its own individual merits.

I think that it is even more.

There are more important reasons than --

Chief Justice Warren E. Burger: Then because when the stay application is presented at this level, an evaluation is made of the probabilities?

Mr. C. Christopher Brown: Indeed, you would have to show a strong (Voice Overlap)

Chief Justice Warren E. Burger: It is a little -- it is a little difficult to generalize about this, is it not?

Mr. C. Christopher Brown: Indeed, you would have to make a strong likelihood of success on the merits.

The irreparable harm would have to be significant.

The public interest would have to be in one’s favor and it would have to not be of significant harm to the government.

I am assuming that those could be met.

We are talking now about why injunctions are needed and we cannot specifically talk about this case or that case.

We lost below in this case.

We are in no position to --

Justice William J. Brennan: May I ask, I gather this is an argument that there is this equity power of the District Court?

Mr. C. Christopher Brown: This is correct.

Justice William J. Brennan: And that affirm, reverse or modify in no way reduced that power --

Mr. C. Christopher Brown: That is correct.

Justice William J. Brennan: -- or curtail, is that it?

Mr. C. Christopher Brown: That is correct.

Justice William J. Brennan: You do not -- you are not making an argument that one may construe, affirm, modify or reverse, although you did say earlier something about a reversal might in some instances, tantamount to injunction, but this is not an argument and that any of those words should be interpreted as embracing that power?

Mr. C. Christopher Brown: You are correct, Your Honor.

Right now, I am saying -- I am about to go to the policy reasons that the Congress would have had to go through themselves.

Justice William J. Brennan: I just do not understand.

What you are saying is that the power that one usually has in an equity court has not in any way has been curtailed by the language used in 405 (g)?

Mr. C. Christopher Brown: That is correct.

That is my argument and when the language says nothing, we try to look to other reasons as to what the Congress might mean and now, looking at these various actual needs, the claimants might have, I think that this helps expose some of the reasons why Congress would not have wanted to preclude injunctive relief.

The most important aspect of any case such as this is an attempt to make everyone whole who has suffered under an unconstitutional provision, in this case, the Social Security Act, there is a need for a proper perspective enforcement or un-enforcement as the case may be in this situation of the illegal provision of the Act, there is a need for retroactive benefits to be paid or at least the court would be asked for that.

Justice William H. Rehnquist: You I presume you are speaking with respect to people who are parties to the litigation?

Mr. C. Christopher Brown: Well, with respect to retroactive benefits, I am talking about the parties, the named the plaintiffs in litigation as well as the class.

Justice William H. Rehnquist: A class consisting of people who had made claims to the Secretary and who had made them within 60 days?

Mr. C. Christopher Brown: That is correct, Your Honor.

Who have applied for benefits, who have been denied by benefits solely because of this specific provision that the rest of the class is litigating and who have filed their requests for benefits or their appeal to the District Court no later than 60 days or perhaps we would contend later on if there is a tolling effect and that Gregory Norton in fact tolled the statute of limitations for this class.

Justice William H. Rehnquist: Well, even if they had not applied for benefits within 60 days, if they would be members of a class, I suppose the class member filing might be tantamount to a filing for them, but at least the class could not embrace people whose claims had been denied by the Secretary more than 60 days before the class member filed.

Mr. C. Christopher Brown: That is correct, Your Honor.

That is exactly correct and we do not ask for anything broader than a class that would be defined as you just define it.

Without injunction relief, there is really nothing that can be done in terms of making everyone whole.

The Act itself is now structured so that the individual claimant can be made whole, but there is nothing which makes everyone whole.

All those illegitimate children in this case have applied for benefits, but have been denied benefits because they could not meet the specific requirements of the Act that are being challenged in this case.

I think that Congress -- I cannot imagine that the Congress would have wanted to preclude any District Court for making the whole class whole after a court had decided that the provision under which the whole class was denied benefits was unconstitutional.

Justice William H. Rehnquist: But can the court not make that whole class whole simply by setting aside the order of the Secretary with respect to each member of the class?

Mr. C. Christopher Brown: Well, what would be you are saying is another word other than injunction, that would be used to define what the District Court would do, and that would be setting aside.

Justice William H. Rehnquist: Well, an injunction says to the Secretary as I conceive it, “This provision is unconstitutional and you are barred from enforcing it.”

Now, it might be enforceable only by people who are parties of this action, but setting aside, at least I would read 405 which would say, “Your order in this case is invalid because it relied on an unconstitutional Section of the statute, therefore, this claimant should be awarded benefits.”

Mr. C. Christopher Brown: The court also say that the whole class of claimants should be awarded benefits in the same manner.

Justice William H. Rehnquist: Well, certainly If the class were uniformed, properly a class, the court could say that the awards in each of the cases are set aside?

Mr. C. Christopher Brown: I would have no difficult -- the word “set aside” I do not believe in the statute just as the word injunction is not in the statute.

Justice Potter Stewart: That does involve the basic jurisdictional question of this Court and presumably that could be done by a Single-Judge Federal District Court?

Mr. C. Christopher Brown: I understand that, Your Honor.

Justice Potter Stewart: Now, on the other hand, if the holding were as my brother Rehnquist suggests that the statutory provision upon which the Secretary relied was unconstitutional, then I suppose there would still be a direct appeal of this Court under the other statutory provision, 1252, would it not?

Mr. C. Christopher Brown: Correct and that is why Lucas is here.

Justice Potter Stewart: But of course in this case, the holding was the opposite way on the merits?

Mr. C. Christopher Brown: The problems that I have with getting relief and making the class whole is by something not called injunction, but instead called setting aside of the decisions of the Secretary for a whole class are as follows.

There is often a need to assure some degree of promptness in what the Social Security administration does.

The Social Security does not necessarily act as promptly as perhaps they ought to act.

An injunction is something which enables people to act a bit more promptly and it enables the attorneys for the people who have gotten and received a favorable order to assure that a prompt action would be carried out.

Also, I think that many times, their classifications are needed.

The Secretary does not willfully disobey orders, but sometimes there is an ambiguity as to what an order means.

Experience has at least shown me that if you have an injunction which is ordering anybody to do something, that much more readily assures prompt resolution of any ambiguity that may arise.

Another factor which would compel that there would be an injunction rather than to say just to setting aside or nothing at all is, that with something, it is -- it would be termed just setting aside the decision of the class.

You in effect are assuming that the Secretary is lost and the claimant class as one, are giving the Secretary a stay, pending, an automatic stay, pending appeal.

I do not think Congress would have intended that the Secretary necessarily gets an automatic stay, pending appeal.

Justice William H. Rehnquist: Why do you think that the Congress then show us this particular language, affirming, modifying or reversing the order of the Secretary as the method by which the Secretary’s decisions would be judicially reviewed?

Mr. C. Christopher Brown: Well, I am not -- it seems to be the primary method by which the Secretary’s decisions are to be reviewed.

I have argued my brief that there can be other methods also.

For instance, we are talking about the Act, 205 (h) talks about decisions of the Secretary.

There could be a very good argument that this is not a decision of the Secretary that we are challenging, but it is a decision of the Congress deciding Johnson v. Robinson.

Justice Potter Stewart: Quite a lot of these doubts you are suggesting pretty well resolved in the Salfi opinion?

I have not got it before me, but did the Salfi opinion not say just that, that this is the method by which Congress has chosen that the Secretary’s decision be reviewed and a decision such as this is a decision of the Secretary and not of the Congress, of the Secretary within the meaning of the statute?

Mr. C. Christopher Brown: Let me say this.

It appears as if -- I read Salfi ad nauseum, it does not seem to have anything --

Justice Potter Stewart: How many readings to that test?[Laughter]

Mr. C. Christopher Brown: Salfi does not indicate in any way except with one slight exception which I will touch upon, that for instance, there is no way in which you can get injunctive relief.

Salfi did not need to decide that issue because Salfi had a different circumstance.

Salfi says nothing that, for instance, part of the APA, Section 703 to 704 of the APA, give ancillary power to issue injunctive relief.

Salfi does not touch upon that.

I do not think, even if we assume that 205 (g) is the only way that we get review on this case, that does not preclude injunctive relief because that does not preclude relying upon the ancillary APA remedial powers.

There is nothing in Salfi and there is nothing in 205 (g) or 205 (h) which in any way precludes that to the best of my knowledge.

And, there is a language in 205 (h) which says, “In order to get a review under this Social Security provision, you have to follow all portions of the Act” and by the class that I have suggested, they defined that the class by definition would have followed all portions of the Act. We are exhausting, which is one if the things that Salfi requires.

We will file applications which Salfi requires.

I can see nothing inconsistent with what we are asserting here and --

Justice Byron R. White: Well, you are going with Salfi -- you are not suggesting though that the District Court would have, prior to enjoying the operation of the act of Congress, generally against anybody is not enough for you to say that it is not inconsistent with the judicial review provisions for the court to in effect enjoin the operation -- to set aside the award or to set aside the denial of the award on the ground that the Act is unconstitutional?

You are enjoining the operation of the statute to that extent.

Is that not enough, that is all that you need to --

Mr. C. Christopher Brown: That is enough.

I am talking about these hypotheticals merely to try to spell the notion that Congress could have intended there to be no injunction power at all.

These hypotheticals are not necessarily in this case, but what you said is correct.

Justice Byron R. White: But, do you think that the setting aside a judgment of the Secretary on the ground that he acted under is unconstitutional, does that amount to an injunction?

Mr. C. Christopher Brown: I think that it amounts to injunction if there is the same bite that order would have which an injunction has which means that something has to begin happening now or payments have to start to be made now and payments would have to be made to the whole class.

If that is what the setting aside entails and implies, I think it is tantamount to an injunction.

Justice Byron R. White: Well, what does it imply?

Mr. C. Christopher Brown: I presume, Justice Rehnquist has suggested this, and it would seem that if you use the word “set aside” and treated them like an injunction, there are cases that this Court established that you have to then have a Three-Judge Court.

We do not know.

You generally look at what the remedy does as opposed to the (Voice Overlap)

Justice Byron R. White: The Secretary acts under a statute and says that your claim is erroneous because the statute bars it and the Court says, “That statute is on the constitution, you cannot bar them for that reason.

Your order is set aside.”

Now, the act of Congress -- the Court is refusing to apply an act of Congress in that particular case.

I take it.

And he is telling the Secretary (Voice Overlap)

Mr. C. Christopher Brown: You are saying that an individual ordered to set aside a case would not in effect stop the enforcement of an Act.

Justice Byron R. White: Well, I mean, the statute says in an injunction restraining the enforcement or the operation of the statute as well as --

Mr. C. Christopher Brown: I understand your point and I would agree with that point.

Justice William H. Rehnquist: That in turn is set aside is probably unfortunate.

I think reverse which is the statutory line, would accommodate the same question?

Mr. C. Christopher Brown: That is quite probable.

My suggestion would be that that would be that that would be tantamount to injunction.

Justice William J. Brennan: Now you saying reversed is tantamount to what?

Mr. C. Christopher Brown: Your Honor, I think if pressed to my hardest argument, I would say that reverse includes to give injunctive relief or that kind of -- I do not think that I am pressed to that point.

Justice Potter Stewart: Does a Three-Judge court would be required to do it?

Mr. C. Christopher Brown: Yes, Your Honor.

If the reversal was tantamount to an injunction and operated like an injunction and restrained enforcement of the statute, a Three-Judge Court would be required.

This a unique way of approaching it and I had approached it on a traditional ways which would make a little clearer as to what was happening, and therefore, whether a Three-Judge Court is necessary or not.

I would like to reserve whatever time I have left if that is possible.

Chief Justice Warren E. Burger: Very well.

Mr. Jones?

Argument of Jones

Mr. Jones: Mr. Chief Justice and may it please the Court.

The United States takes the position in this case that this Court lacks jurisdiction to hear this appeal.

Our contentions in this regard may be summarized by the following five points.

First, the appellant’s individual claim for relief did not require the convening of a Three-Judge District Court.

Second, the District Court lacked the subject matter jurisdiction over the class designated by the appellant.

Third, although the District Court may have possessed subject matter jurisdiction over a far more narrowly defined class of claimants, a suit on behalf of that class would not be cognizable under the Federal Rules of Civil Procedure.

Fourth, even if such a class action were cognizable under the rules, the class would nevertheless been unable to assert a substantial claim for an injunctive relief, and therefore, under no circumstances would a Three-Judge Court have been required to hear that case.

And fifth and finally, since the Three-Judge Court was not required, this Court lacks jurisdiction over the appeal.

I will now elaborate on these points.

I begin the analysis by distinguishing between the appellant's individual claim and the claim for class relief.

I will first take up the jurisdictional aspects of appellant’s individual claim for relief and then discuss the implications of his request for certification of the action as a class action.

The appellant’s suit on his own behalf was brought to review a decision of the Secretary denying him child’s insurance benefits.

As such, that suit was governed by the second sentence of Section 205 (h) of the Social Security Act.

That sentence provides in essence, “No decision of the Secretary shall be reviewed by any court except as provided by Section 205 (g) of the Act.

In turn, Section 205 (g) requires an exhaustion of administrative remedies by restricting the District Court’s jurisdiction to the review of final decisions made by the Secretary after a hearing and within 60 days prior to the filing of the complaint.

Now, it is conceded here that the appellant did exhaust his administrative remedies and the District Court concededly had subject matter jurisdiction over his claim.

Our contention however, is that the District Court did not have jurisdiction to grant an appellant’s request for individual injunctive relief.

Section 205 (g) as it has been made clear, confers on the District Court’s power only to and I quote from the statute “Enter a judgment affirming, reversing or modifying the decision of the Secretary.”

Justice Potter Stewart: It has been suggested that if an individual claimant appeals the Secretary’s decision, after having exhausted his administrative remedies, ask for a review of that in a District Court upon the ground that the statutory provision upon which the Secretary relied in denying the claim is an unconstitutional provision that that is the functional equivalent of requesting a District Court to enjoin that statutory provision, and therefore, a Three-Judge Court is required.

That is what I understood, the answer of your brother to be to my question?

Mr. Jones: Well, if his argument is that a reversal of a denial of benefits on the grounds that the statutory classification is unconstitutional is in fact an injunction --

Justice Potter Stewart: It is a functional equivalent of an injunction, he seem to phrase it, but that is what I understood he was saying?

Mr. Jones: It may have the same consequences as an injunction as to the individual plaintiff, but it certainly is not an injunction in the sense that Section 2282 of the judicial code refers to injunctions.

It does not disrupt the operation of the Act in its entirety as to all persons --

Justice Byron R. White: (Inaudible) at least it might (Inaudible) with respect to the entire class?

Mr. Jones: That is a question that I was going to reserve until I reached the discussion of the class action aspects.

Justice Potter Stewart: (Voice Overlap) or for everybody in that judicial district until it is reserved or stayed, would it not?

Mr. Jones: Well, the district judges in that court might disagree, but it is --

Justice Potter Stewart: It is all the effect that an injunction could have?

Mr. Jones: But it is certainly true that if a District Court or a Court of Appeals exercising purely legal and non-equitable powers, holds a statute unconstitutional, that is the law for that district or that Court Appeals, that circuit.

Nevertheless, that has never been considered to be the kind of injunctive relief that requires a Three-Judge Court.

Justice Byron R. White: I have thought that in a typical Three-Judge Court situation that -- you need is a Three-Judge court just, even though you only challenge the application of the statute in a particular case, Duncan v. Walker?

Mr. Jones: I think that --

Justice Byron R. White: Is that right or not?

Mr. Jones: I did not think that that was right.

I thought that if what was being sought was merely the provision of benefits to an individual claimant, that is the equivalent of a reversal of the denial of benefits to him than (Voice Overlap)

Justice Byron R. White: Suppose I would go into court to enjoin and claim that as applied to me, to this set of facts, this statute is unconstitutional.

It may be quite constitutional like any other circumstance known to man, but in this situation, it is unconstitutional.

Now, does that require a Three-Judge Court?

Mr. Jones: I think not.

Justice Potter Stewart: Well, your answer would be yes to the injunction?

Mr. Jones: He has not stated that yet.

Justice Byron R. White: Yes and he wants an injunction against its application to him?

Mr. Jones: Well then, that kind of injunctive -- I guess the frank answer is that I am not sure Mr. Justice White.

Justice Potter Stewart: What constitution was applied?

Justice William H. Rehnquist: And yet in a declaratory judgment, expressing that a precise same proposition of law, it does not require a Three-Judge Court?

Justice Byron R. White: Well, that is true even if you declare (Inaudible) on its face?

Justice William H. Rehnquist: Yes.

Justice Byron R. White: So, that is not really involved.

Is this any different from the Duncan v. Walker situation where this statute has just not been permitted to be applied in this case?

Mr. Jones: And the argument is that even though, as in Lucas, for example, it may be a reversal, nevertheless, it is a reversal that is equivalent to an injunction.

I mean, that -- one of these cases (Voice Overlap)

Justice Byron R. White: Well, the Secretary's decision goes out -- the Secretary’s decision goes out the window and may not be enforced because the statute is unconstitutional?

Mr. Jones: As to this individual.

Justice Byron R. White: Exactly.

Mr. Jones: But, that is not the kind of injunction that prevents the Secretary from -- and a decision by the District Court reversing the denial of benefits as in Lucas is not the kind of decision that disrupts the operation of the Act as to other parties.

Our point here is that, as to the individual and I am only now discussing the individual aspect to the case, there was no power to grant injunctive relief.

All that the court could do was reverse the decision of the Secretary and that reversal is not the kind of injunctive disruption with the operation of the Act that warrants the convening or requires the convening of a Three-Judge District Court.

Justice William H. Rehnquist: But if you were going to analogize the reversing because the Section was unconstitutional to some other form of more traditional relief than that contemplated in 405, could you not just as easily analogize it to a declaratory judgment as to an injunction?

Mr. Jones: I think it would be more accurately and that will.

When there is only one plaintiff involved, really it seems to me, we are in a large part playing with words because whether it is more closely analogizable to a declaratory judgment or an injunction or a simple reversal of the denial of benefits, the effect is the same.

And it seems to me that if this Court is to construe any request to reverse a decision of an administrative agency on the ground that it is the application of an unconstitutional statutory provision, the Court construes every such request as a request for a Three-Judge Court injunction.

A jurisdiction of Three-Judge courts is going to be enormously expanded.

Justice Potter Stewart: (Inaudible) numerous decisions of this Court saying that that statute should be very narrowly construed?

Mr. Jones: That is correct, Mr. Justice Stewart.

Justice John Paul Stevens: Mr. Jones, am I correct in understanding, I suppose it is obvious, the District Court here is exercising original jurisdiction rather than an appellant jurisdiction, is it not? The word “reverse” is somewhat unusual for a District Court?

Mr. Jones: Although there are many circumstances in which a district in effect has a review of authority over administrative agency.

Justice John Paul Stevens: But the order, when it is changed is -- the District Court does not in effect enter an order for the Secretary.

It orders the Secretary to do something?

Mr. Jones: Well, it reverses the decision of the Secretary, denying the benefits.

Now, I think that that is a kind of appellate jurisdiction, although within the framework of Article III, since the administrative agency is not a court, it is, of course, original jurisdiction for those purposes.

Justice John Paul Stevens: Other than this statute, does the District Court have jurisdiction to reverse orders?

Is it not after traditional ways in which a District Court exercise original jurisdiction when it orders somebody to do something?

Mr. Jones: I am not sure what the review provisions with regard to other administrative agencies is.

I would suspect that this is not an extraordinary form of granting traditional view, that it is relatively common to provide for a review by reversal, but I am not positive to that.

But it summarizes that our position as to the individual claimant.

First, we believed that there is no injunctive authority as such because the statute does not embrace it.

Secondly, that if the statute does, in fact, embrace such injunctive authority and nevertheless injunctive relief would always be inappropriate as to an individual claimant because an individual claimant always has an adequate remedy at law in the form of a reversal of denial of benefits.

An individual claimant never needs an injunction.

The opposing counsel suggested that he might need preliminary injunctive relief.

I would make two comments with regard to that.

First, such preliminary relief would be no more appropriate here than it was in Samson against Kennedy, excuse me, Samson against Murray, where it was held that the Back Pay Act prevents injunctive relief on behalf of the individual federal employees who are seeking to avoid dismissal.

And secondly, as opposing counsel has conceded, preliminary relief of that kind is not the kind of relief that would entitle the claimant to a Three-Judge District Court.

Therefore, it is our review that if the appellant is to prevail in this case, he must establish that the class action was appropriate, that a Three-Judge Court was required, if at all, and we think not, only if a class action was appropriate.

Justice Byron R. White: What happens Mr. Jones, if the Secretary says, “Well, it is a fine decision,” I am just not going to enforce it and I am just -- somebody will have to do something to me pretty bad about that decision.

Was he in trouble with the District Court or not?

Mr. Jones: No, certainly not.

He could not be held in contempt by the District Court if he refused to obey its order.

Unknown Speaker: You have to admit that?

Mr. Jones: Well, I think it is quite clear.

I would think that anyone seeking to hold the Secretary in contempt for refusing to obey the decision would have a very difficult role.

Justice Byron R. White: Do you think he could get -- you think the person then could get any more relief from the District Court?

Mr. Jones: You probably could get a mandamus --

Justice Byron R. White: He could go back and get a (Voice Overlap) ordering him to obey?

Mr. Jones: -- probably get a mandamus order and enforcing the order if the Secretary refuses to obey --

Justice Byron R. White: Under another head of jurisdiction?

Mr. Jones: The Congress of course assumed that the Secretary would abide by final decisions of the courts and determined that it would be unseemly and inappropriate and unnecessary to subject the Secretary to coercive orders.

I do not think that is a fair method of interpreting the statute to attribute that fate to the Secretary.

Justice Potter Stewart: (Voice Overlap)

Mr. Jones: Excuse me Mr. Justice Stewart.

Justice Potter Stewart: Yes.

I am sorry that I have interrupted you.

Mr. Jones: Yes sir.

Justice Potter Stewart: I am just curious.

Let us assume a reversal by the District Court.

Just let us say, the weight of the evidence, then is that the end of the matter?

Does the District Court just enter a judgment, granting the claimant what he has asked or does he go back to the Secretary for a new proceeding consistent with (Voice Overlap)

Mr. Jones: It is like remanded to the Secretary and the Secretary then pays the benefits.

Justice Potter Stewart: Does the Secretary then (Voice Overlap)

Mr. Jones: If the government does not appeal.

Justice Potter Stewart: Does the Secretary issue an order?

Mr. Jones: I do not believe so.

I think that the payments were simply made.

Justice Potter Stewart: As a result of the District Court’s order?

Mr. Jones: That is correct.

Justice Potter Stewart: Perhaps it is not important.

Mr. Jones: Let me turn now to the question of the propriety of class relief.

We begin with the fundamental proposition that the District may entertain a class action only if it has subject matter jurisdiction over the claims of the individual members of the class.

Now, appellant contends here that subject matter jurisdiction over the claims of the class existed here under the mandamus statute or the administrative procedure act and we answer, that contention, I believe in full in pages 13 through 18 of our brief in this case, not only summarize our points with regards to that aspect of the case.

We point out there that first, this Court in Salfi rejected that contention.

The Court held that Section 205 (h) of the statute, third sentence of that provision, forecloses all non-Social Security Act sources of jurisdiction.

Secondly, we think that the Salfi decision is plainly correct because it effectuates the clear congressional intention of restricting social security suits to cases in which the claimant has exhausted his administrative remedies as provided by Section 205 (g).

And third, we point out that if the appellant’s position with respect to the mandamus statute were accepted, that would lead to results so anomalous as to be untenable because it would provide for jurisdiction only as to those persons as whose claims were the least right for adjudication.

Accordingly, for all these reasons, the only source, the only possible source of subject-matter jurisdiction over the class was Section 205 (g), but the jurisdiction conferred by Section 205 (g) clearly did not extend to the claims of the class designated by the appellant.

Section 205 (g) confers jurisdiction, only over suits brought to review a final decision of the Secretary, after a hearing, made within 60 days prior to the filing of the complaint.

The appellant in his complaint and the District Court in its opinion, defined the class far more broadly to include and I quote here from the District Court opinion, “All of those persons otherwise eligible for child’s insurance benefits who cannot qualify for such benefits solely because they cannot meet the requirement that they would be living with or supported by their father on the date of his death.”

That class embraces many individuals who had no right to sue in their own behalf under Section 205 (g) and the District Court plainly had no subject matter jurisdiction over the claims of that class.

Thus, our position is that here as in Salfi, the designation of a class and a complaint was plainly deficient.

The complaint contained no allegations that the class members and I here quote from the Salfi opinion, “have even filed an application with the Secretary, much less that he has rendered any decision, final or otherwise.”

For the government, this is probably the most important single point in this case.

The government’s primary interest is in obtaining a re-affirmance of the Salfi holding that the District Courts in social security cases may not award class relief to individuals who do not themselves have a right to bring suit under Section 205 (g).

Problems faced by the social security administration in administering very broad and loosely defined classes, a relief as to such classes, I mean, in some cases, be literally insurmountable.

There is no statutory basis for awarding benefits to such class and it should be awarded.

In propriety of the class designation and Salfi was the end of the matter.

We think that it should be the end of the matter here as well.

The District Court lacked jurisdiction over the class that the appellant sought to represent, and therefore, was without power to consider any request on behalf of that class by the injunctive relief or otherwise.

It follows that the Three-Judge Court was not required to be convened and this Court does not have jurisdiction.

Now, with that said, as I understand the appellant’s argument here, he seems to contend that the District Court, in fact, had jurisdiction over a more narrowly defined class of claimants and that the proper remedy, although he does not expressly so state, maybe to vacate the decision below and remand it for recertification of the class.

I would to take some time to explore the ramifications of that suggestion.

It is true that it is a purely technical matter.

Section 205 (g) does appear to leave some room for possible jointer of a very narrow class of plaintiffs.

It permits the District Courts to review the decisions of the Secretary, final decisions to the Secretary, rendered after hearing within 60 days of the filing of the complaint.

Thus appellant’s redefined class would presumably be those applicants for child’s insurance benefits whose applications were denied on the same basis, the same grounds as the appellant’s request within 60 days prior to the filing of the appellant's complaint.

I would make two points with regard to such a class.

First, it is very unlikely that the certification of such a class would be permissible under rule 23 of the Federal Rules of Civil Procedure.

This is so for two reasons.

First, Rule 23 (a) (1) requires the class to be so numerous as to make jointer of individual plaintiffs impracticable.

This requirement is not likely to be met by appellant’s class.

Indeed, the appellant may be the only member of this class and if there are any other members, they are very likely to be few in number.

Second, Rule 23 (a) (3) requires that the individual plaintiff’s claim be typical of those with the class.

That is not the case here and it is not likely ever to be the case or very likely to be the case in the social security context.

Most suits are for review, and this is true of appellant’s suit here, may or will turn upon the substantiality of the evidence on which the Secretary’s factual findings were based.

The appellant, for example, contested the Secretary’s finding that his father had not been living with or supporting him at the time of death.

Similar factual claims might be made by every disappointed claimant that the appellant seeks to represent.

He has abandoned it here, but that does not bear upon the question of whether his class was properly certifiable under Rule 23 (a) (3) --

Justice Thurgood Marshall: Would all of those (Inaudible) must be decided by the District Court whether they have the sufficient number in the class? (Voice Overlap)

Mr. Jones: I would have thought that since the District Court could not issue, in our view, an injunction against the statute on behalf of the individual that only if the certification of the class was proper, would there be any substantial claim for injunctive relief that would have warranted the convening of the Three-Judge District Court.

Justice Thurgood Marshall: I thought that I talked about that suggestion if you go back to see if you can limit the claim?

Mr. Jones: Well, that it seems to me is a suggestion of what I am suggesting to the contraries that if you did that, if you follow that procedure, you would find that there would be no class that could be certified.

Therefore --

Justice Thurgood Marshall: How can you be sure of that?

Mr. Jones: I cannot be positive, but what I am suggesting --

Justice Thurgood Marshall: (Voice Overlap) let the District Court find out whether you are right or wrong?

Mr. Jones: Well, I have no serious principle objection to that Mr. Justice Marshall.

I think if the procedure was to require the Single-Judge District Court to make all of these determinations ab initio before convening to the Three-Judge Court, that that would be a perfectly appropriate method of dealing with these cases.

Justice William H. Rehnquist: Could a single district judge not -- supposing, a plaintiff in the position of an appellant here, files the claim, asks that it is moved as a class action on behalf of all those whose claims were denied within the past 60 days by the Secretary for the same reason is his was.

Could he not then, without necessarily asking for injunctive relief, simply say he wants all of those actions of the Secretary set aside?

Mr. Jones: That is my next point Mr. Justice Rehnquist.

That is quite alright, but what I was going to say is that if you surmount all of these hurdles as to the certification of the class, nevertheless injunctive relief is not appropriate as to that class.

What you would have is a class of handful of applicants for social security benefits.

All of them had two claims.

One, that the Secretary erred in finding that their father had not contributed to their support or lived with them at the time of his death and secondly, that if the Secretary’s findings were correct, the statute was nevertheless unconstitutional and what I am suggesting is that you had (Voice Overlap)

Justice Byron R. White: (Voice Overlap)

Mr. Jones: What I am suggesting is that --

Justice Byron R. White: Well, I know, but --

Mr. Jones: And therefore, the decision of the Secretary in all of those cases should be reversed.

Justice Byron R. White: And not enforced?

Mr. Jones: Well, Mr. Justice White, that of course is the result in any case in which the decision is reversed.

Justice Byron R. White: Yes, exactly.

Mr. Jones: But, it is not an order that is not be enforced in the same sense an injunctive order is, that is it is not subject to enforcement in the same method as an injunctive order.

Justice John Paul Stevens: Mr. Jones, why do you assume the first issue would be in every one of those cases?

Is it not possible that the class could be composed of persons who would admit they were not supported by their father and live with them?

Mr. Jones: There are two possibilities.

I guess, one would be that a person who had not substantial claim to have satisfied those statutory prerequisites would nevertheless bring a suit for review or secondly, a person might abandon whatever substantial claim he might have.

Justice Byron R. White: As the plaintiff did here?

Mr. Jones: Bur, the consequence of amalgamating all of these individuals and there may not be many of them, in a single class, would be in effect, if that approach is followed, to require those individuals to waive whatever factual claims they might have.

At any rate, it is difficult to conceive of how old those factual claims are going to be litigated in this multi-plaintiff suit for review of the Secretary’s decisions.

Justice Thurgood Marshall: (Inaudible) suggestion a man should be limited to those who are going to the constitution and all of it?

Mr. Jones: I do not think that he is so limited and if so, that would be a further constriction of the class and I am not sure that he would find -- if you had any members in the class to begin with, you would have even fewer now, I suspect.

Justice Thurgood Marshall: Well, I am the one who cannot take your word for that?

Mr. Jones: Well, what I was suggesting, Mr. Justice Marshall is that there are general principles that might lead the District Court to reach that determination, but furthermore as Mr. Justice Rehnquist points out, even if you surmount all those hurdles and certify a class composed of this small handful of plaintiffs, nevertheless, injunctive relief as such is not necessary because a reversal of the denial of benefits is appropriate as to each and everyone of the individual claimants.

Justice John Paul Stevens: Mr. Jones, just one another point.

If your basic argument is correct, am I right in believing that this Court had no jurisdiction in the Jimenez case?

Mr. Jones: That is correct.

The Court would have erred in assuming jurisdiction in Jimenez.

Justice John Paul Stevens: And that would just be an advisory opinion?

Mr. Jones: Well, I think that it would the law of that case and as a practical matter, the Secretary is going to accept it as the rule of law that is applicable in cases affecting other applicants for those benefits.

In short, to summarize very briefly, this Court lacks jurisdiction and we ask that the appeal be dismissed.

Thank you.

Chief Justice Warren E. Burger: Mr. Brown?

Rebuttal of C. Christopher Brown

Mr. C. Christopher Brown: The class that we ask would be defined practically in the same term as the class that was requested and granted in the Jimenez II case, which Mr. Justice Stevens authored for the Seventh Circuit quite recently.

It would be composed of people whose sole issue --

Unknown Speaker: What did Mr. Stevens do (Inaudible)

Mr. C. Christopher Brown: Authored.

He wrote an opinion in a case called Jimenez v. Weinberger which was the same Jimenez case as this Court had a couple of years ago, but on remand, it is coming back up again.

Unknown Speaker: He authored it or --

Rebuttal of Jones

Mr. Jones: Authored.

He wrote it.

He was the author of it.

He did not order it, I don’t think.[Laughter]

The class that we are requesting in this case is the same class that was found in -- well, I will call it Jimenez II to be a fair and probably defined class, consists of people who would only be contesting this one constitutional basis.

It consists of people who have filed applications for benefits.

It consists of people who have met the exhaustion requirements of 205 (g).

As Mr. Justice Stevens’ suggestion, what we would call Jimenez II, the class could be tolled by the filing of the initial complaint so that there would be a broad number of people in the class.

I personally have five clients who I think would be in the class right now.

It is a significant thing.

If there is a factual issue as to numerousity, the best place for that to be decided is in the District Court.

The District Court incidentally, did not have the benefit of this Court's Salfi opinion when it first encountered this case.

It think that it is only fair that the District Court, if we went on the merits, they got another chance to comply with Salfi and was not able to do so and Salfi was a surprise in many ways.

I think that this Court’s decision as to retroactivity and so forth are such that the District Court deserves a second chance to define and use the correct words in its class definition.

I have nothing further.

Chief Justice Warren E. Burger: Very well.

Number 6212, Norton against Mathews is therefore submitted.

Attribution:

The OYEZ Project

Featured:

Mathews v. Lucas - Oral Argument

Thu, 23 Aug 2012 18:30:33 +0000

Case:

Mathews v. Lucas

Media File:

75-88_19760113-argument.mp3

Related Transcript:

75-88_19760113-argument

Transcript:

Argument of Jones

Chief Justice Warren E. Burger: We will hear next Matthews against Lucas.

Mr. Jones?

Mr. Jones: Mr. Chief Justice and may it please the Court.

This case like the one just argued, arises from the Secretary’s denial of Insurance, Child’s Insurance Benefits, to the illegitimate children of a deceased wage earner, on the ground that the wage earner had not been supporting or living with the children at the time of his death.

In this case, however, the claimants brought suit for review only of the Secretary’s specific denial of benefits to them.

It did not request either injunctive or class relief.

The District Court sustained the Secretary’s findings supported by substantial evidence, but nevertheless reversed without issuing injunction, the denial of benefits on the ground that the statutory eligibility requirement of support of co-residence, denied illegitimate children due process under the Fifth Amendment.

Since in so holding, the District Court held a statute of -- held an Active Congress unconstitutional.

This Court plainly has jurisdiction under Section 1252 of the Judicial Code.

Proper analysis of this case requires a full understanding of the statutory scheme for the distribution of Child’s Insurance Benefits.

The formal linchpin of that scheme is dependency.

Under Section 202 (d) (1) (c) of the Social Security Act, payment of Child’s Insurance Benefits are made only on behalf of the dependent children or disabled, retired or deceased wage earners.

However, the Act presumes dependency as a matter of law for most children.

As to legitimate children, the Act presumes dependency if the child is not been adopted by another wage earner.

Dependency is also presumed with regard to four categories of illegitimate children.

First, children whose parents went through a marriage ceremony that was rendered invalid by non-obviously legal impediment.

Second, children whose father had knowledge paternity in writing.

Third, children whose father’s paternity was decreed by court and fourth, children whose father was ordered by a court to contribute to their support.

Dependency is not presumed with regard to other illegitimate children or to legitimate children who are illegitimate adopted children seeking benefits on behalf of their natural parents’ Social Security Account.

In order to be entitled to Child's Insurance Benefits, these latter categories of children must prove that the wage earner was in fact their father and also that their father was living with or contributing to their support at the time of death.

Now, it is a constitutional validity of this statutory classification that is at issue in this case.

The appellees here, the Lucas children, are children that must prove dependency as a condition of eligibility for Child’s Insurance Benefits under the Act and they challenge that requirement as a denial of due process under the Fifth Amendment.

At the out set of this case, it is necessary to address the question of the appropriate standard of review, and with the Courts indulgence, I propose to approach this question in a largely philosophical manner.

The briefs in both this and the preceding case, the Norton case, proceed upon the premise that the two-tiered equal protection analysis that evolved in the late 1960s still governs the adjudication of equal protection cases and upon reflection, I have concluded that this premise is probably erroneous.

This Court appears in large part too have abandoned the two-tiered equal protection analysis and I think for good reasons.

The development of a two-tiered equal protection analysis appears to have been an interim judicial response to the perceived failure of the traditional rational basis test, sufficiently to protect certain disadvantaged groups and to vindicate certain important interests.

And this Court determined that statutes adversely affecting such groups or impinging upon such interests would be subjected to very close judicial scrutiny and would be sustained only if they satisfied or served a compelling governmental interest.

Justice Potter Stewart: You happen to know where that phrase was first used?

Mr. Jones: Compelling governmental interest?

No, but I think --

Justice Potter Stewart: The Cramer case which was in 1969, would that be right?

Mr. Jones: I am not sure of the date.

Justice Potter Stewart: Okay.

The voting rights case in New York, the voting disqualification case, however, go ahead I think I am correct in that.

It was just used as phrase and --

Mr. Jones: That is correct.

Justice Potter Stewart: Not as the doctrine?

Mr. Jones: But it became one, I think.

Justice Potter Stewart: That is right.

That is what happens to phrases.

Mr. Jones: But other classifications continued to be reviewed under the traditional rational basis test which required only a minimal showing of rationality.

And this two-tiered approached had a lot of obvious difficulties to it.

One of these was in knowing to which tier a particular case belonged.

Outside the area of race, there appear to be no available constitutional standards for defining suspectness, that is for selecting a groups with respect to whom statutory classifications would be considered inherently suspect.

Similarly, there are few, if any, constitutional guide posts for determining what interests are so important as to be fundamental.

Another difficulty with the two-tier analysis is that it is never been easy to articulate an adequate constitutional justification for the dramatic gap that existed between the two levels of equal protection review.

Justice William H. Rehnquist: You do not take the Caroline Products putting all this as an article of faith then? [Laughter]

Mr. Jones: In what sense an article of faith, Mr. Justice Rehnquist?

Justice William H. Rehnquist: Well, you do not believe that it has the stature of being bodily incorporated into the constitution?

Mr. Jones: The footnote in the Caroline Products case?

Justice Potter Stewart: It was not an equal protection footnote of the First Amendment --

Mr. Jones: It would be of assistance to counsel [Laughter].

If these cryptic comments could be made more explicit.

Justice William H. Rehnquist: I withdraw my question.[Laughter]

Mr. Jones: At any rate, with consideration such as those I have just indicated in mind, to perhaps in mind, the court has it seems to me perceptively and gradually altered its approach to equal protection cases.

First, in the recent past, it has resisted attempts by litigants to add new classifications to the suspect list of a higher tier.

But secondly and perhaps more importantly, in many putatively lower tier cases, the court has departed from the traditional rational basis test by requiring a more persuasive showing than in the past; that the means chosen by the legislature serve an actual and permissible legislative objective.

In particular, this stronger showing has been required for the challenged statutory classification, defined the class in such a manner as to create the suspicion that the legislature may have been discriminating against it, against the class without just cause.

In this latter development of a stricter irrational basis standard of review, in large part has rendered the two-tier analysis obsolete.

Accordingly, I think it is unrealistic for the appellees here to insist upon a compelling governmental interest standard of review.

But the same token since this case concededly involves a class of individuals that historically has been subjected to social obliquely and to invidious treatment by state legislatures.

Unknown Speaker: But it has no (Inaudible)

Mr. Jones: That is correct.

I think it is equally unrealistic for the government to insist upon the minimal scrutiny of the traditional rational basis test in this case.

Now, I would anticipate in a case such as this, the court would carefully review the challenged statutory classification.

Chief Justice Warren E. Burger: (Inaudible) Magallon against Maryland in this.

Now, your terminologies got me a little bit confused.

Mr. Jones: Magallon against Maryland did not as I recall involved discrimination or --

Justice William H. Rehnquist: Yes, but which test I am speaking of, minimum?

Is Magallon against Maryland (Voice Overlap) do you think of as the minimal scrutiny or minimal --

Mr. Jones: That is correct, but I am not suggesting that the minimal scrutiny test is lost all force, but rather I am suggesting that in practice, the Court has departed from that test in cases involving classes of individuals as to whom there maybe some founded suspicion that they would be subject to invidious treatment by the legislature.

A statutory classification that did not classify people according to any characteristics that would normally define a class that will be subject to social mistreatment, who would I think the subject to the traditional rational basis standard of review.

Justice William H. Rehnquist: How about mortgage holders out in Minnesota in 1935 of Minnesota, that Blade versus Minnesota’s Home of Savings and Loans.

Mr. Jones: I think that kind of economic legislation which does not impinge upon a group that is definable and invidious terms would be subject to minimal (Voice Overlap)

Justice William H. Rehnquist: What do you mean by definable and invidious terms?

Mr. Jones: Well, frankly Mr. Justice Rehnquist, I think that the class that were concern with here, class of illegitimate children, is one that has been subject to invidious treatment by --

Justice William H. Rehnquist: But what do you mean by invidious?

Mr. Jones: Enactments that express moral disapproval of this (Voice Overlap)

Justice William H. Rehnquist: Do you not think that mortgage holders out in Minnesota and 35 were subjected to that same kind of treatment?

Mr. Jones: I would not have thought so.

Justice William H. Rehnquist: Well, there were farmers with pitch forks on the courthouse doors, preventing the law from being enforced as recited in the court's opinion?

Chief Justice Warren E. Burger: Perhaps what you are saying is that they were not to historically for a such a long period of time subjected to a continuous pattern as the illegitimate children who could not inherit and who could not do a lot of other things?

Mr. Jones: Well, really what I am trying to do is simply to state what I think has become the law.

The -- I would have said that discrimination of that kind is not a discrimination against the historically disadvantaged class.

At the same time, it is quite clear that the court has started applying a different rule than the minimal scrutiny test in some cases and what I am trying to do is just to describe what I think is practical matter that rule in this case and that rule I would think be that --

Unknown Speaker: Are you suggesting Mr. Jones that you are reading into some of it, it says as technically the reason was -- a spectrum of stricter group be at one end and the pure minimal at the other and a sliding scale in between?

Mr. Jones: About a year ago, I argued a case called Weinberger against Weisenfell?

Unknown Speaker: I thought you did.[Laughter]

Mr. Jones: I will not make any comments as to the outcome, but it seemed to me to reflect --

Unknown Speaker: It was unanimous?[Laughter]

Mr. Jones: The result was.

It seemed to reflect the application of a standard of review that was stricter than that of which I had argued for at the time.

That is stricter than the minimal scrutiny that had traditionally had been applied to socio economic legislation.

Unknown Speaker: (Voice Overlap) so called compelling it?

Mr. Jones: That is right.

The court did not by terms required the showing of a compelling governmental interest and I would hope that in such cases the court would not, and that if they sufficiently strong showing that the Congress had an actual and legitimate objective in mind that can be made then the court would sustain it.

Justice William H. Rehnquist: But one of your objections though to the two-tier test, you say is the difficulty of deciding which tier is something goes into.

Now, you are in effect proposing three tiers.

Would not that just a compound the difficulty of deciding what tier is something goes into?

Mr. Jones: It certainly complicates matters for both litigants and legislatures.

I think that the two-tier test also complicated it.

I am not really proposing anything, but if I can predict something, I would predict that the Court might be tending toward the formulation of a rule that might embrace a large number of cases and give more guidance to the court.

I think right now, we are in a position frankly where litigants and legislatures really do not know just what they can do and maybe that will always be the case as long as you have an intervention as to approach the Equal Protection Clause.

But I am recognizing now as we do have such an approach in this cases.

At any rate, I would anticipate that the Court would apply a test similar to that that was applied in Weisenfell.

Justice John Paul Stevens: Mr. Jones, would you help me?

I understand you to be saying it should be somewhat with the discrimination between legitimates and illegitimates, the test should be more strict than a rational basis tests.

Would you tell me, what the test (Voice Overlap).

Mr. Jones: Well, I am not saying Mr. Justice Stevens that it should be.

(Voice Overlap) What I am saying is that, what I think the law is and what this Court is going to, what I am positing is a standard that I think it is likely this Court will used in evaluating the constitutionality of the statute.

Justice John Paul Stevens: That is what I like.

Would you phrase for me your understanding of what the law is with respect to the appropriate standard for this kind of thing case?

Mr. Jones: Yes, I would assume that the constitutionality of the requirement that these illegitimate children prove dependency would be sustained if and only if it is shown that requirement furthers an actual and permissible legislative objective and the question in this case is whether the denial of benefits to this subclass does in fact serve an actual and permissible legislative objective.

I would make an important preliminary point at the out set.

This standard of review rules out one motive analysis and I think that should be made clear.

It is not acceptable to ascribe a broad purpose to this statutory scheme that is in fact inconsistent with the challenged previsions and then to hold that the provision is unconstitutional because they did not further that purpose.

An example of what I have in mind is contained in the appellant's brief in Norton, where it is argued that because the Social Security Act is intended to operate in a humanitarian manner, it should strain a court’s credibility to lay at Congress’s door an intent to deny benefits to appellant’s class.

Now, with all due respect to opposing counsel, that line of argument is simply nonsense.

It overlooks the fact that Congress has in fact expressly denied benefits to this class, and therefore, it cannot strain any court’s credibility to lay that intent, intent expressly stated in statute at Congress’s door.

The complexity of a legislative process requires a more subtle and comprehensive analysis of the statute.

The question to be asked in a case like this, is not whether the denial benefits to this class furthers the broad social welfare purpose of the statute, but rather the question that I would anticipate would be asked is why did Congress chose to deny benefits to this class.

If Congress had -- if Congress reasonably believed that denying benefits to this class would serve an actual and a permissible legislative objective, then I would think the statute should be sustained.

Now, I can concede --

Unknown Speaker: (Inaudible) suggest over, Congress has to point out what its objective was?

Mr. Jones: Well, again in Weisenfell, I was surprised to learn that that was the requirement that Congress was required to spell out in this legislative history what its purposes were and than the provisions of the statute had to satisfy those purposes.

That had not been the rule under the traditional rational basis test, but that was the approach that the Court took in Weisenfell as I understood it.

Now, I can conceive of three possible rationales for the statute.

Justice William H. Rehnquist: Let me, let me ask you one question Mr. Jones.

You say that the purpose must have been in actual one on the part of the Congress and that this particular legislation must have furthered it.

So, that we have said in effect and say “Do we agree with the legislative judgment having had this purpose in mind that this particular section furthered that purpose?”

I cannot imagine a more complete method of simply second guessing the legislature.

Mr. Jones: Well, if --

Justice William H. Rehnquist: If they have that in mind, this general purpose and an enacted this sort of statute which in their view furthered it, we would then be seating here and said given that purpose, we think what you choose to further it, did not further it?

Mr. Jones: Well, I think that a lot of leeway has to be given to judging whether a classification in fact furthers the purpose.

But if it can be shown that the classification is plainly irrational in terms of any perceivable legislative purpose, then, it has been the recent attitude of this Court that even if maybe some other conceivable purpose could have been imagined, nevertheless, the statute will not be upheld, but there are inevitable --

Chief Justice Warren E. Burger: (Voice Overlap) besides Weisenfell would you suggest indicate that?

Mr. Jones: Well, I think that the Marie and Marino Food Stamp cases of three years ago are similar examples where under the minimal scrutiny of the traditional rational basis test, I would have thought that those statutory classifications could be sustained.

But the Court --

Chief Justice Warren E. Burger: You get that out of the opinion or do you, is that what your surmise?

Mr. Jones: A lot of this is surmised and I forgotten that.

It has been sometime since I have read the Marino opinion.

Justice Potter Stewart: You might go step further and suggest that the Court return to what was pretty well settled constitutional law for hundred years or so.

The equal protection clause was the last refuge of a desperate constitutional lawyers.

Mr. Jones: That would be fine me Mr. Justice Stewart, but I would like to make the arguments that I think actually sustain this statute under the approach that I anticipate would be followed here and I would say one possible legislature objective, I think, can be eliminated completely at the out set and that is that Congress did not device the statutory schemes simply to invidiously discriminate against the illegitimates.

There is nothing in the legislative history that suggests that the statutory classification was motivated by congressional hostility to illegitimates.

Moreover, the extension of the presumption of dependency in this case, the four categories of illegitimates and the withholding of it from a category of illegitimate children would refute I would think any suggestion that the statutory pattern itself reveals a purpose of invidious discrimination.

Therefore, this is not a case arguably like Levy or Glona, where the legislative objective was the impermissible one of expressing moral disapproval of the state of a legitimacy.

Now, two other legislative objectives that I think should be considered.

One, clearly supports the constitutionality of the statute and the other appears not to do so, and I will take up these in reverse order quickly if I can.

It seems to me that the claimant’s best argument here begins with the contention that the legislative objective was to restrict the payment of benefits to children whether or not actually dependent who had a legal right to be supported by the wage earner.

That would be of course permissible legislative objective.

Although, the evidence is conflicting, there is some arguable basis for that view in the legislative history.

But their argument perceives as I understand it that the statutory scheme may have been constitutional at the time of enactment.

That the premise on which it was base was undone by this Court’s decision in Gomez against Perez, where it was held at the state must grant an illegitimate child, the same right to support from his father as is possessed by the legitimate child and under this line of reasoning since the members of the complainant class now have the same right to parental support as all other children, the denial to them of Child's Insurance Benefits does not further the original purpose of the Act, and therefore, should not be sustained.

Of that I think, is a plausible approach to the problem at hand that there is an equally plausible approach that would sustain a statute and in these circumstances, this Court should of course have difference to Congress, choose the course that sustains the validity of the statute.

Now, as we point at pages 32 through 36 of our brief, the Norton case, there is a substantial evidence, both in the legislative history and directly inferable from this statutory scheme that the purpose of the Child’s Insurance Benefits program is to provide support only for the dependent children of disabled, retired or deceased wage earners.

And that the purpose of acquiring members of the complainant class to prove co-residence or support is to restrict the payment of benefits, to restrict the payment of benefits to those children who may reasonably be presumed to have been dependent.

If that is the correct view of the statutory purposes and we submit that it is, then the statutory scheme must be sustained.

It clearly was permissible for Congress to seek to restrict the payment of dependency benefits to children who reasonably could be presumed to be dependent and the requirement that the members of the complainant class prove dependency, prove support or co-residence furthers that permissible legislative objective.

The opposition expressed to this line of reasoning by the District Court in this case was that under that view of the statutory purposes, the statute is allegedly over inclusive in that it grants benefits to some children who are not actually dependent upon the parental wage earner.

And I would offer two answers to the argument of over inclusiveness.

The first is the statute is not in fact over inclusive, and the second is that in any event mere over inclusiveness is not as sufficient basis from invalidating the statute.

The statute is not over inclusive in the terms that I have described it, that is to pay benefits to children who could reasonably be presumed to have been dependent upon parental wage earner.

As we point out at pages 38 and 39 of our brief in Norton as the District Court correctly observed in that case, it was not unreasonable for Congress to have extended the presumption of the dependency to most legitimate children and to four specifically defined categories of illegitimate children.

At the same time, the members of the complainant class could not reasonably have been presumed to be dependent upon their fathers.

Since the statutory purposes the modest one of separating those classes as to which the presumption of the dependency is reasonable from those is to which it is not reasonable, the statute is not in fact over inclusive in those terms.

But finally, even if the statute were dimmed over inclusive because it fails to weed out some non-dependent children from the list of beneficiaries, that would not justify judicial enlargement of the class of beneficiaries to include all other non dependent children as well.

A statute that is over inclusive, but not under inclusive, that is a statute that grants benefits to some persons who are outside the statutory rationale, but it is not denied benefits to any persons who are within the statutory rationale, should not except for absent the most extraordinary circumstances, be struck down.

The realities of the legislative process and the complexities of administration ordinarily prevent a perfect matching of legislative purpose and effect.

A permissible legislative purpose such as the purpose here of restricting benefits, the children who could reasonable be presumed to be dependent upon their wage earner father should not be abandoned wholesale by the courts, merely because that purpose has not been carried out by the legislature with precision.

Accordingly, the statute here is the denial of benefits to this children furthers a legitimate and actual legislative objective that should be sustained.

I would like to reserve my remaining time.

Chief Justice Warren E. Burger: Very well. Mr. Brown.

Argument of C. Christopher Brown

Mr. C. Christopher Brown: Mr. Chief Justice and may it please the Court.

First, I would like to address myself to the proper equal protection standards that should be applied in this case.

We contend that this class of illegitimate children meets all the traditional criterion which had been applied -- criteria which had been applied to be pop this class within the strict scrutiny standard test.

On the other hand, it seems quite clear that the Dandridge versus Williams test does not apply here for the same reasons that did not apply in Jimenez case.

The Government has made no finite resources argument in this case.

Now, it is not totally important to us as to what label we put on this case.

Is this is a strict scrutiny test or it is just a traditional test?

At the very least, we think that it has to be dealt with very high scrutiny and it is not so important as to what we call it, but it is more important as to what this Court does.

Justice William H. Rehnquist: Weight to this with high scrutiny and strict scrutiny?

Mr. C. Christopher Brown: A strict scrutiny and I would contend under a scrutiny, if there is indeed abrasion, we -- illegitimate children are somewhere at the top end of that gradient and the difference would be this, and people would be placed along the gradient I presume, one criteria to place upon that would be are there are class that has no control over the status that they are being discriminated against here and that is the case here in illegitimate kid situation.

But at a very least and it is not necessary again to argue are they in strict scrutiny class all the way at the top or are they somewhere approaching that class?

Justice William H. Rehnquist: But how about discrimination against Catholics.

Now, they can become Protestants tomorrow presumably and change their status, would you say that is not there for a strict scrutiny?

Mr. C. Christopher Brown: Unless there are First Amendment overtones, yes sir.

You are correct, Your Honor.

What this Court has traditionally done when it has dealt with either strict scrutiny cases or heighten scrutiny cases or whatever we might call it, perhaps sex falls under the same category, generally speaking, the burden has been on the Government to establish why or what the legitimate purposes of the Act are.

That is a very significant fact because if the Government has to come forth and say something, that means a lot to the outcome of the case.

Secondly and I think perhaps Mr. Jones has conceded this point, there have to be actual legislative objectives.

Now, in this situation that would be the Congress has actually have articulated in some fashion or another, what indeed it did intent.

It is very easy for lawyers after the fact.(Voice Overlap)

Mr. C. Christopher Brown: Sometimes can we get that right out of the words they use such the word “dependent?”

Mr. C. Christopher Brown: Indeed you can, indeed you can and if that what is they intended and if they say with own words that is the place to get it.

Chief Justice Warren E. Burger: It is a pretty good source, is it not, the language of the statute?

Mr. C. Christopher Brown: Indeed it is.

I have no problem with that.

That is the best source, I would guess.

Well, let me lead in because that obviously leads into what they did intent.

The Congress has set up a structure which is basically as follows.

First of all, everyone has to prove that a individual was indeed a wage earner covered by the Act, employed for so many months and so forth, so many quarters.

Also they have to apply, also they have to be under either eighteen or twenty-two-and-half to be unmarried.

Those are the non-controversy or preconditions that have to be met.

There are two major preconditions however.

One is that the paternity has to be shown and the second is that the dependency has to be established.

Now, what the Act does is, it sets up a dependency requirement and then it wipes it away for everyone except for two classes.

One class is a class in this case, a certain class of illegitimate children.

The second class consists of adopted children and stepchildren.

Now, there is a special reason for adopted children and stepchildren to have to establish actual dependency.

Indeed, in fact, they were dependent or supported by the deceased wage earners and that is because they have two potential wage earners upon which to claim benefits.

Adopted child has its natural father that he can claim benefits upon or has a new adopted father.

Same goes for stepchildren.

Now, unfortunately, this class of illegitimate children has been lumped in with this latter category.

Unfortunately, illegitimate children much less than having two parents to look to for support after that parent dies or before he dies, generally, often have no parents at all.

Therefore, it seems to be good reason to require adopted children and step children to prove this, but I contend that there is no reason to require this class of illegitimate children to prove this.

Now, what the court below and what the Secretary has argued the purposes is as follows: That really the Congress instructions the Social Security Act, intended to only replace support that was actually lost, that is the only intend to give benefits to the children of fathers who actually did support them prior to the father’s death.

We cite in our briefs the rather explicit legislative history which seems to counter this notion.

There are two documents that say that the Act intents to give benefits to those who did receive support prior to their father’s death and those who owe the obligation to receive support prior to their father’s death.

We contend that that more clearly articulates Congress’s reasoning, not just to give benefits to those who actually got it, but also to give benefits to those who were in a position that they should have actually gotten it, but for some reason their father failed to live up to that obligation.

What the District Court below did in order to add on to that reason is the District Court below assumed that Congress set up a category that those people will not have to prove actual support before the father died if it is more likely that they indeed were supported.

This is a very similar to Frontiero versus Richardson this Court has encountered before.

In other words, legitimate children are presumed generally to have been supported, therefore, to save administrative convenience that category will not have to establish that they were in fact supported.

Now, our briefs establish that assuming that indeed Congress had such a notion which we do not think they do because the Congressional history does not seem to indicate that, but they indeed did have that notion, the Act has very aptly attempted to pursue that purpose.

There is no guarantee.

There are only two studies that seemed of reflect upon this and both result an ambiguous conclusion as to whether or not who is more likely than someone else to have actually been supportive prior to death.

Accordingly, it seems highly likely that even if we assume that Congress did indeed intent to only give benefits to those people who were actually supported prior the death, that they did really accomplish that in any meaningful way.

Justice Harry A. Blackmun: I look to your example of adopted children and stepchildren.

Do I understand you to say that it was likely they were supported before?

(Voice Overlap) are not there a lot of adopted children who are orphans and a lot of stepchildren who have lost a parent?

Mr. C. Christopher Brown: Okay, The Social Security Administration, if you are an adopted child and you are not an illegitimate child in this class presumes that you were in fact dependent upon your natural father, and you can automatically assume you prove his is your father get Social Security benefits under the Act.

Now, you may also want to attempt to get benefits under your adopted father’s wage earner status and in effect you can get the highest of whichever the two maybe.

Justice Potter Stewart: You cannot get both?

Mr. C. Christopher Brown: You cannot get both.

You have the best of both worlds whichever that maybe and we are not complaining about that.

The problem is the Act has lumped our category in with this category that has two potential wage earner sources.

Justice Harry A. Blackmun: You have not answered my observations that a lot of these do not have two potentials?

Mr. C. Christopher Brown: That is true.

That is possibly true, but --

Justice Harry A. Blackmun: Probably, it is often true, is it not?

I certainly have conducted many an adoption of an orphan child and many an adoption of the stepchild without a male or female parent?

Mr. C. Christopher Brown: Okay, I concede that that is true.

Chief Justice Warren E. Burger: Well, then given that most states can seal the identity of illegitimate children, identity of the father in adoption proceedings, your generalization really does not wash as to illegitimate children.

It very difficult for an illegitimate child to find out the identity of the father in most circumstances?

Mr. C. Christopher Brown: Find out the identity of his own father?

Chief Justice Warren E. Burger: Yes.

Mr. C. Christopher Brown: Well, it is in some circumstances.

I do not really think it is in most circumstances, Your Honor.

The Act sets out various explicit routes by which you can establish the paternity of your natural father even though he was not married to your mother, and indeed there are difficulties in pursuing proof of paternity at times.

Now, the Act does not seem to really be dealing with that difficulty.

It may be argued, the logical purpose of this discrimination against illegitimate children could be to bolster prove of paternity, and therefore, avoid fraud.

The District Court did not find that purpose.

As our brief indicates, the Secretary who himself is the one to whom you have to prove to his satisfaction paternity, his own internal claims manual which is his instructions to people as to how to interpret the Act, it does not seem to use as to that purpose.

Prevention of a fraud could theoretically be a purpose in this situation, but Congress has not said it, the Secretary has not said it, the District Court did not say it, and the Solicitor General has alluded to it in the last two pages of his brief, mildly.

If this is a case that requires some sort of heighten scrutiny, it would not seem that that sort of a very evasive and intangible purpose, never articulated by Congress, could indeed be the legitimate purpose upon which this case could be -- the statutory classification be found constitutionally.

Justice Byron R. White: How about the presumption or the notion as you call it that the class you are interested in is normally not supported?

Mr. C. Christopher Brown: There is a presumption of the class that Rev. Norton is not supportive, was not previously supported by the deceased father.

Justice Byron R. White: There is that Congressional presumption.

Mr. C. Christopher Brown: That is --

Justice Byron R. White: Yes.

Mr. C. Christopher Brown: That is one way that the Act could be read.

Justice Byron R. White: Yes.

Let us assume that.

So when you say that there is conflicting evidence --

Mr. C. Christopher Brown: Okay.

Justice Byron R. White: -- around and believe and --

Mr. C. Christopher Brown: Here is an example.

Justice Byron R. White: -- but there is no question about what Congress concluded the evidence showed?

Mr. C. Christopher Brown: If you ascribe that intent to Congress and if Congress indicated that finding by the way it structured the Act.

Justice Byron R. White: Well, assume it did, assume it did?

Mr. C. Christopher Brown: Same Congress assumed then that these other categories were more likely (Voice Overlap)

Justice Byron R. White: Then you are suggesting as we should disagree with Congress because we think we have a better notion of what the facts are?

Mr. C. Christopher Brown: Well, my contention is this.

The only notion that I can see anyone having would be based upon a few very limited sources of statistical information.

Justice Byron R. White: What about Congress so, they have -- Congress has come down and made its own judgment (Voice Overlap)

Mr. C. Christopher Brown: Assuming Congress has made that judgment which I of course did not concede, I think this Court still has a role.

If Congress said -- if Congress made an assumption which is factually incorrect --

Justice Byron R. White: Well, would our test be we just disagree with them or should we ask is there some basis, any basis in fact for the congressional conclusion?

Mr. C. Christopher Brown: Well, the Secretary has had the chance to show you whatever basis Congress might have had.

You have and if -- he has had the chance, you do not have to ask him that.

He has all the opportunity.

Justice Byron R. White: Yes.

I know, but what you are telling us now there is quite of bit of basis for congressional conclusion, namely the facts are disputed.

There a lot of evidence on both sides.

Mr. C. Christopher Brown: No, there is evidence to indicate that they can -- it is really not clear who is more likely to be a supporters than not.

There is evidence to indicate that there is no ground for any assumption.

Justice Byron R. White: There is evidence to indicate that there is?

Mr. C. Christopher Brown: There is this one study which was done and it is not conclusive says “That 89% of absent illegitimate fathers, we call them that, do not support their children, whereas 81% or 82% of absent legitimate fathers do not support their children”.

Okay, so there is an 8% difference between these two classes in this one study which was conducted in California and is referred on the brief.

My contention is that 8% does not mean much and there is really nothing upon which you can basic conclusion, a presumption such as this and especially not enough when you talking about illegitimate children.

It maybe enough when you are talking about Minnesota farmers, but it is not enough when you are talking about illegitimate children.

8% is not enough to base a presumption upon.

Justice Lewis F. Powell: Mr. Brown, would the presumption had been rebutted in this case if the father had simply written a letter to the mother inquiring how that son was?

Mr. C. Christopher Brown: That is correct Your Honor.

Justice Lewis F. Powell: There are a lot of who would have done it?

Mr. C. Christopher Brown: That would have done it and problem is that people who are fathers of illegitimate children do not take to the habits of writing letters and going through the formalities that a lot of middle class people traditionally do.

So, as a practical matter I wish that happened more often, but it does not happen and that makes it more difficult for these people to establish their right to benefits.

I see no great difference between this case and Frontiero case.

That was a case which had the same kind of presumption with respect to service people and did man have to establish -- a mail service man was presumed that his spouse, his wife was dependent upon him, he got benefits and the opposite was the case for women.

If a woman was a service person, she had to establish specifically that her spouse was dependent upon her in order to get fringe benefits from the service.

It seems to be the very same case in that respect, and I would request the very same result which was a reversal and finding of unconstitutionality of this statutory scheme.

Chief Justice Warren E. Burger: Mr. Brown, you seem to disparage somewhat the idea that the element of fraud was present in these cases, but for a number of centuries, not year, centuries, the explanation for not allowing illegitimate children to inherit from a father was the fraud element, was it not?

Is it not part of the history of (Voice Overlap)

Mr. C. Christopher Brown: It is probably correct and I think that there are --

Chief Justice Warren E. Burger: Probably, there is any doubt about it?

Mr. C. Christopher Brown: I do not think that is the only reason.

There is another reason which is that historically it was felt that illegitimate fathers do not want to give benefits to bastards and I think that was probably another historical reason.

There was a presumption -- tested laws presumed that illegitimate fathers do not want their illegitimate fathers do not want their illegitimate children necessarily to get their money.

Chief Justice Warren E. Burger: Most of the states who have statutes permitting the recognition of the illegitimate child in giving certain rights and are not the statutes were concerned with patterned on those statutes, that is the acknowledgment in writing for example?

Mr. C. Christopher Brown: Well, there are three ways.

They are basically the various ways an illegitimate child can become illegible here.

One is to satisfy his own states and tests his statute.

In Maryland for instance if Gregory Norton --

Chief Justice Warren E. Burger: That maybe, that maybe by having a written acknowledgment from the father?

Mr. C. Christopher Brown: Indeed and in Maryland for instance, all you have to do is openly -- have openly acknowledge that someone is your father.

Gregory Norton, Sr. today, he died after 1970, I think could establish, satisfy that test.

here are many different tests, but it is not impossible to prove paternity.

It is difficult to prove paternity but not impossible.

The Secretary in his own, you know, the instructions that he gives to his workers specifically says; first, determine paternity, and get some factors that he relies when determining that and then secondly, if they have to fall under this class determine whether or not they were supported by or lived with.

There is the Secretary is the one charged with this duty in establishing paternity has indicated in no way at all that indeed the support or residence requirement is used as another way to bolster proof of paternity.

There maybe a illegitimate basis in another setting, but it does not seem to be so here.

I have no further comments sir.

Chief Justice Warren E. Burger: Do you have any thing further Mr. Jones?

Rebuttal of Jones

Mr. Jones: Yes, I would like to make three quick points Mr. Chief Justice.

Chief Justice Warren E. Burger: You have just have three minutes to do it.

Mr. Jones: I do, one minute in each.

First, opposing counsel is incorrect in stating that it is sufficient if the illegitimate child meets the state in test of his statute.

The correct statutory analysis is set forth in the appendix at pages 79 through 83 of the decision of the District Court in the Norton case and also, that is the long standing administrative construction as we point out in footnote 14 of our Norton brief at pages 38 and 39.

Secondly, the purpose of the statutory exclusion was plainly that of limiting payment of benefits to children who were dependent.

As we point out on page 34 of our brief, the Act itself limits benefits to children who were dependent upon the wage earner.

The Senate Report on the amendments enacting this provision, state just correctly describe the Act as a national program that is intended to pay benefits to replace the support lost by a child when his father dies and this Court recognized this statutory purpose in its opinion in Jimenez against Weinberger where it pointed out that the primary purpose of the program is to provide support for dependents of a wage earner and third, the validity of the presumptions of dependency for the categories of children who do not have to prove dependency are we think broadly rational for the reasons set forth at pages 38 and 39 of our brief and I would further point out that if the evidence is conflicting, if in some instances those presumptions may not be broadly rational, nevertheless, that boils down simply to a claim that the statute is over inclusive in its provision of benefits, not under inclusive for the reasons I set forth in my argument.

Mere over inclusiveness would not result invalidity of the statute.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Jimenez v. Weinberger - Oral Argument

Thu, 23 Aug 2012 18:24:58 +0000

Case:

Jimenez v. Weinberger

Media File:

72-6609_19740318-argument.mp3

Related Transcript:

72-6609_19740318-argument

Transcript:

Argument of Jane G. Stevens

Chief Justice Warren E. Burger: We’ll hear arguments first this morning in number 72-6609, Jimenez against Weinberger.

Mrs. Stevens, you may proceed whenever you’re ready.

Ms Jane G. Stevens: Mr. Chief Justice and may it please the Court.

The discrimination challenged by the plaintiffs in this case is a discrimination between legitimate children born after their fathers become eligible for Social Security benefits and illegitimate children born after their fathers become eligible for Social Security benefits.

If Eugenio and Alicia Jimenez, the plaintiffs herein, were legitimate children, they would now be receiving Social Security benefits.

But because they are illegitimate, they are absolutely barred from receiving benefits, even though they have lived with their father all their lives and have been supported by him all their lives and that he has been their sole caretaker since their mother left the home.

This discrimination between legitimate and illegitimate children is arbitrary and irrational.

It is a violation of the equal protection guarantees as embodied in the Due Process Clause of the Fifth Amendment.

The Secretary of Health, Education, and Welfare defends the discrimination on two grounds.

That it is reasonable because illegitimate children are less likely to have received support from their fathers than legitimate children, and that it serves the valid governmental purpose of preventing fraud.

In fact, it is not rationally related to the purpose of the Social Security Act and it is not a rational means of preventing fraud.

Justice Harry A. Blackmun: Mrs. Stevens, if all children, legitimate as well as illegitimate, born after the date of onset of disability were excluded from coverage, would you be here?

Ms Jane G. Stevens: I would be here, but on slightly different posture.

I think that that exclusion also would be irrational in light of the purpose of the Act.

In fact, before 1960, all children had to have been born and have met these requirements before the father became disabled or aged.

But, Congress made a change in 1960 to allow children -- legitimate children to prove their dependency and their other eligibility requirements at the time application was filed on their behalf.

And now, as a result of that change, only illegitimate children are excluded.

Justice Harry A. Blackmun: Well, is your posture then one that the difficulty with the statute is that it’s overly inclusive?

Ms Jane G. Stevens: Well, I think, Your Honor, that the exclusion here, if I may put it that way, is “overinclusive.”

The Government says that they have excluded, afterborn, illegitimate children in order to prevent fraudulent claims and they have excluded with the possibly fraudulent claims a large group of, in fact, valid claimants.

Chief Justice Warren E. Burger: Doesn’t that often happen in line drawing?

Ms Jane G. Stevens: I believe it does happen, but I think that when there are less drastic means for sorting out the fraudulent from the valid claims, that those less drastic means have to be employed.

The hearing that would be required would be relatively simple.

The Social Security Administration is clearly able to distinguish between fraudulent and non-fraudulent claims and the reason it’s clear, Your Honor, is that there are 24 states that allow illegitimate children to inherit from their fathers by the laws of intestate succession.

And in those states, children are defined the way these children are defined, that is children born and otherwise eligible after their fathers become eligible for benefits are allowed to present their claims and the Secretary seems, in those states, perfectly capable of sorting the fraudulent from the non-fraudulent claims.

Therefore, it is our position that this blanket exclusion cannot be necessary to sort out the fraudulent claims.

Chief Justice Warren E. Burger: When you speak of fraudulent claims, are you referring to those that would involve the question of paternity?

Ms Jane G. Stevens: That would be, I believe Your Honor, the major problem of proof because --

Chief Justice Warren E. Burger: That would be the major, you say?

Ms Jane G. Stevens: There is also the issue or the possibility of a question of whether or not the child had been supported, but that is something that children who were previously born have to prove too.

So the only possible fraud that the Government could be depending on would be children who are not, in fact, the children of the fathers.

And as this Court has pointed out, although it is difficult to prove paternity, the paternity proof cannot be an excuse for a blanket exclusion of an entire class.

Justice Potter Stewart: In those states that allow inheritance by illegitimate children, such illegitimate children are not ineligible under the federal statute, are they?

Ms Jane G. Stevens: That is correct, Your Honor.

They are not ineligible.

Justice Potter Stewart: That is, if they have been recognized by the state courts.

Is that it, or if --

Ms Jane G. Stevens: If they lived -- if they merely live in a state in which they would be allowed to inherit by the laws of intestate succession, they are eligible to receive these benefits.

Justice Potter Stewart: Regardless of whether or not they’ve been found to be the illegitimate children by the state court?

Ms Jane G. Stevens: I imagine that in the probate proceedings that might be an issue.

Justice Potter Stewart: Yes.

Ms Jane G. Stevens: But they are eligible regardless of what has happened prior to the death of the father.

I think --

Justice Potter Stewart: But in those states, in other words, the federal administrator and the administrative process has the aid of the fact-finding of the state courts, isn’t that right?

Ms Jane G. Stevens: Not necessarily, Your Honor, and I think this points up a very important factor of this law.

The law depends on the law of intestate succession for giving benefits to children whose parents are still alive and so, the process by which the state will make that decision has not yet been affected.

In fact, the law -- this federal law, this federal program is depending on the state law of intestate succession for the disposition of benefits while the father is still alive.

So that that process has not yet come into play.

And I think that if the federal statute were to depend on a state law for definition of familial obligation, it would be reasonable for the federal statute to depend on laws that controlled support by the father while the father was still living, and this Court said only last year that once a legitimate child has been given a right to support by the father, an illegitimate child must be given that right also.

And I think that that decision in Gomez v. Perez should be controlling in this situation.

It’s not only -- in fact, the plaintiffs in this case will be eligible to receive benefits under this section after their father dies because his acknowledgment of the children while it came after the onset of disability and, therefore, does not qualify the children now will have come before his death.

And so, it will qualify them after he dies in an irrational and arbitrary manner.

Justice Potter Stewart: What kind of benefits are these involved here?

He is still living and he is what, disabled?

Ms Jane G. Stevens: He is living.

He is disabled.

Yes, sir, the disability benefits.

Justice Potter Stewart: Disability benefits that go directly to the -- it would go directly to the legitimate children and this isn’t any sort of an aid to dependent children program, is it?

Ms Jane G. Stevens: No, this is the Social Security OASDI Program and they would -- the benefits would go to the children, to these illegitimate children.

Justice Potter Stewart: Directly?

Ms Jane G. Stevens: Directly, probably in his name because he is their guardian.

Justice Potter Stewart: It will go to --

Ms Jane G. Stevens: The issue that the Government depends on largely that illegitimate children are less likely to have been receiving support than legitimate children and that, therefore, this is a rational distinction is, in fact, irrelevant in this case because the section at issue makes dependency or the right to support a requirement of eligibility for all children.

The general likelihood of illegitimate children to support is completely irrelevant because no one, legitimate or illegitimate, can receive benefits who doesn’t have the experience of or the right to support.

And the right to support is adequate because legitimate children never have to prove dependency.

Illegitimate children under Section 216 (h) (3) have to have been acknowledged or declared by a court to be eligible to be their father’s children or beneficiaries of a court support order and any of these children have a right to support.

Those who have not been acknowledged have to have had experience of support.

So, the general likelihood of illegitimate children to receive support cannot be relevant even if this Court would remove this bar excluding, afterborn illegitimate children, no child would become eligible who did not have the right to or the experience of support.

Therefore, that argument on the part of the Government is completely irrelevant.

Chief Justice Warren E. Burger: In your view, is it irrational to have a presumption that legitimate children are likely to be receiving support and more likely to be receiving support than illegitimate children?

Ms Jane G. Stevens: I’m not contesting that presumption, but the presumption that includes them and excludes illegitimate children on the same basis are presumptions that operate generally for the entire class and doesn’t allow any of them to offer proof of their particular situation, I believe, has an irrational effect.

Chief Justice Warren E. Burger: In other words, if illegitimate -- if legitimate children did not -- were not required to prove the dependency status, but illegitimate children were, you would apparently have no trouble with that?

Ms Jane G. Stevens: Well, Your Honor, I believe that, in fact, illegitimacy is a suspect classification and would request that this Court recognize illegitimacy as a suspect classification.

And if it were so recognized, then a requirement that illegitimate children prove dependency when legitimate children did not have to, I think would be a discrimination, because in that case, the state would have to prove a stricter stand -- would have to defend the requirement against a stricter constitutional standard.

The argument that the Government is left with because of the irrelevancy of the support is the prevention of fraud argument.

And I think that in recent cases, this Court has indicated that an exclusion of an entire group of potential recipients solely for the purpose of preventing fraud and promoting administrative efficiency is not permissible.

This is to create an irrebuttable presumption essentially identical to that created -- to that invalidated by this Court in the United States Department of Agriculture versus Murry just last year.

In Murry, a Section of the Food Stamp Act declared ineligible any household containing a person over 18 years of age who’d been claimed as a dependent for federal tax purposes by someone not eligible for food stamps.

And this Court found that that Section was not a rational measure and that it rested on an irrebuttable presumption often contrary to fact and, therefore, violated due process requirements.

And I think that the irrebuttable presumption which is created in this case, which excludes the plaintiffs and others like them, is similarly often contrary to fact and a violation of due process because these children are not allowed to offer the proof that they meet the requirements of Section 216 (h) (3).

If they were legitimate or if they have been born before their fathers became eligible for benefits, they would be allowed to offer their proof and, should it be satisfactory to the Secretary, they would be found eligible for benefits.

Now, they are totally and absolutely barred from offering that proof.

The discrimination against illegitimate children, here challenged, violates the constitutional guarantee of equal protection judged by the traditional standards because it’s not rationally related to the purpose of the Act.

The purpose of the Act is not simply to replace support, lost at the moment the wage earner creases being able to work.

If that were true, legitimate afterborn children would still be barred, and they are not.

I think that the standard must fall for still another reason and that is that it is a discrimination based on the status of illegitimacy and illegitimacy is properly a suspect to class.

Several weeks ago, this Court in Johnson versus Robison indicated the traditional indicia of suspectness and said that the CO class, at issue in that case, did not possess an immutable characteristic determined solely by accident of birth.

But illegitimate children possess exactly that, an immutable characteristic determined solely by the accident of birth.

Justice Potter Stewart: Of course, in many states, illegitimate -- children who were born illegitimate can be legitimated through --

Ms Jane G. Stevens: That is true, Your Honor, but not at their own desire or control.

They can be legitimated, but their parents who put them in the illegitimate status to begin with must make the decision to do that.

The child --

Justice Potter Stewart: Unlike race or sex or maybe other things, say, being born abroad for example, it’s not immutable to that extent at least?

Ms Jane G. Stevens: It’s not as immutable, but to the degree -- in terms of the control of the person so-classified, it is immutable.

There is no way an illegitimate child can have the status changed and if --

Justice William H. Rehnquist: Well, of course by that standard, I suppose that a conscientious objector would argue that he has no control over his own status.

That’s the way his conscience reacts.

It’s not a volitional choice on his part?

Ms Jane G. Stevens: I would think that that kind of conscious -- that the choice of one’s conscience is something that one has more control over, although you wouldn’t change it at a whim to obtain a benefit.

It is something that you may rethink and something that you may change.

A status at law over which you have no control is something that you cannot change.

Justice William J. Brennan: Well, wouldn't the -- wouldn't the father have increased benefits if this child were legitimated?

Ms Jane G. Stevens: If this child received benefits, the family all together would have -- the family in which --

Justice William J. Brennan: Perhaps I don’t understand the schemes.

I had the impression that were this child eligible, that would mean the father’s payments would be larger.

Is that right?

Ms Jane G. Stevens: The child would receive benefits.

Justice William J. Brennan: The child, is that it?

Ms Jane G. Stevens: That’s right.

Justice William J. Brennan: Well now, if this child were legitimated, would it now receive benefits?

Ms Jane G. Stevens: Yes.

Justice William J. Brennan: It would?

Ms Jane G. Stevens: Yes, but there is no way that the child can be legitimated now because the mother of the child left the father years ago.

The only way that he could legitimate the child would be to marry the child’s mother.

Justice William J. Brennan: Could he adopt -- suppose he had adopted the child?

Ms Jane G. Stevens: It’s not certain that he could adopt the child, Your Honor, but he certainly -- he could attempt to adopt the child.

Justice William J. Brennan: Well, if he succeeded, would the child then be eligible?

Ms Jane G. Stevens: I think that the child would be eligible if he did that.

However, there is -- it isn’t clear that he could adopt him and the Secretary has suggested that the purpose of this entire Section is to discourage the manipulation of events solely in order to obtain benefits.

And if he were to adopt this child for no other reason than to obtain benefits, surely, this would be the kind of manipulation of events that the Secretary says the Section is meant to prevent.

Justice William J. Brennan: Well, that’s then to say that nothing can be done to make this child eligible for benefits if illegitimate at the time of the or born after the injury of the father that suffers?

Ms Jane G. Stevens: If he were not to adopt him?

Justice William J. Brennan: Yes.

Ms Jane G. Stevens: Then there would be no other way except to remove this bar.

That’s true, Your Honor.

Chief Justice Warren E. Burger: But your view of what the Secretary would do in case of an adoption that is you suggest he would regard that as a manipulation, his view is certainly not an immutable view of the matter, is it?

Ms Jane G. Stevens: He’s -- the Secretary’s?

Chief Justice Warren E. Burger: Yes.

Ms Jane G. Stevens: I hope not, Your Honor.

However, in Stanley versus Illinois, I believe that this Court stated that to force a father to adopt his natural child in order to go around a burden that was placed on him only as the father of an illegitimate child would be an unjust and arbitrary burden to place on him when a father of a legitimate child in a similar situation would not have this burden.

It’s also true, Your Honor, that this -- that the father of the children in this case is an elderly, disabled, impecunious gentleman, and it’s not certain that the courts of Illinois would allow him to adopt the child for those reasons.

The other indicia of suspectness that the court pointed to was that the -- was the saddling of a class with disabilities in the history of purposeful unequal treatment and a position of political powerlessness so as to command extraordinary protection from the majoritarian political process.

And it is surely clear that illegitimate children are in a situation of political powerlessness, although they are frequently legislated against as a group, they have no legislative power as a group.

They are a discrete and insular minority who have no political power to defend themselves against this kind of arbitrary --

Justice Thurgood Marshall: Do legitimate children have much political power?

Ms Jane G. Stevens: I think that they have more political power, Your Honor, because they aren’t discriminated against in this way.

There are situations in which legitimate children are discriminated against as children as opposed to adults, but there are more valid and reasonable distinctions between children and adults than between children who differ only because of the marital status of their parents.

The children in this situation -- the illegitimate children are classified solely by an accident of their birth, and they cannot change it.

They have no control over it.

They have suffered as a result of this classification, a stigma from which they will never recover.

And stigma is, I believe, a characteristic which this Court has sought to counteract by granting stricter judicial scrutiny to those classes of people who have suffered from that kind of stigma, particularly in the situation where the law in question will perpetuate the stigma and perpetuate the historical suffering of the class, as this will do.

Legitimate siblings of these children will be able to receive benefits.

In fact, they have legitimate siblings who are receiving benefits and to distinguish between the legitimate and illegitimate siblings is only to perpetrate the stigma that these children must suffer because of their parent’s marital status.

The statutory section challenged here should, therefore, be subject to strict scrutiny and be upheld only if it is crucial to a compelling state interest which it clearly is not.

The Government has been able to show indeed no rational purpose for this classification, much less a compelling state purpose.

The plaintiffs in this case are identically situated to children who would be able to receive benefits, except for the fact that their father and mother never married.

And this fault, if you will, of their parents should not be used to deprive them of rights which they would otherwise have.

I’d like to reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well, Mrs. Stevens.

Mr. Boggs.

Argument of Danny J. Boggs

Mr. Danny J. Boggs: Mr. Chief Justice and may it please the Court.

I would like, if I might, to begin by tracing more exactly what the statutory scheme at issue here is.

I believe it has become somewhat confused during the opposing argument and I believe that it is crucial to perhaps the key point of disagreement between the two sides here which is on the purpose of the Social Security Act as a whole.

We contend that while any look of the Social Security Act can tell you that it does not derive with the Aristotelian logic from some first principle.

The basic purpose is to replace support which was lost due to the act of disability, retirement, or death.

Counsel opposite contends that to the contrary, that its basic purpose is to pay people who have a right to support or who have actual support.

So, let us look now at what the statutory scheme actually says.

It begins that in order to gain benefits one must be a child and child is then defined as, essentially, persons who may inherit under state intestacy laws as a child which brings in essentially all legitimate children and it brings in those illegitimate children who meet the various state law qualifications which entitle them to inherit.

In three or four states, this is any illegitimate child from the moment of birth.

In most states, I believe as Your Honor asked, it requires some statutory action.

It may be merely a written acknowledgment.

It may be merely open and notorious holding out.

It may require a certain court action, but in any event, the child had to meet one of these qualifications.

Now, any of these qualifications would give it the right to inherit, which as we have indicated in our brief was one of the original indications of the Social Security Act.

The payments were made not to persons, but to an estate and that, specifically, this estate payment was phased out in favor of continuing payments basically to those people who could inherit.

Then, in 1965, Congress said “Well, there are other people who we feel should be able to get benefits” and despite an advisory counsel report which they rely on, which did use the phrase “right to support or experience of support,” they wrote in specific statutory criterion and they said, “if before the parent became entitled,” that is before he became disabled, before he died, or before he became actually 64, I think, because they wanted to give you a one-year period before that 65, but if before that, one of these things has happened then you can get benefits.

If your father acknowledged you in writing.

No judicial scrutiny required, a simple acknowledgment, if there was a paternity order, if there was a support order, or if he was living with you or contributing to your support.

Now, in any of these cases, it could be a reasonable assumption or a preponderant assumption that you were getting support at that time and that, therefore, your lost support when that event took place.

But I would point out that contrary to the argument made by counsel opposite, in the case of the acknowledgment or in the case of the simply “living with,” there is no necessary experience of support.

There is no necessary right to support.

There is, rather, the congressional judgment that this class of people probably lost support.

I would further point out that this kind of judgment runs throughout the law.

For example, legitimate children who would otherwise qualify do not qualify, if they were adopted by someone else because in such a case, I think Congress reasonably judged that they probably did not lose support.

As another example, children who become married even though they may be under 18, they may still have a right to support; they may still have an experience of support.

But, in judging that group, Congress decided that those people probably did not lose support and, therefore, that class could be excluded.

So that what we have here is a general congressional scheme which can be traced, I think, through categories of the Social Security law far outside children and I think one can examine almost any provision and find this kind of judgment, which says the question we look at is who is likely to have lost support and --

Justice Thurgood Marshall: Your point is no illegitimate children are excluded.

I mean, after this point of the Act, as you talk about.

Is that right?

Mr. Danny J. Boggs: Well, not -- no illegitimates, illegitimates who fail any one or all of those four tests.

Justice Thurgood Marshall: Are any or all illegitimate children excluded up to this point at any space?

Mr. Danny J. Boggs: Are all -- no, Your Honor.

Justice Thurgood Marshall: Well, why after the man becomes disabled did --

Mr. Danny J. Boggs: Well --

Justice Thurgood Marshall: Did Congress do it?

Mr. Danny J. Boggs: I would state, Your Honor, that the fact that the -- the line I was beginning was the real item which needs to be explained is not why we deny payments to these illegitimates because, by definition, since they were born after the man became disabled they could not have lost support due to his disability.

The question rather is why do we allow payments to those persons who can inherit, which includes both legitimates and illegitimates.

And as I have suggested, persons who can inherit under state law essentially also suffer a loss that the Social Security Act, we believe, may provide compensation for because, since the father could not continue earning and provide an estate since the Social Security Act no longer adds to that estate as it did up until 1939, those persons who can’t inherit, whether they’re legitimate or illegitimate, those persons who can’t inherit do suffer this loss for which we believe there can be compensation.

So that, essentially, we base the reasonableness of this on two points.

The first is that it’s a reasonable judgment to say that, in general, people --

Justice Thurgood Marshall: Well, before--

Mr. Danny J. Boggs: Yes.

Justice Thurgood Marshall: Before the man becomes disabled?

Mr. Danny J. Boggs: Yes, sir.

Justice Thurgood Marshall: Right?

Mr. Danny J. Boggs: Before he becomes disabled.

Justice Thurgood Marshall: There’s no distinction between illegitimate and legitimate children in that illegitimate children are not excluded per se.

Mr. Danny J. Boggs: Not per se.

They may have to meet one of various tests which legitimates would not have to meet, so the --

Justice Thurgood Marshall: Not per se.

Mr. Danny J. Boggs: For example--

Justice Thurgood Marshall: And then once the man is injured, that all changes.

Mr. Danny J. Boggs: No, sir.

We would suggest that it does not.

Once the man is disabled or dead or reaches age 65 --

Justice Thurgood Marshall: Let’s leave dead out.

Dead is not in this case.

Mr. Danny J. Boggs: Well, it’s not in this case but I would suggest briefly, Your Honor, that if --

Justice Thurgood Marshall: Well is a man, once he --

Mr. Danny J. Boggs: If the rule suggested by counsel opposite were adopted which I take it would mean that any of these tests could be met after the entitling event, for example a paternity order after death would qualify a child.

Justice Thurgood Marshall: I’m just -- on one narrow point.

Mr. Danny J. Boggs: Alright, Your Honor.

Justice Thurgood Marshall: Once he becomes disabled, any illegitimate child born a moment after that is in bad shape.

Mr. Danny J. Boggs: Well, Your Honor, it --

Justice Thurgood Marshall: Right?

Mr. Danny J. Boggs: It depends on where he lives.

First of --

Justice Thurgood Marshall: In Illinois.

Mr. Danny J. Boggs: In Illinois, he has some difficulties, yes, Your Honor.

Justice Thurgood Marshall: Difficulties, why?[Laughter]

Mr. Danny J. Boggs: Well, yes, sir.

Justice Thurgood Marshall: Well, why?

Mr. Danny J. Boggs: Because, Your Honor, he cannot have lost any support as a result of the disability --

Justice Thurgood Marshall: Yes, but I’m referring to the point “on the day after.”

Mr. Danny J. Boggs: Well, Your Honor, I suggest that the Social Security law, as with many laws are replete with that type of line.

For example, a widow, a wife --

Justice Thurgood Marshall: Let me ask you, why?

Mr. Danny J. Boggs: And the reason, Your Honor, is that he cannot have lost any support.

If he was born the day before, he would have had a reasonable expectation to have been supported or lost support because of that disability.

Justice Potter Stewart: But that would be true of a legitimate child as well?

Mr. Danny J. Boggs: Yes, it is, Your Honor.

That is the reason that we make and perhaps are required to make the additional argument with regard to inheritance.

Justice Potter Stewart: Alright.

Mr. Danny J. Boggs: So that this -- this we believe is not simply a discrimination between a legitimate and an illegitimate.

It is a discrimination between persons who can inherit and persons who cannot inherit a distinction in which this Court in Labine versus Vincent has upheld in allowing that distinction to be based in part upon the question of legitimacy of birth.

Justice Thurgood Marshall: What about the discrimination between the illegitimate child born a day before and illegitimate child born a day after?

Mr. Danny J. Boggs: Well, Your Honor, we believe that on the face of that distinction that there is no equal protection argue -- no equal protection problem with that, that that arises in any type of line drawing proposition.

For example, if I could give you two other examples from the law.

One, we allude to in our brief which is that a woman who is married to a man who dies within nine months of their marriage cannot get widow’s benefits.

Now, it is true that at eight months and thirty days I don’t know that her dependency is any less than at nine months and one day.

But, we believe Congress had a reasonable purpose in that case to prevent people from getting benefits by marrying people essentially on their death bed and you have to draw a line.

Another example which is even closer to this is as follows.

A husband or a parent, in order to receive benefits on the account of his wife or his child, must have been receiving one-half of his support at the time of entitlement, just like in our case, at the time of disability.

So, for example, a man who is not dependent on his wife when she becomes disabled but does become dependent on her later, he looses -- he just cannot receive Social Security benefits, and the reason is that at the time of her entitlement, he lost no support.

If he had been dependent on or the day before she became disabled or became age 65, he would receive benefits.

Now granted, in any given case, the result may appear harsh.

As a matter of fact, any time a person misses out under just one part of a rule, he can easily say, as counsel does here, “we could qualify if you would takeout this one rule.”

But as we, I believe, have shown, this distinction is one that is rationally related to the purposes of the Social Security Act which is to replace support which was lost at the time the person ceased earning, that is death, disability, or age 65.

We would also like to take issue with the contention that the primary purpose of this is merely administrative efficiency, merely to prevent fraud.

They’ve argued this at quite considerable length and while certainly, we believe that it has an additional aspect which is that an action such as an acknowledgment may more likely be considered reliable or more likely considered valid if it occurs at a time when that action in itself is not the thing which creates an entitlement to benefits and, in addition, when that action carries with it no other accompanying burdens or reasons.

For example, in the adoption instance which was alluded to somewhat, the Secretary would have no objection, in fact, to an adoption where a court scrutiny would be required that it would be in the child’s best interest.

An adoption would also place the parent under a number of other burdens and obligations, and give the child other rights other than simply qualifying him for Social Security benefits.

So that in that case, the statutory criteria are tied to other indicia which would indicate the family relationship.

Finally, the point was argued that this distinction is made only because illegitimates are less likely to have received support than legitimates and, thereby, raising the idea that this should be in fact judged on an individual basis.

But as we have pointed out, it is not a distinction generally between legitimates and illegitimates on the basis of their having been likely to have received support.

Those persons born after a death, disability, or age 65 could not have received support, and that is the basic distinction.

Then, those legitimates and those inheriting illegitimates or people who are legitimated, who thereby become legitimate even if in their state they could not have inherited as illegitimates, any of those people who thereby acquire inheritance rights, thereby, are also allowed to receive Social Security benefits.

Justice Potter Stewart: Mr. Boggs, the District Court in this case upheld that this legislation solely, as I read its opinion upon the proposition that is designed to prevent fraud.

Do you read its opinion that way?

Mr. Danny J. Boggs: That’s the primary basis on which it relied, perhaps the only basis on which they relied, whether -- I, in fact, don’t know whether the argument we’re presenting here was presented in that complexity to that --

Justice Potter Stewart: No, I’m referring just to their opinion, to the court’s opinion.

Mr. Danny J. Boggs: Yes, I’m saying that that’s what one could gather from their opinion.

Justice Potter Stewart: And you haven’t spent -- maybe I missed it, you haven’t devoted much time on your argument to that.

Mr. Danny J. Boggs: No, we -- I would say that we tried to present what we believe is the strongest argument for upholding it, which is the one that we have presented to day.

Certainly, we recognize that there are severe problems with an argument based solely on a discrimination based on a fraud rational when additional investigation may be required in some circumstances.

We think that -- however, when the distinction made is based upon a status, such as the acknowledgment or the contribution occurring before the entitling event, we believe that that is not solely a fraud-based rational, but it is a rational based on what the basic entitlement of the Social Security Act is.

Justice Potter Stewart: Well, except I think that you’ve agree that the justification for legislation that would be based upon the support not having been available prior the event has nothing to do with legitimacy or illegitimacy.

It just has to do with being afterborn?

Mr. Danny J. Boggs: Yes, sir.

Justice Potter Stewart: And, therefore, that certainly doesn’t support this legislation, does it?

Because it doesn’t -- it’s wholly irrelevant to legitimacy or illegitimacy.

In other words, an afterborn legitimate child who’s never had any support --

Mr. Danny J. Boggs: Right, he does not --

Justice Potter Stewart: -- by definition because he hasn’t been in existence, he fully shares under the statute?

Mr. Danny J. Boggs: He does not recover, however, because of his lost support at the time of the disability.

He recovers because of his ability to inherit, that would be our understanding.

Justice Potter Stewart: But he gets --

Mr. Danny J. Boggs: I would suggest --

Justice Potter Stewart: But if the hypothesis is that he’s never had any support, never had any expectation or fact of support since he wasn’t in existence and hadn’t been born that cuts across legitimate and illegitimate children.

It’s equally true of both.

And I don’t see how you can argue that it supports this distinction between legitimate and illegitimate children.

Mr. Danny J. Boggs: Well, Your Honor --

Justice Potter Stewart: That fact--

Mr. Danny J. Boggs: I take it that you’re then saying that, it would appear to me that --

Justice Potter Stewart: I’m just asking you.

Mr. Danny J. Boggs: Okay, we would indicate that -- as we pointed out in talking about the 1939 Amendments, at that time, persons who could have gotten money from the parent’s estate, that possible benefit was taken away and instead life payments were made as a substitute for that.

So that in our case, the legitimate and the illegitimate who can inherit in half the states and more if he is legitimated, that child by the 1939 Amendments lost his potentiality to get that money from the parent’s estate and we feel it was not irrational at all for Congress to say that those children, though perhaps they do not qualify under the theory we just stated, also have a right to receive similar benefits during life.

So, that would be the way that we make that distinction.

Justice Thurgood Marshall: What happens after he dies, with the illegitimate child?

Mr. Danny J. Boggs: Your Honor, a death benefit would be paid.

Again, payments after death would be made to persons who met the qualifications at the time of death.

So that, for instance, these children would in fact be able to receive benefits after their wage earner died because in that case, they would have -- that assuming he meets the test which is that he was supporting them, he was contributing to their support at the time of his death, those children then did lose benefits, did lose support and that class of children probably would have lost support as a result of the entitling event.

Justice Thurgood Marshall: So, they do inherit money, these illegitimate children?

Mr. Danny J. Boggs: No, Your Honor.

They do not inherit, they do not inherit.

They receive --

Justice Thurgood Marshall: They get it after death?

Mr. Danny J. Boggs: No, they receive continuing benefits.

They receive --

Justice Thurgood Marshall: After death?

Mr. Danny J. Boggs: Yes, they receive --

Justice Thurgood Marshall: The illegitimate children?

Mr. Danny J. Boggs: If he met one of these tests.

Justice Thurgood Marshall: Right, but they can get it before death, right?

Mr. Danny J. Boggs: Because between --

Justice Thurgood Marshall: No, because of the inheritance law.

Mr. Danny J. Boggs: No.

Justice Thurgood Marshall: Well, that’s what you just said.

Mr. Danny J. Boggs: No, Your Honor.

Justice Thurgood Marshall: You said the reason you didn’t give the illegitimate children was because they couldn’t inherit.

Is that what you said?

Mr. Danny J. Boggs: That’s the reason they do not receive that particular kind of benefit, but for example, if they were not acknowledged or if he was not contributing to them, they would not receive the death benefits either.

Justice Thurgood Marshall: These children -- well, I just want my facts straight.

Mr. Danny J. Boggs: Alright.

Justice Thurgood Marshall: These children here --

Mr. Danny J. Boggs: Eugenio and Alicia --

Justice Thurgood Marshall: If they’re alive or if this man dies, they will get Social Security benefits.

Right or wrong?

Mr. Danny J. Boggs: If his actions to date constitute an acknowledgment, they would.

If the question is his contribution, then his contribution would have to continue until the time of their death -- at the time of his death.

But, if his actions to date constitute an acknowledgment, then they would receive Social Security benefits.

We believe that the indications that we have set out thus far do show that the statute has, while perhaps not as I’ve indicated, a basis in Aristotelian logic from a first principle.

As this Court has said, in the field of social benefits there may be a need for rough accommodations though they may be somewhat illogical under a strict logical test or unscientific.

The social -- in the Social Security Act, and not just in the children sections, Congress has made many distinctions as we pointed out in the wives’ benefits, in the husbands’ benefits to try to limit benefits to persons who probably had lost support.

As yet another example, children beyond the age of 18 when they may have no right to support, when they may have no experience of support individually still receive benefits if they are students because Congress has judged that, on the whole, those people are more likely to have been supported.

Now, a 21-year-old who is not a student cannot come in and offer proof that he was supported, cannot offer proof of his individual dependency because Congress has made the judgment that that is the classification that is to be made.

And so, we would urge upon the Court here that this is not, in fact, a distinction made against illegitimate children on the grounds of their illegitimacy.

It is a distinction made, first, between those who are likely to have lost support and those who are not likely to have lost support at the time of the entitling event.

And that, secondly, it is a payment which is made to persons who can inherit under valid state laws and who, thereby, suffer a loss which we believe Congress is entitled to compensate for.

Justice Lewis F. Powell: Mr. Boggs.

Mr. Danny J. Boggs: Yes, sir.

Justice Lewis F. Powell: Does Illinois require the father or an illegitimate child to support it?

Mr. Danny J. Boggs: I believe that it does.

Certainly, after this Court’s decision in Gomez, any state which requires a legitimate child to be supported, which is virtually all of the states, would require the father of an illegitimate child to support it.

And that, of course is one reason why if the Court follows the rational that a right to support is all that is needed, then every illegitimate child whether there had ever been any contact with the father from the moment -- ever since the moment of conception, would also be entitled to benefits.

And that, of course, is the Norton case which is presently pending on a jurisdictional statement here.

And that is why that if the true gravamen is that you can never say legitimate is different from illegitimate, then not only these children would receive benefits, but children who had never had any contact with the father.

So that the -- and as we indicated running across the law, there’s the feeling that right to support is not sufficient.

It may frequently coincide, but is not in itself, a sufficient nor the basis of the Social Security Act’s benefit payments.

If there are no further questions.

Chief Justice Warren E. Burger: Thank you, Mr. Boggs.

Do you have anything further, Mrs. Stevens?

Rebuttal of Jane G. Stevens

Ms Jane G. Stevens: May it please the Court.

I think that the -- that counsel for the Secretary has depended on two, if I may say so, flawed arguments.

The first is that the likelihood -- that the purpose of this Section is to provide support for those most likely to have lost support.

And I think that the clear fact that legitimate children born after the onset of disability who never had support from current earnings are eligible must indicate that that cannot be the purpose of this distinction.

Legitimate children who have had no prior experience of support are eligible to receive these benefits.

And the other buttress of the Secretary’s argument is that the distinction is based on a distinction between those who can and those who cannot inherit under the laws of intestacy, and there are two weaknesses in that argument.

The first is in the legislative history, in 1965, when they added this section to the Act, Congress stated and I would read a quote to you from Senate Report 404 in 1965.

“The committee believes that in a national program, that is intended to pay benefits to replace support for a child when his father retires, dies, or becomes disabled, whether a child gets benefits should not depend on whether he can inherit his father’s intestate personal property under the laws of the state in which his father happens to live.”

That was not, in fact, the intent of Congress.

The purpose of adding Section 216 in the first place was so that this federal program would not depend exclusively on the state laws of intestate succession.

And the other weakness of that argument is that this is not a means for deciding who will receive benefits after a wage earner dies, but who will receive benefits while he is still alive and would be, but for his disability or age, supporting the children.

And therefore, it would be rational perhaps to depend on laws providing support, but not on the laws of intestate succession.

In fact, Mr. Jimenez in this case has acknowledged these children formally in writing and they will be eligible to receive benefits when he dies.

And in fact, even if he had not acknowledged them in writing, they would be eligible to receive benefits when he dies because he is living with them and living with them is a means to qualify under this Section.

The likelihood of support is simply not relevant in a section which makes necessary for eligibility acknowledgment or a court order which would give a right to support or the experience of support or “living with.”

No one will qualify under this Section who has not the right to or the experience of support, no matter when he was born in relation to his father’s age or disability.

And therefore, I think that the argument on which the Secretary now apparently entirely depends, is an argument without merit and, therefore, I respectfully request that this exclusion of afterborn children be stricken from the Section.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mrs. Stevens.

Thank you, Mr. Boggs.

The case is submitted.

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Willis v. Prudential Insurance Company Of America - Oral Argument

Fri, 06 Feb 2009 07:17:44 +0000

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Willis v. Prudential Insurance Company Of America

Media File:

70-5344_19720228-argument.mp3

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Weber v. Aetna Casualty & Surety Co. - Oral Argument

Thu, 23 Aug 2012 18:18:43 +0000

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Weber v. Aetna Casualty & Surety Co.

Media File:

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Related Transcript:

70-5112_19720228-argument

Transcript:

Argument of Vanue B. Lacour

Chief Justice Warren E. Burger: We’ll hear arguments next in 70-5112, Weber against the Aetna Casualty.

Mr. Vanue B. Lacour: Mr. Chief Justice --

Chief Justice Warren E. Burger: Mr. Lacour.

Mr. Vanue B. Lacour: -- and may it please the Court.

This case is here on certiorari to the Supreme Court of the State of Louisiana.

The sole issue before the Court is whether or not the denial of workmen’s compensation to dependent illegitimate children of a single family unit, solely because they are really illegitimate deprives such illegitimate children of equal protection under the Fourteenth Amendment.

I’ll sketch the facts of the case briefly.

Henry Clyde Stokes was the father of four legitimate children born of the marriage with a lawfully wedded wife from whom he was separated.

He became the paramour or common-law husband of Willie Mae Weber.

He moved his four illegitimate children into the house with her and lived there as a family unit.

Chief Justice Warren E. Burger: When you say common-law, that did not mean --

Mr. Vanue B. Lacour: That don’t mean -- I mean out of wedlock wife if I may put it that way.

Chief Justice Warren E. Burger: He could not be a common-law husband.

Mr. Vanue B. Lacour: There are no common-law marriages in Louisiana.

Justice Potter Stewart: And his lawful wife was still living?

Mr. Vanue B. Lacour: His lawful wife was still living but they were separated not judicially separated or divorced.

While living with Willie Mae Weber, they were born one child of their illicit or out of wedlock relationship.

Then while they were living, he was employed as a truck driver.

He was killed on the job and of course, the scope of his employment had no dispute was that he was covered by workmen’s compensation under Louisiana law.

And sometime after his death, there was born to Willie Mae Weber another child conceived out of the relationship with him prior to his death.

Now --

Justice Potter Stewart: Is there any question Mr. Lacour about that second child if that second child had been a legitimate child, although a posthumous child?

Would that child had been counted as a child under the workmen’s compensation?

Mr. Vanue B. Lacour: Yes, he would have.

But if he is a posthumous child and an illegitimate child, Louisiana does, even though it isn’t involve in this case, Louisiana does draw a distinct between a posthumous illegitimate and a posthumous legitimate.

A posthumous legitimate child will be paid workmen’s compensation but not a posthumous illegitimate, which is another discrimination not emphasized in the case however, because there are larger discriminations here which we could not even get to this.

Chief Justice Warren E. Burger: But it is not partly related in a practical sense to the problems of proof?

Mr. Vanue B. Lacour: That is argued, I suppose so; however, without being suspicious, I suppose the proof of paternity you assume it.

You prove it by outward manifestation of family membership.

In this instance, the posthumous child that the mother conceived the child, she was pregnant had no doubt in the record, it’s not in dispute that Henry Clyde Stoke, the deceased employee was the father of the child.

Now --

Chief Justice Warren E. Burger: Has Louisiana in any case you know of ever given any special status to extra judicial acknowledgements, that is letters, affidavits, things of that kind, acknowledgements of paternity?

Mr. Vanue B. Lacour: Not of paternity, of maternity, even though Louisiana law requires -- well, it’s earn settle in Louisiana as to whether or not what we call an informal acknowledgement of an illegitimate child, lifts that child from the object of lowest level of which the Civil Code say it is known by the escalation basket, whereas the child acknowledged either formally by notarial act or some formal act or informally the mother, because of maternity doesn’t leave open the question of uncertainty as to parentage.

Informal acknowledgement of maternity is accepted on whereas there is some reservation with respect to informal acknowledgement of paternity.

Now --

Justice Byron R. White: Mr. Lacour, is it -- in the amicus brief, I think it’s a statement that these out of wedlock children could not have been acknowledged under, is it Article 204?

Mr. Vanue B. Lacour: 204 of the Louisiana Civil Code.

Justice Byron R. White: Do you agree with that?

Mr. Vanue B. Lacour: That is correct; that is correct.

The provision for acknowledgement, for formal acknowledgement, has a restriction.

The restriction is that a parent may not acknowledge a child, either informally or formally, and we are dealing with formally here if at the time of conception, there was an impediment to the marriage of the parents of the illegitimate child.

In this instance, sir, there would have been a bigger but myriad mode of conception, and the impediment was that Henry Clyde still was lawfully married to another woman and therefore, these children could not have been acknowledged.

Unknown Speaker: And this is a distinction from last term’s case of Labine against Vincent?

Mr. Vanue B. Lacour: That would be if we are going to focus our attention upon what is argued as being the distinction between Labine and Levy wherein Labine apparently is saying that there was insurmountable barrier in Levy, whereas there is not an insurmountable barrier here and that the children could be acknowledged.

Of course, you will see that there is an insurmountable barrier here when you look at what is said in the amicus brief and what the Louisiana Civil Code actually provides under 204, the insurmountable barrier here because each children couldn’t even be acknowledged.

Justice Byron R. White: What is the purpose of the barrier in the code you think?

I don’t know if it's being present in other -- in common law states anyway?

Mr. Vanue B. Lacour: No.

As I recall it, it’s a carry on through long history from the Civil Law or sort of -- I guess, for me to discourage, which was rejected in Levy to discourage the illicit relationship we would produce or also to prohibit the bringing into up to the statehood of a child, a child where the parents where actually married to each other.

It’s also the law where it’s constitution on that an incestuous marriage would prohibit or prevent the acknowledgement of the child.

Also, to the extent that at the time when it was constitutional, a misogynous (ph) marriage or misogynous relationship, misogyny, they would have a difference in rate.

It would have been an impediment to the marriage consequently.

We have a long line of cases where a lot of children couldn’t be acknowledged.

Now, back to the --

Justice William H. Rehnquist: Mr. Lacour, do you make a separate contention here that that rule of Louisiana law respecting legitimation distinguishing between the case where there was an impediment to the marriage of the parents or there wasn’t, that that itself is a violation of equal protection?

Or do you concede that is rational based statute?

Mr. Vanue B. Lacour: I concede that that is a rational basis.

What we are saying here, we take the position at the trust of Labine versus Vincent is not to reject or overrule Levy; that Levy, which held that on Article 2315, which is the Louisiana basic tort law.

All of other law for negligence or other tort claim arise or get its source from Article 2315 of Louisiana Civil Code, which provides that roughly whoever is injured as result of the act of another is entitled to reparation.

And then Louisiana, through the years enacted wrong had a wrongful-death statute to give an action for tort for death to survivors.

And as the Court knows in Levy, the plaintiffs were illegitimate children of the mother who died as result of an alleged tort.

And the denial of a tort cause of action to those children would have to be violative of the Equal Protection Clause.

Now, what we are saying here if Levy is still the law, then Labine, it seems to me, took pain to say that Levy is still the law.

And what Labine is saying is that the denial of inheritance right is not the same kind of denial and deprivation that in a tort cause of action, the child, as Justice Douglas points out, is nurtured by the parent, is not a non-person.

The child is loved and he loses the same thing when he loses his parents, his mother, in that instance, the legitimate child.

Now, under Louisiana law it really wasn’t compensation law although all the other state, the Workmen’s Compensation law is the replacement for the tort law.

Now, so 2315 could not be used against the employer here.

Now I need to go into just a little more explanation of the fact, because there is a tie-in between with Workmen’s Compensation and the Louisiana Tort Law.

What happened further in this case was that the grandmother of the four legitimate children sought a tort action against a third party tortfeasor who was responsible for the acts of death in which the employee was killed.

Do you still have your cause of action against your third party for tort even though you do have your worker’s compensation?

But whatever Workmen’s Compensation you recover from your third party tortfeasor, you owe it, the beneficiary will owe it to the employer, i.e. to insure under the right of subrogation.

So the tort suit was settled, the maximum compensation payable in Louisiana in any answers at that time was $14,000.00.

The tort claim exceeded $14,000.00.

The four legitimate children then came back into the State Court and dismissed their claim for Workmen’s Compensation on the basis that there was nothing for them to recover anyway, because if they recovered, the right would belong to Aetna Casualty and the truck driving concerned the employer.

Then the employer and its insurer moved to dismiss the suit on the ground that there was no -- the Workmen’s Compensation had been exhausted, and we had, of course, pleaded that the denial of Workmen’s Compensation to the two illegitimate children would constitute the denial of equal protection and the court -- the Trial Court held that they were entitled to Workmen’s Compensation but only if there was any left after the four legitimate children had used it all up.

So from that we appeal on that and what happens then is the Supreme Court of Louisiana interpreting the Workmen’s Compensation Law of Louisiana is saying that you have six children born of a man who are his dependents.

They are supported by him.

They are all -- they are member that acted the family unit which he is maintaining at the time of his life and at the time of his death as a family unit consisting of six children.

The out of wedlock wife or the mother of the two illegitimate is also the stepmother of the legitimate.

So everything is equal insofar as the nexus or the relationship between the father and the six children.

The only difference between the four who got the Workmen’s Compensation and the two who did not is that the four was legitimate and the other two were illegitimate.

Chief Justice Warren E. Burger: Now that is -- assuming that the record supports that statement Mr. Lacour in this case that would not necessarily be true with respect to all illegitimate children, would it?

As a general proposition, they aren’t always under the cover and protection of the father?

Mr. Vanue B. Lacour: No, if acknowledged; if they were acknowledged, acknowledged illegitimate children would be beneficiary under the Louisiana Workmen’s Compensation Law.

Formerly acknowledged illegitimate, if those children have been acknowledged they would have been entitled to Workmen’s Compensation.

If I understand Mr. Chief Justice question correctly.

I think I have just about covered the essential feature of the case except, I have to reemphasize that we believe what we are arguing here is exactly what Labine, that is the Louisiana case involving inheritance, the reservation of Labine.

We believe also that if the answer insurmountable barrier is the distinction, if I am clear in pointing out what had happened in this case, there is no opportunity for the two illegitimate children to get any Workmen’s Compensation here unless by sheer accident, because if I may point out, the $14,000.00 maximum Workmen’s Compensation was never paid by the compensation carrier; it was paid by the third party tortfeasor.

The compensation, the employer and the insurer got credit for it because automatically they would get credit for under Louisiana Workmen’s Compensation Law.

Ordinarily, Workmen’s Compensation benefits are paid weekly.

It would have been $35.00 a week here for 400 weeks.

Here it was not done that way, there is no money coming in so that if one of the legitimate should die short of reaching adulthood, one of the illegitimate would step in, that’s what it meant under Louisiana law.

It is not exhausted.

Here, it’s all gone and so the Court just effectively closed the door against the two illegitimates and saying your six children living at one family unit all equally supported by the father, no apparent difference in his treatment in what he would have wished for them to have, but because the two are illegitimate, the four gets all of the Workmen’s Compensation and the other two are left upon (Inaudible).

Unknown Speaker: Mr. Lacour, would your case be any different if 204 were not present, if the barrier of 204 were not there, and he just had not acknowledge his children.

Mr. Vanue B. Lacour: Yes, it would have been; it would have been.

If 204 -- if there had not been an impediment, he could have acknowledged them, and if he had acknowledged them under Louisiana Workmen’s Compensation Law, they would have been entitled to.

Unknown Speaker: What if it could happen?

Does your case would be any different?

Mr. Vanue B. Lacour: It wouldn’t have been any different.

Unknown Speaker: Well, this is my question.

If he could have but didn’t?

Mr. Vanue B. Lacour: If he could have but didn’t then they would have been excluded from Workmen’s Compensation.

In extent, I think perhaps we need to clear this point.

Unknown Speaker: Would you still be acting on their exclusion or not?

Mr. Vanue B. Lacour: Yes.

Unknown Speaker: He could have acknowledge them but didn’t.

Mr. Vanue B. Lacour: Right.

Unknown Speaker: And then he dies, was these unacknowledged children be entitled to --

Mr. Vanue B. Lacour: We would still be arguing this Mr. Justice.

We would still be arguing that you are excluding them because they are illegitimate, and if they are, in every way, equally dependent upon the father and it is established and undisputed in the record that they are his children.

Then the exclusion of them from participation in Workmen’s Compensation along with the other children who had no more dependency upon the father than they had would still be an invidious, arbitrary and capricious without any basis at all other than they are illegitimate and the other four are legitimate.

Unknown Speaker: Except that he had a way to acknowledge them and didn’t pursue that way?

Mr. Vanue B. Lacour: Well, you would say then that that would probably be the argument under Labine versus Vincent that that he had a way.

But I am not willing in my argument here that I think is more eye catching than the real distinction of Labine.

I don’t think that insurmountable barrier which was pointed out by the Court there is it really the real reason as you read underneath here that inheritance is -- if they are not involve the same kind of nexus and attachment in human relation between people that parent and children do and that when you deny talk cause of action to a child whose parent’s life has been snuffed out, you are denying reparation for a deprivation.

But when you deny the law of succession and the state say you go this way or that way, the state is not pinpointing and saying you lost something but you can’t get any reparation, because you’re illegitimate.

The state is just saying, you don’t fall in that class under who ruled you would get a right of inheritance, and I think the real distinction between Labine and Vincent is not the insurmountable barrier but the real invidiousness of telling one who has lost his parent, you cannot get a reparation that one is entitled to from lost of the parent merely because you are illegitimate.

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

Mr. Vanue B. Lacour: Thank you.

Chief Justice Warren E. Burger: Mr. Moore.

Argument of W. Henson Moore

Mr. W. Henson Moore: Mr. Chief Justice and may it please the Court.

The counsel in this case looked at this particular case before you is somewhere in a gray area either between Levy versus Louisiana, Labine versus Vincent and perhaps in a gray area on the either extreme of these two cases.

It’s the opinion of the respondents that there is no invidious discrimination in this case.

I’d like to draw a contrast in this case with Levy and Labine.

First, in the Levy case you had a tort situation.

The Louisiana law has drawn this distinction and has not extended Levy beyond tort.

In the Labine decision, this Honorable Court noted that this is while the distinction; Levy applied the tort.

Secondly, in the Levy case it was pointed out quite forcefully the wrong doer was about to go scot-free.

No one was going to recover.

No tortfeasor was going to have to pay for the death of the mother in the Levy case, and the case at bar at this time there is no wrong doer.

This is Workmen’s Compensation.

There is no question of fault.

There is no question of someone getting all free.

However, I might point out as Mr. Lacour did.

Under Louisiana’s Workmen’s Compensation Law, the employer is entitled to recover Workmen’s Compensation benefits he pays to an employee from the tortfeasor, if there is a tortfeasor who injured the employee.

We now, as respondents, have lost that right because of one year proscription in Louisiana law.

This action took place in 1967 therefore --

Justice Potter Stewart: But you got a complete setoff haven’t you from --

Mr. W. Henson Moore: Well, we got that --

Justice Potter Stewart: We got the recovery by the four legitimate children?

Mr. W. Henson Moore: We got that but I don’t think it’s clear at all that what should happen if this Honorable Court should reverse this decision.

It may well be, we’ve got to turn right around and pay the two children, that Mr. Lacour represents, their fair share, and then try to recover that back from the tortfeasor, which we can no longer do, we are barred by one year proscription.

Justice Potter Stewart: It wasn’t 65% of the wages the maximum whether or not they are four children or six children?

Mr. W. Henson Moore: That’s correct.

That’s the maximum amount of wages paid on Louisiana law.

Justice Potter Stewart: And the --

Mr. W. Henson Moore: Workmen’s Compensation.

Justice Potter Stewart: And this covered more the four they covered more the maximum and you got a complete set off, am I wrong?

Mr. W. Henson Moore: I have the complete set off as to those four, Your Honor.

Justice Potter Stewart: Well, it isn’t 65% of the maximum.

Mr. W. Henson Moore: That’s right.

Justice Potter Stewart: And whether therefore it is 6 or 12 children?

Mr. W. Henson Moore: Well, but what I’m trying to say is Your Honor, it is not clear under our law at all whether or not I will still be liable to Mr. Lacour’s class for Workmen’s Compensation.

The set off I got, applied to the four people on Louisiana law at the time this case was decided who could recover compensation.

Mr. Lacour’s class could not, and so it is not clear at our law then, in other words, if you reverse this case and they will be, but I have now pay his clients and the set off by had against the four legitimate children is no protection to me now as to these two children and therefore the tortfeasor one year is going by and so this is an interesting quarrel, if this case is reverse the tortfeasor will get all scot-free as far as the liability for compensation to two more children.

Now, the next point I would like to point out and distinction is the fact of this unacknowledged illegitimate children situation.

Under the tort law of Louisiana part of the Levy whether you are acknowledged or unacknowledged may draw a difference.

If you’re illegitimate you could recover no tort benefits, only legitimate children could, born in wedlock or adopted.

This is not true in the Compensation Law of Louisiana.

If you are, in fact, an illegitimate unacknowledged you’re treated as an other dependent under Subsection 8 of our list of ranking of dependents and how they will recover the money.

This applies in this case, that you are not excluded from Workmen’s Compensation by law that you are right but not excluded.

Justice William H. Rehnquist: In other words, had there been no legitimate children in this case, the illegitimate children that Mr. Lacour represents would have been entitled some share of the Workmen’s Compensation?

Mr. W. Henson Moore: That’s correct, Your Honor.

As a matter of fact I called your attention to this -- Yes, as matter of ranking in preference under Section 1232 of our Louisiana Workmen’s Compensation Law, which I quote verbatim in my brief.

“There are eight classifications or ranking of which dependent in which situation gets what percent of the allowable wages to be paid in Workmen’s Compensation benefits."

The illegitimate unacknowledged children are treated as other dependents under the eighth ranking meaning in order of preference.

They are eighth in the line, eighth in the line of preference.

But of those eight the first, second, fourth, fifth and seventh all have situations where there may be somebody in a high ranking that does not use up the whole 65%, the balance then goes down the line and it would come to the eighth rank illegitimate unacknowledged children.

In other words, I gave an example.

Under Section 5, Subsection 5 it says, if there are two children meaning, legitimates are acknowledged.

These two children recovered fourty-six and one-quarter percent of the wages.

The difference between this forty-six and one-quarter percent and sixty-five percent would go down the line to the next order of persons all the way to the end.

In that case there would be a -- in this case the illegitimate children would recover the difference between forty-six and one-quarter and sixty-five percent.

Unknown Speaker: What if the decedent had no legitimate children, no one but had one parent?

Mr. W. Henson Moore: That’s right.

Unknown Speaker: Then the thirty-two and one-half percent would go to illegitimate children?

Mr. W. Henson Moore: Correct, Your Honor.

Correct.

And so we are trying to point out here is that there is no absolute barrier for illegitimate unacknowledged child to recover compensation as the laws in the tort law of Louisiana dealing with 2315.

Now in the case of Labine versus Vincent the same thing is true.

An illegitimate unacknowledged child has absolute no right to inherit under Louisiana law.

This again, we just pointed out, is not true in our compensation law.

Now let's take the situation of the acknowledged illegitimate child, how is it for you?

Unknown Speaker: Right there Mr. Moore, do you concede that these children could not have been acknowledged under 204?

Mr. W. Henson Moore: At the time of the decedent’s death, no, they could not have been, that’s correct.

Of course the law goes on to point out that should these two persons subsequently contract illegal marriage, they then can adopt, and so the restriction there is not one for all time.

It worked out that way in this case, because obviously, the man died before he had the chance to properly divorce his first wife and marry the woman with whom he was living.

And the case of the acknowledged illegitimate child, once again under Levy, he had no right of recovery.

As you point out in Labine versus Vincent, he does have a right of succession, a right to be in the succession, but he has not rank equally with legitimate children.

Even in Labine versus Vincent, he comes in a preferential order.

He comes down the line ahead of the State of Louisiana and several other miscellaneous persons with on the line on order of succession, but he has not acknowledged, illegitimate child is not treated equally with the legitimate child of Louisiana succession law.

Now, we come to Louisiana’s Workmen’s Compensation Law and we see that an acknowledged illegitimate child is treated equally with the adopted or children born to a legal marriage.

Therefore once again we can see that in looking to similarities, Louisiana’s Workmen’s Compensation Law does not have any were near the barriers found in Levy and it is indeed far better off than those this Honorable Court pointed out in Labine versus Vincent.

Further, as I pointed out, in the case of whether a child can be acknowledge or not, if those two parents subsequently marry, they can then acknowledge the child.

I would like also point out the discrimination here as to the illegitimate children is no different than discrimination of a ranking of all persons in the eight subcategories of dependents.

In other words the ascendants are ranked over the collateral relations and the descendants are ranked over the ascendants, and so this is just the whole schematic line up of rankings here.

There is no invidious discrimination any of them, they use to give a preferential order of how the support is to be partialled out.

The moment -- the question was asked a moment ago as for the reason for this ranking or why this was done.

And I’d like to point out that in the -- on page 76 of the Appendix, the Louisiana Supreme Court summed it up as best as we can find anywhere in print.

The Louisiana Supreme Court said for ourselves we find nothing invidious into the distinction made in the compensation statute, which would protect such legally recognize family relationships anymore in the preference given the legitimate dependent children even the illegitimate ones when they’re duly acknowledged over dependent parents.

What the Court is saying here is, this is all Louisiana, legislative of Louisiana has felt that this protects the order, the existing family orders, but partialling out the compensation based upon first of all the question of dependency and secondly the question of the family relationship.

I would like to point out to this Honorable Court in the Levy decision noted the fairness of Louisiana’s Workmen’s Compensation Law in footnote number 7, and so I'd like to point again, to the fact that Louisiana Workmen’s Compensation Law does not have absolute invidious discrimination or an absolute barrier to recovery.

It is just in this particular case it appears that this time at this time the two illegitimate children will not recover anything.

Now if subsequently, before the 400 weeks expires, I assume that this time it has expired, if one or more of the illegitimate children had died then there would be this balance or overflow that would go down the line to the illegitimates, and so even after the Court rendered its initial opinion to this case, it was still possible for the illegitimates to come and to some Workman’s Compensation benefits.

This was noted and preserved in the judgment of the Trial Court.

Justice William H. Rehnquist: Mr. Moore, have these children born out of wedlock but impediment not been there to actual legitimation and have they been legitimated, they would have recover as lawful children under compensation law?

Mr. W. Henson Moore: Correct, sir.

Correct under compensation law.

That’s not true or it’s not true under the tort law and it is not true still under succession law to Labine versus Vincent, but it true in the workmen’s compensation law.

Your Honors, I’d like to point out the language in Labine and Levy, which lead to Louisiana’s discretion or its power to do what is done in setting up this Louisiana Workmen’s Compensation Law.

In Labine, this Honorable Court pointed out and I quote, “Levy did not say and cannot barely be read to say that a state can never treat any illegitimate child differently from legitimate offspring.”

And further the Court noted that and I quote, “The choices reflected by the interstate or the intrastate succession statutes are choices which is within its power of the State to make.”

The Federal Constitution does not give this Court the power to overturn the State’s choice under the guidance of constitutional interpretation, because the Justice of this Court can provide better rules.

And under Levy the majority opinion and I quote, “In applying the Equal Protection Clause to social and economic legislation, we give great latitude of the legislature in making classifications.”

I would like to say of course Louisiana’s Workmen’s Compensation Law has been definitely social and economic legislature, and we ask this Honorable Court to find that the State of Louisiana has had its latitude in making this classifications that they are not invidious and that the State can, in this case, treat illegitimate children somewhat differently in a ranking if it has not absolutely prevented them from recovery.

And we ask you therefore to find that there is no invidious discrimination and to affirm the judgment of Louisiana Supreme Court.

Justice Lewis F. Powell: Mr. Moore, may I ask you a question?

The classification that you’ve been discussing applies in the case of death, is there a similar classification on the Louisiana law that applies with respect to Workmen’s Compensation benefits resulting from an injury?

Mr. W. Henson Moore: No, sir.

Your Honor, in the case of injury, the benefits are paid directly to the injured employee.

Justice Lewis F. Powell: And regardless of the disability --

Mr. W. Henson Moore: That’s correct.

We have partial disability and permanent disability situations.

Justice Lewis F. Powell: (Voice Overlap) likely manly disabled?

Mr. W. Henson Moore: In that case Your Honor I am not sure I think he would probably be paid to --

Justice Lewis F. Powell: (Voice Overlap) comity or --

Mr. W. Henson Moore: You have to have someone appointed as a treater, not a treater but administrator of his state and money would be paid to that person.

But that’s the only in the case of a death situation you are under classification of who are the beneficiaries of the compensation benefits.

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

Do you have any further Mr. Lacour?

Rebuttal of Vanue B. Lacour

Mr. Vanue B. Lacour: Just three comment, may it please the Chief Justice and members of the Court.

An argument is made here that the employer and its compensation insurer would perhaps be prejudice by a non payable decision in that now proscription has run, they would not and it would be without their remedy of subrogation.

But the record will show however that the circumstances in which the employer or any its insurer find itself now really was part of its own doing, the Court should -- I want the Court to know that the illegitimate children were brought into the suit by what do we call (Inaudible) in Louisiana by interpleader by the compensation carrier in order to assure itself that it would get everybody in the Court and have finally decide so it wouldn’t be left or paying multiple payments or just to avoid what normally interpleader avoid.

However, at this turn of the event, when it found itself entitled to the all set and the legitimate children dismissed it too, it had its fair opportunity to uphold the dismissal and have the things finally litigated.

So, any prejudice really that itself is not called by any action on the part of the appellants you know would it result to any in affirmance by the Court but really be the result of that choice made in the court below.

Now the allusion it made also to what the Court said in Levy that of defendants of Louisiana of course in my brief I footnote that point and when I first read it, when Levy was quite decided, it was mindful of the fact that it did not call to the attention of the Court that the fairness or the permission of the allowance of Workmen’s Compensation to illegitimate children, such as the Court saw there, was not because they were children, and I want the Court -- I want to get it clearly understood and try to get it across that the illegitimate children when they come in under classification eight to witness that more alludes, come in as other dependents and anybody else who might be a member of a family they’re not because they are the children but have been an aunt, or had been a maid, or had been an uncle living in the family and he could show that dependency of that family and there were not enough legitimate children to use up the Workmen’s Compensation he would come in so this little children are thrown with this crowd that happen to be dependent and they’re not respected as dependent member or children who have that nexus that we’re talking about that the Court was talking about in Levy and that is really the Workmen’s Compensation replace it 2315 here and if to disregard the children as it did on the workmen on the 2315 on the tort it is invidious discrimination.

You’re taking away from them here the very same thing in the Ninth and the very same thing under guide of Workmen’s Compensation that would been denied on the Levy so with that --

Justice Potter Stewart: Under 8 -- under Subsection 8, a complete stranger so far as that is a complete non-family member could qualify as a dependent as I understand?

Mr. Vanue B. Lacour: Yes.

Yes, if he has approved dependency and provide it --

Justice Potter Stewart: If he proves the fact to dependency?

Mr. Vanue B. Lacour: And provided the nature that would have taken even though they were unacknowledged, incapable of being acknowledged illegitimate would have taken whatever promise that have been left if they had not been a enough people to use up all the [Voice Overlap].

Justice Potter Stewart: Just on proving the fact of the dependency not on proving the fact of --

Mr. Vanue B. Lacour: Yes, not only proving the fact of being fair and having the nexus to apply the need the same reparation for the loss of a parent that has illegitimate children.

Justice Potter Stewart: And it is your claim that whatever it may or may not provide that the Equal Protection Clause of the Fourteenth Amendment entitles your client as to be treated as children?

Mr. Vanue B. Lacour: Right.

Not in the both bases, but indeed particular facts on this petition case was one family unit and there is nothing nor the reason to mistreat these two children here as they were mistreated and that they were illegitimate.

Yes in this particular case, it was invidious in any case as now as this.

If -- I don’t see how we can escape seeing invidiousness of treating those children, and we believe that the Supreme Court of Louisiana ought to be reversed and the case be remanded for the appropriate relief.

Thank you.

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

Thank you, Mr. Moore.

The case is submitted.

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Argument of Mr.chief Justice Warren

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

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

You may proceed now.

Argument of David R. Normann

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It was so stated in McLaughlin versus State of Florida.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article 214 --

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

Mr. David R. Normann: Yes, sir.

Justice Potter Stewart: Is that right?

Mr. David R. Normann: Yes.

Justice Potter Stewart: Either the father or the mother?

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

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

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

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

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

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

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

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

Mr. David R. Normann: Yes.

I --

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

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

Justice Abe Fortas: Yes.

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

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

Mr. David R. Normann: Oh, yes.

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

I think originally in the Code 1825.

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

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

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

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

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

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

Justice Abe Fortas: It was not a moral purpose.

It was a property purpose.

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

It provides for wrongful death and it is --

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

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

Mr. David R. Normann: Well, --

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

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

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

Justice Abe Fortas: It was a property arrangement –-

Mr. David R. Normann: Yes.

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

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

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

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

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

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

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

Mr. David R. Normann: No.

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

Justice Potter Stewart: Yes, yes.

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

Justice Potter Stewart: Yes.

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

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

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

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

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

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

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

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

I didn't mean to say that.

I think that the statute has simple purposes.

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

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

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: What --

Justice Thurgood Marshall: Mr.Normann --

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

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Precisely.

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: I beg your pardon.

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

Mr. David R. Normann: No.

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

Mr. David R. Normann: Correct.

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

Mr. David R. Normann: Yes.

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

Mr. David R. Normann: Yes.

Rebuttal of Mr.chief Justice Warren

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

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

Rebuttal of David R. Normann

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

For example --

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

I stated it incorrectly then.

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

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

But I --

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: I beg your pardon.

Rebuttal of David R. Normann

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

The property rights of legitimates as against illegitimates.

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: I beg your pardon.

Rebuttal of David R. Normann

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

I think --

Justice Thurgood Marshall: Mr.Normann, excuse me.

When was 3536, the definitional section passed?

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

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

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

Justice Thurgood Marshall: Thank you.

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

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

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

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

Now, why does the law --

Rebuttal of Mr.chief Justice Warren

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

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

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

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

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: All right.

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

Mr. David R. Normann: Surely.

Most certainly and I'm defending --

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Not the state?

Rebuttal of David R. Normann

Mr. David R. Normann: No.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Or his rights?

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: That is true.

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

Mr. David R. Normann: Oh, yes.

Rebuttal of Mr.chief Justice Warren

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

They are not designed for that purpose.

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: That's right.

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Yes.

Rebuttal of David R. Normann

Mr. David R. Normann: Yes, sir.

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

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

Hence, the illustration I gave a moment ago.

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

My children exclude my parents for my wrongful death.

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

Mr. David R. Normann: True.

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

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

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

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

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

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

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

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

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

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

But I --

Justice Abe Fortas: Well, it is relevant.

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

Mr. David R. Normann: Yes, sir.

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

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

Why does the law so classify?

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

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

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

This would be an illegitimate relationship.

Justice Byron R. White: Well, yes.

Mr. David R. Normann: Yes.

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

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

That is the law.

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

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

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

Mr. David R. Normann: No.

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

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

Mr. David R. Normann: Yes.

Justice Abe Fortas: But what -- what exactly –

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

Mr. David R. Normann: Yes.

The spouse would have a cause of action.

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

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

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

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

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

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

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: The answer is yes.

The answer is yes, is it not?

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

There is none.

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

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

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

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

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

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

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

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

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

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

Justice Hugo L. Black: Under Marbury and Madison?

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

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

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

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

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

Rebuttal of Mr.chief Justice Warren

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

Rebuttal of David R. Normann

Mr. David R. Normann: No, sir.

I'm afraid that would be just as offensive.

I believe my time is up.

Rebuttal of Mr.chief Justice Warren

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

Mr.Wessel.

Argument of William F. Wessel

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

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

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

Number two, in the appendix to this --

Justice Potter Stewart: I misunderstood you, sir.

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

Justice Byron R. White: Why?

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

Justice Potter Stewart: Why?

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

Justice Potter Stewart: Why?

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

For example --

Justice Byron R. White: But they could adopt?

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

Justice Potter Stewart: Well, I --

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

There is a distinction in Louisiana law.

There is legitimation, acknowledgement and adoption.

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

Mr. William F. Wessel: That is correct.

That is correct.

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

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

It would seem that the same reasoning would apply.

Justice Potter Stewart: Well, --

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

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

That's the notarial act as I understood.

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

If he has no legitimate --

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

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

Justice Potter Stewart: What?

What case is that?

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

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

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

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

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

Adoption can be done of course.

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

The first book treats the persons.

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

The third book treats of the modes of acquiring things.

The first book on persons does not contain 2315.

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

The third book which sets up the 2315.

The first title carries the whole Succession Law of Louisiana.

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

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

The fourth title is the Conventional Obligations.

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

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

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

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

They never intended by legislation --

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

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

No Court has said that that was the reason.

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

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

Mr. William F. Wessel: Under 1970?

Justice Potter Stewart: The first one?

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

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

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

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

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

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

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

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

That's my understanding, Your Honor.

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

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

I submit that.

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

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

Thank you, Your Honors.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Very well.

Featured:

Levy v. Louisiana - Oral Argument

Thu, 23 Aug 2012 18:14:55 +0000

Case:

Levy v. Louisiana

Media File:

508_19680327-argument.mp3

Related Transcript:

508_19680327-argument

Transcript:

Argument of Norman Dorsen

Chief Justice Earl Warren: Number 508, Norman Dorsen versus William A. Porteous, III.

Mr. Dorsen.

Mr. Norman Dorsen: Mr. Chief Justice, members of the Court.

This case concerns the rights of illegitimate children under the Fourteenth Amendment.

Specifically, the question is whether a state can deny children born to an unmarried woman the benefits of a statute permitting children generally to sue for the wrongful death of their mother.

The facts in the case are simple and uncontested.

The decedent, Mrs. Louise Levy was the mother of five infant children whose interests are at stake here.

The children lived with their mother and were dependent on her.

The defendants in the case in this Court are Dr. W.J. Wing of the Charity Hospital of New Orleans and an insurance company, the Interstate Fire & Casualty Company.

On March 12, 1964, Mrs. Levy went to the Charity Hospital feeling ill and having other symptoms.

She was assigned to Dr. Wing who purported to examine here but failed to take blood test and make other checks.

On March 19, Mrs. Levy returned and she was still feeling ill.

Dr. Wing admonished her for not taking the medicine that he had prescribed and he suggested that she see a psychiatrist and in fact, he made an appointment with her to see a psychiatrist.

On March 22nd, Mrs. Levy was brought to the hospital in a comatose condition, on March 29th, she died.

This suit was filed in the Louisiana courts under Article 2315 of the Louisiana code, the wrongful death statute of the state.

Two elements of damages were alleged, totalling $60,000.00.

$55,000.00 was alleged as the damages that these children suffered for the loss of their mother prior to the age of majority.

This is the wrongful death element.

$5,000.00 was alleged as the survivorship portion of the damages for the decedent's pain and suffering before she died.

After procedural matters were taken care of in the lower court, the trial court dismissed the cause of action.

This was affirmed by the Court of Appeals of Louisiana and one reason was given for denying these illegitimate children the right to sue and the words of the Louisiana Court of Appeals, the decision is "actually based on morals and general welfare because it discourages bringing children into the world out of wedlock".

Justice Potter Stewart: The Court -- did the Court make any distinction at all between the dependence action or the survivorship action?

Mr. Norman Dorsen: It did not Mr. Justice Stewart.

Justice Potter Stewart: The first action, I suppose the damages could be plainly awarded only in the event of dependency, couldn't they?

Mr. Norman Dorsen: Right.

That's correct Mr. Justice.

The Supreme --

Justice Potter Stewart: The second one is on behalf of the mother herself for her own pain and suffering.

Mr. Norman Dorsen: That's quite correct.

The Supreme Court of Louisiana without opinion refused the writ of error.

It's the position in this Court that the appellants take that this application of Article 2315 is invalid under the Fourteenth Amendment.

First, because it violates the Equal Protection Clause, denying the children rights on the basis of suspect criteria, the status of illegitimacy.

Second, because it's a violation of Equal Protection Clause on the ground of a statutory classification is unreasonable in light of the purpose of Article 2315.

And three, that it's a violation of due process because the discrimination for there is no valid state purpose and deprives the children of rights on the basis of a status over which they have no control.

Our first point is that the classification is unreasonable in light of the statutory purpose.

The principle in this Court is ancient and clear and we quoted in the brief on page 9 where the Court said as long ago as 1896 that the attempted classification must always rest upon some difference which bears a reasonable and just relation to the Act in respect to which the classification is proposed and can never be made arbitrarily and without any such basis.

Of course more recent cases like Carrington and Rash and McLaughlin and Florida adopt and apply this rule of the Court.

The application of this principle, it seems to us is equally plain in this case.

It's the purpose of the wrongful death portion of the statute to save children harmless from the loss of the material and moral benefits that they would have received if their mother had lived, the mother in whom they were dependent, the mother with whom they resided and this of course is the purpose of all wrongful death statutes.

In this case, it seems to us, it's wholly unreasonable to discriminate against the illegitimate children.

They were as close to their mother as any children could be.

They were fully dependent on her for both the economic necessities and the intangibles of training, nurture and guidance.

Indeed Louisiana Workman's Compensation Law which has been applied to permit dependence to recover under the Workman's Compensation law even if they're illegitimate, points up in our judgement the unreasonable nature of the classification here.

When one turns to the survivorship portion of the statute, the purpose is only slightly different but there is an added element and that is to reinforce the deterrent aspects of the general tort law by refusing to permit wrongdoers to escape payment.

This stated in the statute itself and by an authoritative law review article in Louisiana which on page 16 states, "The idea apparently evolved that the person responsible for the wrongful act should pay damages to someone connected with the deceased whether or not that person was dependent on him.

And of course in this case, the children were dependent on the mother and there is no reason that I can think of and no reason has been suggested, I respectfully say to the Court, why this children like any other children should not be able to bring this course of action on behalf of their -- in their status as dependents and children of the mother with whom they lived.

Now, the justification, the only justification that was given in the Louisiana court was the idea that illegitimacy would be deterred by rule of this kind.

Not only was this assertion unsupported by factual data but with all candor, it seems to me, to be a wholly unbelievable assertion.

It assumes that those in the process of begetting children will assume all of the following eventualities.

The possibility of pregnancy that there will be no later marriage or other method of legitimating the children that the children will not be acknowledged, that the mother would subsequently die at the hands of a tortfeasor, not only of a tortfeasor but in the hands of a solvent or insured tortfeasor and not only that but within the jurisdiction of Louisiana.

Justice Potter Stewart: Well, even if you assume that the mother found all those things and it's hardly renounced to her benefit, she is dead.

Mr. Norman Dorsen: Quite true, Mr. Justice Stewart.

We have to bear in mind here that the people on whose behalf the lawsuit is being brought are the innocent children of this woman.

They have had no and could have had no control over to their status.

So we have here innocent children, no control over their status, a wrong doer, avoiding the consequences of his act and not only that, despite with all respect, the assertions in the brief of the appellee, Louisiana is the only jurisdiction at the present time that would have this result.

Four other states are mentioned as possibly reaching the same result under existing law New Jersey, Pennsylvania, Indiana and New York.

Justice Byron R. White: This doesn't go to the rest of the other part of the claim in Pennsylvania.

Mr. Norman Dorsen: Pardon me.

Justice Byron R. White: This doesn't go to the recovery for the mother's own suffering.

Mr. Norman Dorsen: It goes -- that's the inheritance part.

Every state in the United States at the present time would permit an illegitimate child to recover inheritance from the mother and there was a factual error in our brief.

Justice Byron R. White: But how about -- how about the -- this is the two pronged action here?

Mr. Norman Dorsen: It's under one statute but there are two elements of the statute and two elements of damages.

Justice Byron R. White: In your statement that there is only one state in United States wouldn't refuse this claim that goes to both elements.

Mr. Norman Dorsen: Yes, it does.

In our brief, I would like to correct an assertion in our brief.

We say that New York also would have denied recovery of inheritance but there was a New York statute that came into effect in September 1967 which amended the New York law but that has not come to our attention when we were drafting this brief.

It's on page --

Justice Abe Fortas: Do you have that (Voice Overlap) in reference to it?

Mr. Norman Dorsen: Yes, I do.

It's Section 5 - 3.4 of the state's powers and trust laws, and the New York statute amends the earlier law by saying under the title "Inheritance by or from illegitimate persons".

For the purposes of this article, an illegitimate child is the legitimate child of his mother and he in this issue inherits from his mother and from her kindred.

Justice John M. Harlan: When was this passed?

Mr. Norman Dorsen: It was passed in 1966 session, Mr. Justice Harlan.

Now, there is one other element in this case that of course underlies the first claim in point of pagination and that is, we have here a minority, a minority that in the words of Justice Stone and his famous footnote for Carolene Products is a discrete and insular minority.

It's a minority that has characteristics similar to the racial classifications that this Court of course has been dealing with for so many years.

We have here a minority that has been the subject of prejudice and abuse.

This prejudice, moreover, is motivated by complex, historical, psychological and sociological factors.

In the words of one psychiatrist who made an extensive study of illegitimacy quoted in the amicus curiae brief of the National Association for the Advancement of Colored Persons, "illegitimacy is a psychic catastrophe, not only as of the psychic catastrophe, not only is it a believed minority but a discrimination against the people in the category of illegitimacy stems from a condition of birth unrelated to individual capacities, uncontrollable by the individuals themselves."

Indeed, in one respect, one can even assert that this is an a fortiori case for race.

Because unlike the situation of minority racial groups, there is no lobby for the illegitimate and in the footnote 4 in Carolene Products and in other cases, this Court has recognized that particular care must be had in scrutinizing statutes where the ordinary political processes are unable to work.

And it seems to us that this is such a case and that these people are in the category analogous to the racial minorities.

Justice Abe Fortas: Mr. Dorsen, are there other types of distinctions between legitimate and illegitimate children in the statutory law or case law of various states?

Mr. Norman Dorsen: Yes there are, Mr. Justice Stewart or Mr. Justice Fortas.

There are several types and the main one of course involves inheritance, straight inheritance from the mother, from the father and from collateral relatives of both.

Justice Abe Fortas: I thought you said Louisiana now is the only state that denies that.

Mr. Norman Dorsen: It -- with respect to the mother -- with respect to the mother but with respect to the father, the law is more complicated.

16 states by statute have provided that illegitimates can recover.

If it does not, we will submit a supplemental memorandum Mr. Justice Fortas.

One state has done it by judicial decision, Connecticut.

10 States have denied inheritance from the father by statute.

Some have given limited rights and some are silent.So we have five categories of states with respect to inheritance from the father.

Justice Potter Stewart: Are there other refinements to settle this with respect to sisters and cousins?

Mr. Norman Dorsen: That's quite correct, Mr. Justice Stewart.

In addition of course, there are special rules relating to support.

There are special rules relating to the interpretation of wills where the word "children" is used and adorned by any explicating adjective.

Justice Byron R. White: (Inaudible)

Mr. Norman Dorsen: My understanding is that everywhere that they are inheritable of putting apart in this factor of illegitimacy.

The common law was that it was not Lord Campbell's Act in England in 1846 was the first statute.

Justice Byron R. White: (Inaudible) that statute.

Mr. Norman Dorsen: Correct.

Justice Byron R. White: What perhaps your claims to (Inaudible).

Mr. Norman Dorsen: Quite right.

Justice Byron R. White: (Inaudible)

Mr. Norman Dorsen: Is inherited.

Justice Byron R. White: (Inaudible)

Mr. Norman Dorsen: That is correct.

Justice Byron R. White: (Inaudible)

Mr. Norman Dorsen: Yes, correct in 1846.

Every state in United States now has a Wrongful Death Act and the purposes of these acts of course were patterned after the original English law.

Our position of course is as we develop more fully in the brief that the criteria in itself is arbitrary that the factors which underlie the jurisprudence of this Court with respect to other invidious classifications do apply in this case and therefore, our submission to this Court is double barreled.

One, that the denial of the right to sue here is inconsistent with the purposes of Louisiana's own statute and secondly that it's on the basis of a criteria in which itself a suspect and must be scrutinized carefully.

At this point, I would like to reserve some time --

Justice John M. Harlan: Now what difference does it make (Inaudible)?

Justice Byron R. White: I don't think it makes any difference, Mr. Justice Harlan.

We've examined the French law at -- it was the basis for Louisiana's law and that law itself suffered considerable permutations over time but Louisiana is one of the states and that it would be subject to the Constitution and although it has a particular historical oddity just as California and New Mexico law is derived from the Spanish law, I would not think that would be directly relevant to the constitutional issue.

Chief Justice Earl Warren: Mr. Porteous.

Argument of William A. Porteous, Iii

Mr. William A. Porteous, Iii: Mr. Chief Justice, may it please the Court.

Gentlemen, every equal protection of the law's case and we're dealing with the state statute, ultimately comes down to a problem of federalism.

How far are we going to go with the Fourteenth Amendment?

Is it to become a vehicle whereby national power will be asserted all the things traditionally reserved to the states?

We submit the answer should be in the negative.

It was never conceived as such was conceived to protect those persons for whom this great nation fought a long war.

Gentlemen --

Justice Abe Fortas: Are you suggesting that it's applicable only to former slaves of the Fourteenth Amendment?

Mr. William A. Porteous, Iii: I do not mean this.

It's just that I don't mean to so limit it sir.

The whole history of the amendment would be to the contrary, however, I'm coming to the fact that in the whole spectrum of equal protection litigation, we have two criteria which emerged.

One, when we're dealing with a racist or racial statute, this Court has applied one set of standards.

The statute is automatically has it were suspect.

Justice Abe Fortas: Well, I don't think -- I hadn't feel it anyway that the fact that the petitioner, Mrs.-- that the fact that Mrs.-- the appellant here Mrs. Levy was a Negro, I didn't think that was the case, does it?

Mr. William A. Porteous, Iii: I don't believe it does, if Your Honor please.

However, the assertion is made in the briefs of the appellant that in Louisiana, 90% of the children who were born illegitimate are colored and that therefore, this statute is some covert form of discrimination against the colored race.

This is asserted in the briefs, and if Your Honor please, I would say that the whole history of our wrongful death statute is quite to the contrary.

If you examine the Louisiana cases on the subject, you will find that race is very rarely even mentioned.

The race of the various parties is very rarely even mentioned in the decisions and I can assure you I know of no cases where it was applied, where the statute was given in favor of White illegitimates and taken away in favor of colored illegitimates.

I know no such case but the assertion is made that this is a race statute and I submit that the appellants are therefore trying to bring this statute within the purview of those cases Loving versus Virginia, Korematsu, Hirabayashi etcetera, where the statute is automatically a suspect and only the most overriding public policies may justify it.

However, with regard to other matters at the other end of the spectrum, we must ask the question whether or not the discrimination is invidious.

Justice Thurgood Marshall: Well Mr. Porteous, let's get to the other point about classification.

Mr. William A. Porteous, Iii: Yes sir.

Justice Thurgood Marshall: I assume you have no objection to the federal court intervening in cases involving corporations and insurance companies against invidious classifications, that's alright, isn't it?

Mr. William A. Porteous, Iii: Yes indeed.

Justice Thurgood Marshall: Well, what basis is therefore this classification?

Mr. William A. Porteous, Iii: Are you talking about a rational basis for this classification?

Justice Thurgood Marshall: No, I'm talking about anything.

Mr. William A. Porteous, Iii: If Your Honor please, legislation by its very nature must be classified.

I submit that the Congress of the United States is classifying lots of corporations and individuals daily.

It's fundamental to legislation classification is.

If we could treat everybody equally the same, we would certainly indeed have a wonderful system but --

Justice Thurgood Marshall: Why do you classify illegitimate children as illegitimate children and not as children?

Mr. William A. Porteous, Iii: If Your Honor please, I submit that the law has a very definite reason for this and they are well-grounded in the public policy of the State of Louisiana and of all the other states of this nation.

Justice Thurgood Marshall: Including those that have abolished this distinction.

Mr. William A. Porteous, Iii: If Your Honor please, I submit that quite to the contrary, the distinction has not been entirely obliterated.

In many states, I would submit contrary to my friend Mr. Dorsen that New York, Pennsylvania, Indiana, New Jersey would not permit this type of action at all.

Justice Thurgood Marshall: Well, we have 50.

Mr. William A. Porteous, Iii: We have 50?

Many of them have not passed on it, if Your Honor please.

Many of them linked the action for wrongful death to the rights of descent in distribution and in numerable states I submit.

Justice Thurgood Marshall: But Louisiana, now why does Louisiana say that a child who do no fault of his own happens to be illegitimate is denied the right to recover?

Why is it that Louisiana says that people who are guilty of wrongful death can be excused from payment for that if the child is illegitimate?

Mr. William A. Porteous, Iii: If Your Honor, please may I start with the last question and work back to first.

Justice Thurgood Marshall: As you wish.

Mr. William A. Porteous, Iii: Mr. Justice Marshall, first of all, in this case, there was a legitimate relative with the right of action.

The tort fees are -- would have had to pay presuming he was negligent.

That person, however, did not assert the cause of action.

That was the mother of Louise Levy who still had the cause of action under our Article 2315.

Unfortunately for her, she filed a lawsuit too late and was time barred.

Now, therefore the tort fees or does not as it were escaped.

Secondly, turning to the public policy, you should not, if Your Honor please, we submit, consider the statute in vacuum by itself.

You have to consider that it is part of the entire law of Louisiana wherein we're dealing with problems in forced heirship, community property where rights in family, status in family, translate into rights in property.

If Your Honor please, usually when the father or mother as it were has passed away, the person necessary to defeat the claims of a legitimate or illegitimate lies dead.

And Louisiana largely, I submit, because of its unique forced heirship system will not allow illegitimate children to participate in what the law reserves in Louisiana to the legitimate family, the wife and the legitimate children.

There's a public policy of the state of Louisiana that's unique to our forced heirship system --

Justice Thurgood Marshall: I think we have to relate that to the Fourteenth Amendment of the United States Constitution.

Mr. William A. Porteous, Iii: Yes, if Your Honor please, we certainly do and we would submit that there is definitely a rational basis, a rational public policy on the part of Louisiana.

Justice Thurgood Marshall: Of discriminating between legitimate and illegitimate children.

Mr. William A. Porteous, Iii: If Your Honor please, this you classified as discrimination has been part of our law in this United States, these 50 states since -- well, I'm sure they came in to existence.

We have discriminated with the regard to rights and inheritance.

Illegitimate children had no right to --

Justice Thurgood Marshall: That's been changed in the enlightened state, am I correct?

Mr. William A. Porteous, Iii: Some, yes.

Others, I submit --

Justice Thurgood Marshall: Why do you say that solely because a child is illegitimate, a child is denied rights that he would have if his parents had married before he was born?

Mr. William A. Porteous, Iii: Or after he was born, or had bothered to appear before a notary and acknowledge him.

Justice Thurgood Marshall: The child --

Mr. William A. Porteous, Iii: No, the parents.

Justice Thurgood Marshall: But what among those items could a child do?

Mr. William A. Porteous, Iii: A child could do nothing.

Justice Thurgood Marshall: And solely because of what the parents did, the child lose his rights.

Mr. William A. Porteous, Iii: If Your Honor please, we are first of all, I should also say dealing with the privilege here, the privilege of bringing this action.

As conferred by the state, it is not a right as such.

This is not a fundamental First Amendment right, we would submit.

And to continue answering your question Mr. Justice Marshall, the -- you refer to enlightened states.

It's very interesting that all of this is being done by the legislatures of these various states.

We submit that it is not for this Court to legislate with respect to the family law of the states.

It's quite obviously a legislative matter reserved to the wisdom of the various state legislatures.

Justice Potter Stewart: Mr. Porteous, I'm not sure I understood your reference to the -- what you called a peculiar or the unique system and policy of Louisiana of forced heirship?

Mr. William A. Porteous, Iii: Yes sir.

Justice Potter Stewart: I didn't understand that.

Could you --

Mr. William A. Porteous, Iii: Forced Heirship is this.

If a man dies and leaves property, he cannot dispose of it indiscriminately by will.

He must leave -- his wife gets half of course in the community but the remainder of the half, if he has one child, that child must have a third.

If he has two children, that child then or the children then must get 50% and he is free to dispose a 50%.

If he has three children, it would be 66 and two-thirds percent which must go to the children.

Now, when we consider the title to real property, title examiners must examine in to the whole family history of a human being to make sure some heir hasn't been left out.

Hence, you can begin to appreciate why the question of status in family is so important to a state like Louisiana?

Justice Abe Fortas: How do the other states get along with that problem?

Mr. William A. Porteous, Iii: Sir?

Justice Abe Fortas: How do the other states survive the (Voice Overlap) of that problem?

Mr. William A. Porteous, Iii: Excuse me.

I do not believe that the other states have forced heirship.

Justice Abe Fortas: Well, what difference does that make the same problem of examining title?

Mr. William A. Porteous, Iii: If Your Honor please, it's slightly different in examining a title.

You can look at the man's will.

Justice Abe Fortas: A man dies and testate and the property is inherited by X, Y and Z and that appears in the chain of title and no matter what the state is, we've got a problem.

Mr. William A. Porteous, Iii: That would be -- that I would agree with you if Your Honor please.

But let us assume and add to it that the man has left a will then has he properly disposed of his property?

That is the next question.

Justice Potter Stewart: A peculiar thing about Louisiana is that you can't, by will, disinherit to even your children.

Mr. William A. Porteous, Iii: You couldn't disinherit your legitimate children anywhere you want, except if they, I believe made an attempt on your life or something such as that.

And all of these goes back ultimately to something found in the Code Napoleon.

A strong family tradition of legitimacy caring for the heirs, caring for the members of the family, correct familial status at Roman law in the original French civil law was so all important and that remains as part of Louisiana's public policy to the state.

Justice Byron R. White: If Louisiana feels that this sort of a rule is a deterrent to certain kinds of conduct, I would suppose that it might not legitimatize so easily but I gather it's not difficult at all, is it?

Mr. William A. Porteous, Iii: Indeed, it is not sir.

We submit that Louisiana has done her best, has recognized the problem of illegitimacy and attempted to strike a balance between the social interests as it was.

Justice Byron R. White: But if the reason -- if the reason is you don't recognize the illegitimates right in this case is because of some possible impact on the conduct of other parents.

I'm not sure it has much a cut if the person knows that automatically, you can legitimatize your illegitimate children.

Mr. William A. Porteous, Iii: Mr. Justice White, I, my personal feelings would be that idea that illegitimacy is a deterrent certainly is not a very effective force.

I will conceive that.

Justice Byron R. White: And what is the state -- what is the rational basis for the statute other than, I don't understand what you're saying that this is in the family law area and that this is just not the kind of an area that the Equal Protection Clause even know how to apply to.

Mr. William A. Porteous, Iii: That is correct, if Your Honor please.

Justice Byron R. White: That's what you're suggesting and I would suppose that you would suggest that if Louisiana passes the statute and said all the illegitimate children over 20 may inherit and all the illegitimate children under 20 may not that the Equal Protection Clause just wouldn't reach that.

Mr. William A. Porteous, Iii: I submit that is correct.

Justice Byron R. White: And unless you hold, unless you go that far and rule on that basis, they're just -- there isn't much room for upholding or finding any rational basis for the statute.

Mr. William A. Porteous, Iii: Well, if Your Honor please, if we submit that the rational basis as such lies in this whole public policy respecting that.

Justice Byron R. White: But that's -- that's your -- that's what you stand on.

Mr. William A. Porteous, Iii: That's what I stand on.

Justice William J. Brennan: Well, did I misunderstand you then Mr. Porteous?

I thought you're also suggesting that this kind of rule is in the interest of enforcement of the state policy or forced heirship --

Mr. William A. Porteous, Iii: It's part of the overall policy, yes sir.

Justice William J. Brennan: Well now, which is it?

If it were that, I would think you couldn't answer Mr. Justice White that there could be a distinction drawn between illegitimates over 20 and the illegitimate under 20.

Mr. William A. Porteous, Iii: I was thinking further along the questions that Mr. Justice White asked.

Justice William J. Brennan: Well, which is it?

Is this in the interest of -- oh gosh what's the word, morality or something like that or is it in the interest of the state policy of forced heirship.

Mr. William A. Porteous, Iii: It's in the interest, if Your Honor please, we submit at the state policy or forced heirship.

Justice William J. Brennan: Now, what is forced heirship?

Is that something which comes from -- I gather that you're suggesting from a continental and --

Mr. William A. Porteous, Iii: Yes sir.

Forced heirship is simply this.

You could not disinherit your legitimate children by will.

They're entitled to a certain portion of your estate and it's important therefore that we know definitely who your children are.

Justice William J. Brennan: Incidentally, I gather that and I don't think it goes quite that far but certainly in my own state, one can't for example disinherit his wife.

Mr. William A. Porteous, Iii: I see.

Justice William J. Brennan: The state laws require that it will be a minimal portion that she must to see -- most states have that.

Mr. William A. Porteous, Iii: I imagine that certainly and probably they wouldn't --

Justice William J. Brennan: Do you think that would be sufficient to justify similar rule in these other states which don't go as far as you do in other court.

Mr. William A. Porteous, Iii: I think so.

I think so.

Justice Byron R. White: How -- what arrangements in Louisiana do you have this according to birth.

Mr. William A. Porteous, Iii: Upon the birth of any child sir, the physician or midwife, we do have some midwives left is by statute, bound to certify --

Justice Byron R. White: Do you think normally is done?

Mr. William A. Porteous, Iii: Yes sir, it normally is --

Justice Byron R. White: With legitimate or illegitimate children?

Mr. William A. Porteous, Iii: With both.

Anyone in attendance have --

Justice Byron R. White: So is there any real problem in Louisiana knowing whose mother a child is?

Mr. William A. Porteous, Iii: Generally not.

Generally not.

As a matter of fact, the children in this particular case, the matter in which it was proven that they were in fact the legitimate was by the introduction of --

Justice Thurgood Marshall: When was this -- when was this statute passed?

Mr. William A. Porteous, Iii: The present form of the statute was I believe its last amendment was probably 1966.

Justice Thurgood Marshall: When was the original?

Mr. William A. Porteous, Iii: It probably goes back to before the Code of 1870 sometime I believe within --

Chief Justice Earl Warren: Is Louisiana one of those states, southern states that prohibited Negroes from marrying (Voice Overlap)?

Mr. William A. Porteous, Iii: Yes sir, it was.

I submit that since the decision that all of that must go by the board and rightly --

Chief Justice Earl Warren: I understood you to say though that from the very beginning of statehood, Louisiana had always had as a public policy reserving family life and encouraging it.

Mr. William A. Porteous, Iii: That is correct sir.

Chief Justice Earl Warren: Did they know in that situation?

Mr. William A. Porteous, Iii: With regard to slaves?

Yes.

Chief Justice Earl Warren: I submit the answer is in the negative.

Justice Abe Fortas: Now, the opinion of the court below faces for the statute on the morals and general welfare because it discourages bringing children into the world out of wedlock.

They didn't say anything about this forced heir, is that right?

Mr. William A. Porteous, Iii: Indeed it doesn't if Your Honor --

Justice Abe Fortas: Any other decisions or what's the basis for your statement?

Is it the logic of the situation or do you have any authority?

Mr. William A. Porteous, Iii: It's the logic of the situation.

Justice Abe Fortas: You don't have the Louisiana and neither the legislature nor the court has said that, is that right?

Mr. William A. Porteous, Iii: That is correct sir.

This is the very first declaration and I submit that we have by any court.

Justice Abe Fortas: Is there anything I suppose there were debates before the statute was amended in "66"

Mr. William A. Porteous, Iii: None of this is recorded unfortunately in our state, Your Honor.

Justice Abe Fortas: So this is just your deduction.

Mr. William A. Porteous, Iii: This, we submit is the logic of the situation and we believe that under the rules of Morey versus Doud and the other cases that the statute should be presumed to be constitutional in this situation and a rational basis if one can be found presumed likewise.

And if Your Honor pleases, we submit coming back to Louisiana has recognized the problem of illegitimacy.Man has attempted to balance the competing social interests.

She has provided a very ready and easy means whereby persons of illegitimate birth may be legitimated.

The subsequent marriage of their parents and informal acknowledgement as where the children would live with them would make those children legitimate.

Likewise, the appearance before a notary and two witnesses to the effect that this is my child effectively legitimates the child.

Louisiana has also recognized that illegitimates have a very limited right of inheritance when there are no legitimate heirs and illegitimate may be called to the inheritance of a parent.

Louisiana has provided means and statutory means whereby they may prove their proper heirship and the rules of evidence are set out in the civil code in that regard.

But if Your Honor please, Louisiana also has an interest in preserving legitimate family relationships in strengthening a preference in favor of the legitimate relations as opposed to the less fortunate illegitimates and this is part of the public policy of the state and we submit therefore it has a very rational basis.

Furthermore, closing, we would state that the Fourteenth Amendment was never intended to become a vehicle whereby the equal protection of the law's clause was intended to become a vehicle whereby the national government might obtain power with regard to those matters traditionally committed to the states.

Gentlemen, we, on behalf of clients, I thank you for your attention.

Chief Justice Earl Warren: Mr. Porteous, may I ask you this.

What is your enforced inheritance statute do in the case of a mother that has one legitimate child and one illegitimate child?

Mr. William A. Porteous, Iii: The legitimate child sir, would take precedents.

Chief Justice Earl Warren: Would take everything including those to children?

Mr. William A. Porteous, Iii: Yes sir.

Chief Justice Earl Warren: And the illegitimate child would take nothing?

Mr. William A. Porteous, Iii: That is correct, sir.

Assuming she left no will.

If she had left a will with one child in the situation which you posit, she would have had to have left one-third to that legitimate child and the remaining two-third, she could have done with as she pleased.

But if there were no will then she would have had to, everything would have gone to that one legitimate child.

Chief Justice Earl Warren: Mr. Dorsen.

Mr. Porteous, you may have your seat.

Mr. Dorsen.

Justice Abe Fortas: Professor Dorsen may I ask you.

You said you would file a memorandum stating the distinctions that are made in various state laws between legitimate and illegitimate children.

Will you cover aspects of that subject --?

Rebuttal of Norman Dorsen

Mr. Norman Dorsen: I'd be happy to do that.

On page 18 of our brief, we do have a summary of that but I will submit a supplemental memorandum.

I shall be very brief in rebuttal.

First of all, I would like to say that it's not true that the brief of the appellant says that this is a racist statute.

That is not found in our brief and we are not asserting it to this Court.

Now, Mr. Porteous did mention several aspects of Louisiana property law.

I think it's worth pointing to the Court that there is a very recent article in the Tulane Law Review that was published within the last few months on this problem.

It's 28 -- it's the Louisiana Law Review, 28 Louisiana Law Review 110 just published on page 123, the writer of the comment states, "The discrimination in our inheritance law seems no longer justifiable on any rational basis."

This is the discrimination against illegitimates.

And in case one is led to think that this is a newfangled idea, I would like to draw the attention of the Court to an 1851 Louisiana case which of course was decided before the Fourteenth Amendment in which the Court in Dupre v. Carruthers (ph) also cited in Louisiana Law Review set in language that's rather more graphic than I am capable of formulating, "It is true that the legislation has ever failed in this object to honor matrimony and discourage concubinage for probably no one was ever deterred from concubinage by the consideration that his innocent offspring would be the victim of his guilt and the only effect has been that the guilty parents have eaten the grapes while the child's teeth with tears in his eyes had been set on the edge."

And that's from Louisiana --

Justice Hugo L. Black: What case was that?

Mr. Norman Dorsen: That was Dupre v. Carruthers (ph) 6 Louisiana Annotation 156.

Chief Justice Earl Warren: Is that in your brief Mr. Dorsen?

Mr. Norman Dorsen: It is not because it isn't -- it's in the Article in 28 Louisiana Law Review.

Justice Byron R. White: Mr. Dorsen, what about state regulations that aliens can't vote?

Mr. Norman Dorsen: We think that there are perfectly reasonable grounds for distinguishing that situation from this situation.

Justice Byron R. White: Well, it can't really help -- if Louisiana permitted, that's to say that Louisiana permitted people 18 years old to vote and -- but said only citizens can vote.

Could the child do anything at all about its alien status?

Mr. Norman Dorsen: No, it could not.

Justice Byron R. White: It could be helpless, absolutely helpless.

Mr. Norman Dorsen: That's quite true.

But first --

Justice Byron R. White: You wouldn't apply this rule, your --

Mr. Norman Dorsen: I would not apply this rule because the ground of the distinction would not be on the basis of illegitimacy which --

Justice Byron R. White: But it wouldn't be to alienate your status.

Mr. Norman Dorsen: That's quite true.

Justice Byron R. White: About which nobody can do anything.

Mr. Norman Dorsen: Well, the person can become a citizen in most situations.

Justice Byron R. White: Well, I don't know.

You think the child can become a citizen for --

Mr. Norman Dorsen: Well, it might be.

Justice Byron R. White: Not unless his parents became citizens.

Mr. Norman Dorsen: The difference between an alien and illegitimate among other things is that the illegitimate can never change a status.

The status is determined by the complex of very subtle factors which had been elaborated at some length by authorities that are cited in our brief and the brief of amicus curiae.

I would not think that the situation of the alien and the situation of the illegitimate is fairly comparable though I would concede that the distinction you make on that narrow point is a valid one.

Justice William J. Brennan: What do you have to say to Mr. Porteous argument?

Really, this is in the service of the policy enforcement.

Mr. Norman Dorsen: Well, I have seen no substantial authority in the Louisiana courts to that effect.

It is conceivable that there is such a policy but I do not --

Justice William J. Brennan: Anyway, that's not the ground on which --

Mr. Norman Dorsen: The next thing I was going to say was that the lower court did not attempt to justify on that ground and in any event, that is not this case.

This is a wrongful death action which involves considerations that are somewhat distinct from any of the property consideration.

Justice William J. Brennan: You also have the heirship purpose here.

Mr. Norman Dorsen: That is quite true but the purpose of this particular survivorship statute does have the element of deterring toward feasorship I think the only argument that Mr. Porteous made that seemed to me the solidly base in terms of possibly persuading this Court was that the Fourteenth Amendment was not applicable to the case.

And if that is the ground that he set at one point that he is prepared to stand on, I would say that logically, that would be a ground that would cover the issue.

But apart from that when one turns especially to the particular situation that we're confronted with here, I see no basis at all for validating statute.

Justice William J. Brennan: (Voice Overlap).

Mr. Norman Dorsen: I am not conceding that point.

I'm not Mr. Justice.

Thank you very much.

Chief Justice Earl Warren: Very well.

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Glona v. American Guarantee Co. - Oral Argument, Part 1

Fri, 18 Nov 2011 02:34:37 +0000

Case:

Glona v. American Guarantee Co.

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639_19680327-argument-1.mp3

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639_19680327-argument-1.xml

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