Jones v. Heckler

ALBERT V. BRYAN, Senior Circuit Judge,

dissenting:

By its April 18, 1983 order of vacation and remand, the Supreme Court has emphatically adjudged as erroneous this *929 Court’s first opinion which affirmed, with me in dissent, the order of the District Court upholding the intestacy inheritance statutes of Mississippi and West Virginia. Additionally, in my mind, the remand explicitly pointed us to the sources for resolution of the issues presently before us. These include the statute of Mississippi and the decision of the Supreme Court of Appeals of West Virginia in Adkins v. McEldowney, 280 S.E.2d 231 (W.Va.1981). With these directions the Jarndyce and Jarndyce litigation now before us may be “squeezed dry,” as Dickens put it, and the unfairly treated illegitimate children in suit will enjoy the benefits of Social Security provided ' for them by Congress.

I

The Mississippi statute in pertinent part, as amended in 1981, is set forth in the majority opinion of this Court and reads as follows:

An illegitimate shall inherit from and through the illegitimate’s mother.... An illegitimate shall inherit from and through the illegitimate’s natural father ... if:

(a) The Natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or

(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or

(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child.

Miss.Code § 91-1-15 (Cum.Supp.1982).

With sincere deference to my brothers, I must disagree with the majority’s sua sponte determination to ask the Mississippi Supreme Court to interpret this statute, for I discern no lack of clarity in its directions. To me, this enactment violates the Equal Protection Clause of the Fourteenth Amendment. Trimble v. Gordon, 430 U.S. 762, 766-776 , 97 S.Ct. 1459, 1463-1468 , 52 L.Ed.2d 31 (1977). On its face, the statute impermissibly exacts obligations of the illegitimate to qualify for inheritance from the father that are not imposed on the legitimate. Pickett .v. Brown, - U.S. -, 103 S.Ct. 2199 , 76 L.Ed.2d 372 (1983); Mills v. Habluetzel, 456 U.S. 91 , 102 S.Ct. 1549 , 71 L.Ed.2d 770 (1982).

II

The majority opinion in the instant case carefully notes that for West Virginia Adkins v. McEldowney cited in the Supreme Court’s remand, declares invalid the statute of West Virginia restricting inheritance by an illegitimate child to inheritance from his or her mother. The majority of this Court so concedes and thus agrees that the judgment of the District Court on this point should be reversed.

In fine, I suggest that disposition of this appeal be by way of a condensed per curiam.