Opposition Brief — Khristy Goins Rismiller, Tutrix for Daniel Edward Goins, et al., Petitioners v. Gemini Insurance Company, et al.

Supreme Court briefJan 28, 2022

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No. 21-955

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------KHRISTY GOINS RISMILLER, TUTRIX FOR

DANIEL EDWARD GOINS, et al.,

Petitioners,

GEMINI INSURANCE COMPANY, et al.,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The Supreme Court Of Louisiana

---------------------------------♦--------------------------------RESPONDENT GEMINI INSURANCE

COMPANY’S BRIEF IN OPPOSITION

---------------------------------♦--------------------------------SIDNEY W. DEGAN, III

SDegan@degan.com

TRAVIS L. BOURGEOIS*

*Counsel of Record

TBourgeois@degan.com

DEGAN, BLANCHARD & NASH

400 Poydras Street, Suite 2600

New Orleans, LA 70130

Telephone: (504) 529-3333

Facsimile: (504) 529-3337

Attorneys for Respondent

Gemini Insurance Company

January 28, 2022

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED FOR REVIEW

Respondent disagrees with the Question Presented

as characterized by Petitioners. Instead, the Questions

Presented are more properly characterized as follows:

Does a purely statutory, state-law created right of

action to recover in tort, which allows adopted children an equal, though not identical right of action

as non-adopted children, run afoul of the Fourteenth Amendment?

Does a state have a right to define the right to assert a statutorily granted cause of action, when

such enactments are not based upon race, sex, belief, legitimacy of birth, or any other suspect or

semi-suspect class, but instead, are based upon a

rational distinction as to adopted children?

Can Petitioners claim unequal treatment when

they have a right to sue for the death of family

member by adoption, which is equal to that provided to non-adopted children under La. Civ. Code

arts. 2315.1 and 2315.2?

Where inheritance is not at issue; where no fundamental right is at stake; where the rights of “illegitimate” children are not concerned; and where

the Louisiana legislature has a rational basis in

limiting access to a purely state-law right of action

in tort; should this Court intervene in a case twice

argued before the Louisiana Supreme Court?

PARTIES TO THE PROCEEDING

The parties to the proceeding in the United States

Supreme Court are:

Petitioners:

1) Khristy Goins Rismiller, Tutrix for Daniel

Edward Goins;

David Watts;

Respondents:

Gemini Insurance Company;

Kenneth Chad Boone d/b/a Boone Trucking;

Keith Boone Trucking, LLC;

Gemini Insurance Company;

Mark Isiah Gordon;

Attorneys:

Franklin G. Shaw

Leger & Shaw

512 East Boston Street

Covington, LA 70433

Ph: (985) 809-6625

E-mail: fshaw@legershaw.com

Counsel for Petitioners, Khristy Goins

Rismiller, Tutrix for Daniel Edward Goins

and David Watts

iii

PARTIES TO THE PROCEEDING – Continued

D. Blayne Honeycutt

Fayard & Honeycutt

1211 S. River Road

Denham Springs, LA 70726

Ph: (225) 664-0304

E-mail: dbhoneycutt@fayardlaw.com

Counsel for Plaintiff, David Watts

Charles S. Norris

Norris Law Firm, LLC

8 N. Oak Street

Vidalia, LA 71373

Ph: (318) 336-1999

E-mail: chuck@norrisattys.com

Counsel for the Goins Plaintiffs

Jeremy Z. Soso

The Lambert Firm

701 Magazine Street

New Orleans, LA 70130

Ph: (504) 581-1750

E-mail: jsoso@thelambertfirm.com

Counsel for Plaintiff, Sheila Smith

Travis L. Bourgeois, Esq.

Degan, Blanchard & Nash

400 Poydras Street, Suite 2600

New Orleans, LA 70130

Ph: (504) 529-3333

E-mail: tbourgeois@degan.com

Counsel for Respondent, Gemini

Insurance Company

PARTIES TO THE PROCEEDING – Continued

Timothy W. Hassinger

Galloway, Johnson, Tompkins, Burr & Smith

3 Sanctuary Boulevard, 3rd Floor

Mandeville, LA 70471

Ph: (985) 674-6680

E-mail: thassinger@gallowaylawfirm.com

Counsel for Respondent, Mark Gordon

Andre C. Gaudin

Burglass Tankersley

5213 Airline Drive

Metairie, LA 70001

Ph: (504) 836-0414

E-mail: agaudin@burglass.com

Counsel for Respondents, Kenneth Boone

d/b/a Boone Trucking

Alexander T. Reinboth

Assistant Attorney General

Louisiana Department of Justice

Civil Division

Post Office Box 94005

Baton Rouge, LA 70804

Ph: (225) 326-6000

E-mail: reinbotha@ag.louisiana.gov

Counsel for Respondent, Attorney General

Jeff Landry

CORPORATE DISCLOSURE STATEMENT

Gemini Insurance Company is owned at 100% by

the W.R. Berkley Corporation, which is traded publicly

on the NYSE.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........

PARTIES TO THE PROCEEDING ......................

CORPORATE DISCLOSURE STATEMENT ......

TABLE OF CONTENTS ......................................

TABLE OF AUTHORITIES ................................. vii

CITATION AND OPINIONS AND ORDERS ENTERED IN THE CASE .....................................

BASIS FOR JURISDICTION IN THIS COURT ...

CONSTITUTIONAL PROVISIONS, STATUTES,

AND OTHER AUTHORITIES INVOLVED IN

THIS CASE ......................................................

RECORD CITATIONS .........................................

COUNTERSTATEMENT OF THE CASE ...........

UNDERLYING FACTS AND THE MULTIPLE CLAIMS AT ISSUE .......................

INITIAL RULING BY THE LOUISIANA

THIRD CIRCUIT REGARDING WHICH

LITIGANTS HAVE A RIGHT OF ACTION ...

FURTHER PROCEEDINGS AND APPEAL TO THE LOUISIANA SUPREME

COURT ......................................................

TABLE OF CONTENTS – Continued

Page

ARGUMENTS FOR DENYING THE PETITION ....

THE LOUISIANA SUPREME COURT’S

DECISION REGARDING A STATE LAW

TORT CLAIM IS CORRECT AND DOES

NOT CONFLICT WITH THE CONSTITUTION, ANY DECISION OF THIS COURT

OR ANY OTHER FEDERAL COURT OF

APPEALS, AND THERE IS NO SPLIT

AMONG THE FEDERAL CIRCUITS. FURTHER REVIEW IS NOT WARRANTED .....

THERE IS NO REASON TO EXTEND

CASES INVOLVING DEPRIVATION OF

RIGHTS TO “ILLEGITIMATE” CHILDREN TO STATUTES DEALING WITH

ADOPTED CHILDREN, WHO ARE GIVEN

RIGHTS ..................................................... 18

INTERMEDIATE SCRUTINY DOES NOT

APPLY; RATIONAL BASIS IS THE PROPER

TEST .......................................................... 24

THERE IS NO CAUSE FOR THIS COURT

TO REVIEW THE LOUISIANA SUPREME

COURT’S ANALYSIS OF STATE LEGISLATION, AND ITS REJECTION OF PETITIONERS’ FAULTED METHODOLOGY ... 32

CONCLUSION..................................................... 36

vii

TABLE OF AUTHORITIES

Page

CASES

Allen v. Burrow,

505 So.2d 880 (La. App. 2d Cir.),

writ denied, 507 So.2d 229 (La. 1987) .............. 13, 16

Brehm v. Harris,

619 F.2d 1016 (3rd Cir. 1980) ............................ 11, 25

Cabrera v. Attorney General,

921 F.3d 401 (3rd Cir. 2019) ........................ 11, 22, 25

Chatelain v. State, Dep’t of Transp. & Dev.,

586 So.2d 1373 (La. 1991) ................................. 30, 31

Chavez-Cornejo v. Holder,

327 Fed.Appx. 760 (9th Cir. 2009) ..........................11

Christensen v. Ward,

916 F.2d 1462 (10th Cir. 1990),

cert. denied, 111 S.Ct. 559, 112 L.Ed.2d 565 ..........10

Clark v. Jeter,

486 U.S. 456, 108 S.Ct. 1910,

100 L.Ed.2d 465 (1988) ..................................... 24, 27

Colaianni v. Immigration and

Naturalization Service,

490 F.3d 185 (2nd Cir. 2007) ............................. 11, 22

Crier v. Whitecloud,

496 So.2d 305 (La. 1986) ................................... 10, 25

Dandridge v. Williams,

397 U.S. 471, 90 S.Ct. 1153,

25 L.Ed.2d 491 (1970) ....................................... 17, 25

viii

TABLE OF AUTHORITIES – Continued

Page

Dent v. Sessions,

900 F.3d 1075 (9th Cir. 2018), cert. denied,

139 S.Ct. 1472, 203 L.Ed.2d 692 (2019) ........... 12, 25

Doe v. Sundquist,

943 F.Supp 886 (M.D. Tenn. 08/23/96), aff ’d,

106 F.3d 702 (6th Cir. 1997), cert. denied,

118 S.Ct. 51, 139 L.Ed.2d 16............................. 11, 12

Domingue v. Carencro Nursing Home, Inc.,

520 So.2d 996 (La. App. 3rd Cir. 1987),

writ denied, 522 So.2d 565 (La. 1988) ................ 4, 17

Edelstein v. Wilentz,

812 F.2d 128 (3rd Cir. 1987) ......................................9

Estate of Burch v. Hancock Holding Co.,

09-1839 (La. App. 1 Cir. 5/7/10), 39 So.3d 742 .... 13, 16

F.C.C. v. Beach Commc’ns, Inc.,

508 U.S. 307, 113 S.Ct. 2096,

124 L.Ed.2d 211 (1993) ...........................................25

Ferri v. Ackerman,

444 U.S. 193, 100 S.Ct. 402,

62 L.Ed.2d 355 (1979) ...............................................9

Gibbs v. Illinois Cent.,

125 So. 445 (La. 1929) .............................................14

Glona v. American Guarantee,

391 U.S. 73, 88 S.Ct. 1515,

20 L.Ed.2d 441 (1968) ..................................... passim

Gomez v. Perez,

409 U.S. 535, 93 S.Ct. 872,

35 L.Ed.2d 56 (1973) ....................... 18, 23, 24, 27, 29

TABLE OF AUTHORITIES – Continued

Page

Haas v. Baton Rouge Gen. Hosp.,

364 So.2d 944 (La. 1978) ...........................................9

Heller v. Doe,

509 U.S. 312, 113 S.Ct. 2637,

125 L.Ed.2d 257 (1993) ...........................................12

Hernandez v. State, DOTD,

02-162 (La. App. 4 Cir. 10/16/02),

841 So.2d 808, writ denied, 03-261 (La. 4/25/03),

842 So.2d 399 ...................................................... 4, 17

Hubgh v. New Orleans and

Carrollton Railroad Company,

6 La.Ann. 495 (La. 1851).........................................33

In re Puckett,

49,046 (La. App. 2 Cir. 4/17/14), 137 So.3d 1264 ......35

Jenkins v. Mangano,

2000-0790 (La. 11/28/00), 774 So.2d 101 ................30

King v. Schweiker,

647 F.2d 541 (5th Cir. 1981) .............................. 16, 25

Langlois v. Noble,

465 So.2d 108 (La. App. 4th Cir.),

writ denied, 468 So.2d 1209 (La. 1985) ..................16

Lehnhausen v. Lake Shore Auto Parts Co.,

410 U.S. 356, 93 S.Ct. 1001,

35 L.Ed.2d 351 (1973) .............................................25

Levy v. State Through Charity Hosp.,

216 So.2d 818 (La. 1968) ................................... 14, 33

TABLE OF AUTHORITIES – Continued

Page

Levy v. State Through Charity Hosp.,

391 U.S. 68, 88 S.Ct. 1509,

20 L.Ed.2d 436 (1968) ..................................... passim

Lewis v. Allis-Chalmers Corp.,

615 F.2d 1129 (5th Cir. 1980) ..................................16

Logan v. Zimmerman Brush Co.,

455 U.S. 422, 102 S.Ct. 1148,

71 L.Ed.2d 265 (1982) ...............................................9

Lyng v. Int’l Union, United Auto., Aerospace

& Agr. Implement Workers of Am.,

485 U.S. 360, 108 S.Ct. 1184,

99 L.Ed.2d 380 (1988) ....................................... 24, 25

Martinez v. Attorney General,

761 Fed.Appx. 133 (3rd Cir. 2019) .............. 10, 11, 25

Martinez v. California,

444 U.S. 277, 100 S.Ct. 553,

62 L.Ed.2d 481 (1980) ......................................... 9, 33

Massachusetts Bd. of Ret. v. Murgia,

427 U.S. 307, 96 S.Ct. 2562,

49 L.Ed.2d 520 (1976) ................................. 10, 24, 25

Mathews v. Lucas,

427 U.S. 495, 96 S.Ct. 2755,

49 L.Ed.2d 651 (1976) ....................................... 28, 29

Miles v. Illinois Central Gulf Railroad Co.,

389 So.2d 96 (La. App. 4th Cir.), writ denied,

394 So.2d 612 (La. 1980) ............................. 13, 16, 25

Nelson v. Burkeen Const. Co.,

605 So.2d 681 (La. App. 2nd Cir. 1992) .............. 4, 17

TABLE OF AUTHORITIES – Continued

Page

Nordlinger v. Hahn,

505 U.S. 1, 112 S.Ct. 2326,

120 L.Ed.2d 1 (1992) ...............................................17

Pers. Adm’r of Massachusetts v. Feeney,

442 U.S. 256, 99 S.Ct. 2282,

60 L.Ed.2d 870 (1979) ....................................... 16, 27

Pickett v. Brown,

462 U.S. 1, 103 S.Ct. 2199,

76 L.Ed.2d 372 (1983) .............................................20

Puentes-Bejarano v. Keisler,

250 Fed.Appx. 25 (5th Cir. 2007) ...................... 11, 22

Rismiller v. Gemini Ins. Co.,

2020-0313 (La. 12/11/20),

reh’g granted, 2020-00313 (La. 1/26/21), and

opinion vacated on reh’g, 2020-00313 (La. 6/30/21),

reh’g denied, 2020-00313 (La. 9/30/21) ................... 4, 5

Roche v. Big Moose Oil Field Truck Serv.,

381 So.2d 396 (La. 1980) ................................... 13, 33

Ross v. Moffitt,

417 U.S. 600, 94 S.Ct. 2437,

41 L.Ed.2d 341 (1974) ....................................... 16, 27

San Antonio Independent

School District v. Rodriguez,

411 U.S. 1, 93 S.Ct. 1278,

36 L.Ed.2d 16 (1973) ......................................... 16, 24

Sessions v. Morales-Santana,

137 S.Ct. 1678, 198 L.Ed.2d 150 (2017) .................28

xii

TABLE OF AUTHORITIES – Continued

Page

Silver v. Silver,

280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929) .......10

Simmons v. Brooks,

342 So.2d 236 (La. App. 4th Cir. 1977) ...................17

Smart v. Ashcroft,

401 F.3d 119 (2nd Cir. 2005) ....................... 10, 11, 22

Sonnier v. Chater,

66 F.3d 320 (5th Cir. 1995) (unpub.) ........... 11, 21, 22

State v. Granger,

2007-2285 (La. 2008), 982 So.2d 779 ......................31

Trimble v. Gordon,

430 U.S. 762, 97 S.Ct. 1459,

52 L.Ed.2d 31 (1977) ...............................................28

United States v. MacCollom,

426 U.S. 317, 96 S.Ct. 2086,

48 L.Ed.2d 666 (1976) .............................................16

United States v. Mayea-Pulido,

946 F.3d 1055 (9th Cir. 2020),

cert. denied, 141 S.Ct. 101,

207 L.Ed.2d 179 (2020) ...........................................26

Walker v. Vicksburg, S. & P. Ry. Co.,

34 So. 749 (La. 1903) ...............................................13

Walton v. Hutton,

457 So.2d 1230 (La. App. 1st Cir. 1984) ..................35

Warren v. Richard,

296 So.2d 813 (La. 1974) ............................. 29, 30, 31

xiii

TABLE OF AUTHORITIES – Continued

Page

Weber v. Aetna Cas. & Sur. Co.,

406 U.S. 164, 92 S.Ct. 1400,

31 L.Ed.2d 768 (1972) ..................................... passim

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV .......................................... 1, 16

STATUTES

28 U.S.C. 1254 ...............................................................1

La. Civ. Code art. 179..................................................31

La. Civ. Code art. 195..................................................30

La. Civ. Code art. 199.......................................... passim

La. Civ. Code art. 2315.1 ..................................... passim

La. Civ. Code art. 2315.2 ..................................... passim

La. Civ. Code art. 3506.......................................... 35, 36

La. Ch. Code art. 1256 ........................................ passim

La. Ch. Code art. 1264 ................................................13

La. Rev. Stat. 9:461 .....................................................13

CITATION AND OPINIONS AND

ORDERS ENTERED IN THE CASE

The Opinion of the Louisiana Supreme Court is reported at ___ So.3d ___, 2021 WL 2679552. (Appx. A to

Petition).

---------------------------------♦---------------------------------

BASIS FOR JURISDICTION IN THIS COURT

The jurisdiction of this Court is alleged by the Petitioners to be proper under 28 U.S.C. 1254(1).

---------------------------------♦---------------------------------

CONSTITUTIONAL PROVISIONS,

STATUTES, AND OTHER AUTHORITIES

INVOLVED IN THIS CASE

United States Constitution, Amendment 14, Sec. 1:

Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction thereof, are citizens of the United States

and of the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

---------------------------------♦---------------------------------

RECORD CITATIONS

Citations to the Petition for Writ of Certiorari filed

by the Petitioners are demarcated as “Pet. ___.” Citations to the Appendix contained in the Petition are demarcated as “Appx. ___.”

---------------------------------♦---------------------------------

COUNTERSTATEMENT OF THE CASE

Gemini Insurance Company (“Gemini”) takes issue with Petitioners’ description of the “Opinions Below” and the “Statement of the Case.” See Pet. 1-3, 3-8.

A. Underlying Facts and the Multiple Claims

at Issue.

Petitioners are children born of the marriage between Richard Stewart, Jr. and Lisa Watts. Appx. 99a.

Stewart and Watts gave Petitioners up for adoption

when they were minors, years before the accident. Id.1

Goins was adopted by George and Joyce Goins, Richard

Stewart’s uncle and aunt. Id. Watts was adopted by his

maternal grandparents, Mary and Jimmy Watts. Id.

The accident at issue unfortunately resulted in the

death of Richard Stewart and two of his children,

George Stewart and Vera Cheyenne Stewart. Id.

George and Vera were children of Richard Stewart and

Brandi Hardi, who were not married. Id. George and

Vera were not under the custody of Richard Stewart.

Goins was adopted in 1991, and Watts was adopted in 2003.

See Record below, at 151-52.

Jimmy and Tammy Johnese had custody of George,

and Raymond and Donna Kelly had custody of Vera.

Id.

Multiple claims were asserted in three separate

survival and wrongful death actions. Appx. 99a. In addition to Petitioners’ lawsuits, claims were also filed by

the Stewart Succession; Stewart’s parents, Richard

Stewart, Sr. and Vera Stewart; and Vera’s custodians,

Raymond and Donna Kelly. Appx. 100a. Defendants

filed Exceptions of No Right of Action in the trial court

proceedings to determine who, among these multiple

claimants, had the right to sue for the death of Richard,

George and Vera under the Louisiana survival and

wrongful death statutes. Id. The trial court denied all

exceptions, and defendants sought Supervisory Writs

from the Louisiana Third Circuit Court of Appeal.

Appx. E.

B. Initial Ruling by the Louisiana Third Circuit Regarding Which Litigants Have a

Right of Action.

In a complex decision applying the relevant Louisiana Code articles, and the well settled law of Louisiana, the Court of Appeal determined who had valid

rights of action. Appx. E. In part of that decision, the

Court held that Petitioners have no right of action to

sue for the death of their natural father and natural

siblings, because of their adoption by new parents.

Appx. 106a-107a. The Court of Appeal applied well

settled Louisiana law establishing that children given

up for adoption may not sue for the death of a natural

parent or sibling. Id., citing to Domingue v. Carencro

Nursing Home, Inc., 520 So.2d 996 (La. App. 3rd Cir.

1987), writ denied, 522 So.2d 565 (La. 1988); Nelson v.

Burkeen Const. Co., 605 So.2d 681 (La. App. 2nd Cir.

1992); and Hernandez v. State, DOTD, 02-162 (La. App.

4 Cir. 10/16/02), 841 So.2d 808, writ denied, 03-261 (La.

4/25/03), 842 So.2d 399. Id.

In a subsequent interlocutory appeal to the Louisiana Supreme Court, Petitioners raised constitutional

challenges for the first time. The Louisiana Supreme

Court granted supervisory writs, and remanded the

case for Petitioners to assert constitutional challenges.

Appx. 21a.

C. Further Proceedings and Appeal to the Louisiana Supreme Court.

The trial court ruled that La. Civ. Code arts. 199,

2315.1 and 2315.2 are unconstitutional as applied to

children given in adoption, and denied defendants’ reasserted exceptions of no right of action. Appx. C. Upon

Gemini’s appeal, the Louisiana Supreme Court took in

briefing, heard oral argument, and rendered an initial

ruling. Appx. B.2 Rismiller v. Gemini Ins. Co., 20200313 (La. 12/11/20), reh’g granted, 2020-00313 (La.

1/26/21), and opinion vacated on reh’g, 2020-00313

(La. 6/30/21), reh’g denied, 2020-00313 (La. 9/30/21).

The initial decree was written for the majority by retired

Judge James Boddie, Jr., sitting pro tempore due to a vacancy on

the Court. Appx. B.

However, that ruling never became final, or the “Opinion” or “holding” of the Court, because Gemini timely

filed an Application for Rehearing, pointing out legal

errors in the initial decree, which was granted by all

seven elected and then-sitting Justices of the Louisiana Supreme Court. Appx. A (“Opinion”) 2a; Appx. J.3

Gemini objects to Petitioners’ suggestion that the

Supreme Court issued any other “holding” prior to the

decision on rehearing,4 which is the final and only “ruling” of the Louisiana Supreme Court. Opinion. Justice

John Weimer became Chief Justice after Justice Johnson’s retirement, and newly elected Justices McCallum

and Griffin, together with the other Justices, heard arguments and reconsidered the initial decree. Chief Justice Weimer authored the new majority Opinion of the

Louisiana Supreme Court, incorporating his former

dissenting Opinion. Id. The Court vacated its original

decree. Opinion 11a, 12a.

Gemini also objects to any suggestion that the

Louisiana Supreme Court issued any decisions or

holdings with respect to constitutionality in its initial

decree of December 11, 2020.5 Appx. B. The initial decree did not pass on any issue of constitutionality.

Appx. 17a-30a. The decision turns only on the issue of

Though the Appendix does not show it, the vote to grant a

rehearing was unanimous. Rismiller, supra, at 2021 WL 248291

(Mem).

Cf. Pet. ii, vi, 2, 7, 18.

Cf. Pet. ii.

whether Petitioners have a right of action. Id., Opinion

2a. Thus, Petitioners’ arguments that the Supreme

Court issued “diametrically contrary” rulings with respect to constitutional issues is unfounded.6 The initial

decree merely vacated that part of the trial court’s

judgment declaring the code articles unconstitutional,

without discussion. Appx. 30a. Former Chief Justice

Johnson did author a concurring Opinion discussing

constitutional issues, Appx. 31a-34a, but that concurrence was not part of the “majority” decision, and never

became a ruling or holding of the Court. Opinion 2a,

Appx. 17a-30a.

Justice Weimer authored a substantial dissenting

Opinion on December 11, 2020, fully discussing both

issues at bar, including constitutional issues. Appx.

50a-57a. Justice Crichton also dissented in the initial

decision, authoring a separate Opinion agreeing with

Justice Weimer and assigning additional reasons.

Appx. 58a-59a. The dissenting Opinion was adopted as

the final Opinion of the Louisiana Supreme Court.

Opinion 3a, 10a.

Respondent also takes issue with Petitioners’

characterization that the final decree of the Louisiana

Supreme Court concerned only the issue of right of action.7 Rather, Chief Justice Weimer also discussed why

the articles do not deprive Petitioners of constitutional

rights, including equal protection, and adopting the

prior dissenting Opinion as the holding of the Court.

Cf. Pet. ii.

Cf. Pet. 2, 7.

Opinion 9a-11a. Chief Justice Weimer’s discussion of

the constitutional issues in the decision rendered on

June 20, 2021 is the only holding of the Louisiana Supreme Court. Justice Griffin wrote one paragraph in

dissent to voice concerns about constitutionality. Appx.

A. Justice Genovese dissented for the reasons expressed in the original majority Opinion and those assigned by Justice Griffin. Id.

The Court denied Petitioners’ petition for rehearing. Appx. K. Petitioners are incorrect in suggesting

that the Louisiana Supreme Court issued inconsistent

opinions on constitutional issues in this case.

---------------------------------♦---------------------------------

ARGUMENTS FOR DENYING THE PETITION

A. The Louisiana Supreme Court’s Decision

Regarding a State Law Tort Claim is Correct and Does Not Conflict With the Constitution, Any Decision of This Court or Any

Other Federal Court of Appeals, and There

is No Split Among the Federal Circuits. Further Review is Not Warranted.

Louisiana law provides a right of action for children who are given in adoption, such as Petitioners, to

sue for the death of their parents and siblings “by

adoption.” Opinion 10a; 56a; 58a; La. Civ. Code arts.

2315.1(A),(D); 2315.2(A),(D). Thus, both non-adopted

and adopted children, including Petitioners, have an

equal right of action to sue. Id. This belies any suggestion that an adopted child in Louisiana “has no

constitutional rights after birth.” Pet. 28. Rather, the

adopted child’s former right of action to sue for the

death of natural family members, prior to his adoption,

has been legislatively redirected toward the child’s

new family, parents, and siblings, created by his adoption. Opinion 4a-7a, 10a. Appx. 37a-49a. This is entirely rational, because in an act of adoption, the

former parent/child/sibling relationship, and filiation,

is terminated “for all purposes.” La. Civ. Code art. 199.

The adopting parents become the child’s parents as

a matter of law. Id. And, the adopted child is relieved

of all duties and divested of all legal rights with respect to his natural parents and blood relatives, except the right to inherit. Opinion 7a; La. Civ. Code

art. 199; La. Ch. Code art. 1256.8 Through adoption,

a new family unit is created, and Petitioners have a

right to sue under articles 2315.1 and 2315.2 for the

death of these persons, equal to that of any other

child in Louisiana.

This case is not, and has never been about, Petitioners’ right to inherit from their natural parents or

siblings. Petitioners acknowledge they retain inheritance rights. Pet. 20, 22. Plaintiffs never sued to inherit. They sued under state-law statutes which create

a cause of action in tort, for survivors to sue for the

wrongful death of their closest relatives. The right of

action exists only in favor of a strictly defined list of

beneficiaries. La. Civ. Code art. 2315.1(A), 2315.2(A).

Petitioners’ rights to inherit are untouched by any law

Article 1256 is particularly relevant to Petitioners’ intrafamily adoption.

or statute, including the two code articles at issue, as

well as La. Civ. Code art. 199 and Ch. Code art. 1256.9

The only issue is whether Petitioners have a right to

sue in tort, under a sui generis piece of state legislation, for the wrongful death, or as survivors of their

natural parents and half-siblings, in light of their

adoption years before the accident at issue. The Louisiana Supreme Court correctly applied state law, and

consistent rulings over decades, to confirm that they do

not. Opinion 2a-9a; Appx. 37a-49a.

Petitioners err to presume that the right to file a

state-law tort lawsuit is a “fundamental right.” Cf. Pet.

22-24. It is not. “The Constitution does not create a

fundamental right to pursue specific tort actions.”

Edelstein v. Wilentz, 812 F.2d 128, 131 (3rd Cir. 1987);10

The wrongful death and survival actions are sui generis,

and not part of the Louisiana law of successions. See, e.g., Haas v.

Baton Rouge Gen. Hosp., 364 So.2d 944, 945 (La. 1978).

Speaking in terms of immunity statutes, and citing to Logan v. Zimmerman Brush Co., 455 U.S. 422, 432–33, 102 S.Ct.

1148, 1155–56, 71 L.Ed.2d 265 (1982); Martinez v. California, 444

U.S. 277, 282 & n. 5, 100 S.Ct. 553, 557 & n. 5, 62 L.Ed.2d 481

(1980); and Ferri v. Ackerman, 444 U.S. 193, 198, 100 S.Ct. 402,

406, 62 L.Ed.2d 355 (1979). In Martinez, this Court wrote: “Arguably, the cause of action for wrongful death that the State has

created is a species of ‘property’ protected by the Due Process

Clause. On that hypothesis, the immunity statute could be viewed

as depriving the plaintiffs of that property interest insofar as they

seek to assert a claim against parole officials. But even if one characterizes the immunity defense as a statutory deprivation, it

would remain true that the State’s interest in fashioning its own

rules of tort law is paramount to any discernible federal interest,

except perhaps an interest in protecting the individual citizen

from state action that is wholly arbitrary or irrational.” Martinez,

444 U.S. at 281–82 (internal citations omitted).

Christensen v. Ward, 916 F.2d 1462, 1471 (10th Cir.

1990), cert. denied, 111 S.Ct. 559, 112 L.Ed.2d 565

(“The Constitution does not create a fundamental right

to pursue specific tort actions.”); Silver v. Silver, 280

U.S. 117, 122, 50 S.Ct. 57, 58, 74 L.Ed. 221 (1929) (“We

need not, therefore, elaborate the rule that the Constitution does not forbid the creation of new rights, or the

abolition of old ones recognized by the common law, to

attain a permissible legislative object.”). Louisiana law

is also clear that the right to file a tort lawsuit is not a

fundamental right.11

The “equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a

fundamental right or operates to the peculiar disadvantage of a suspect class.” Massachusetts Bd. of Ret.

v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49

L.Ed.2d 520 (1976). Thus, the first test for strict or intermediate scrutiny is missing. So is the second.

Consistent decisions of the Federal Courts of Appeals hold that adoption is not a suspect category in a

constitutional analysis, and only a rational legislative

basis for the distinction is required to withstand a constitutional challenge.12 There is no split in Circuit law.

See Crier v. Whitecloud, 496 So.2d 305, 308 (La. 1986).

See, e.g., Smart v. Ashcroft, 401 F.3d 119, 122 (2nd Cir.

2005) (“There is no suggestion here that adopted children are a

‘protected’ class entitled to invoke heightened scrutiny.”); Martinez v. Attorney General, 761 Fed.Appx. 133, 135 (3rd Cir. 2019)

(“Adoption status is not a suspect classification under the Supreme Court’s equal protection jurisprudence.”).

In Smart,13 the Second Circuit held that, if “different

treatment between biological and adopted children is

rationally related to a legitimate government interest,”

there is no equal protection violation. The Second Circuit’s holdings14 are consistent with cases decided in

the Third,15 Fifth,16 and Ninth Circuits.17 See also Doe

Smart, 401 F.3d at 122 (adopted children are not a “protected” class entitled to heightened scrutiny; no equal protection

violation of a statute requiring foreign-born adoptive children,

unlike foreign-born biological children, to reside with their parents at time of parents’ naturalization in order for children to

achieve derivative citizenship).

See also Colaianni v. Immigration and Naturalization Service, 490 F.3d 185 (2nd Cir. 2007) (no equal protection violation

in a statute extending citizenship at birth to a person born outside

the United States of parents both of whom were citizens of the

United States and one of whom had a residence in the United

States, but which did not apply to alien who was adopted by two

United States citizens after having been born in Canada).

See Cabrera v. Attorney General, 921 F.3d 401 (3rd Cir.

2019) (no equal protection violation because of differential treatment to biological children and adoptive children in the derivative

citizenship statute); and Martinez v. A.G., supra (no equal protection violation in a statute distinguishing between natural and

adopted children); Brehm v. Harris, 619 F.2d 1016 (3rd Cir. 1980).

See Puentes-Bejarano v. Keisler, 250 Fed.Appx. 25 (5th Cir.

2007) (no equal protection violation in a statute treating differently “adopted alien children who had two parents and adopted

alien children who had only one parent”); Sonnier v. Chater, 66

F.3d 320 (5th Cir. 1995) (unpub.) (no equal protection violation in

a statute depriving “surviving-child benefits” under the Social Security laws to a biological child who has “been adopted by another

individual and the natural parent, at the time of his death” and

the decedent “was not living with or contributing to the support

of the child.”).

See Chavez-Cornejo v. Holder, 327 Fed.Appx. 760 (9th Cir.

2009) (no constitutional violation in a statute authorizing United

v. Sundquist, 943 F.Supp. 886, 893-96 (M.D. Tenn.

08/23/96), aff ’d, 106 F.3d 702 (6th Cir. 1997), cert. denied, 118 S.Ct. 51, 139 L.Ed.2d 16 (state law allowing

disclosure of previously confidential adoption records

did not violate the Equal Protection Clause because it

did not touch upon any fundamental right, and women

who surrender children for adoption are not a suspect

class nor singled out to be deprived of rights, and involved a rational governmental purpose).

This being so, the proper test to apply is not the

intermediate scrutiny urged in the Petition, but rather,

the rational basis test. “[A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity”

and “cannot run afoul of the Equal Protection Clause

if there is a rational relationship between the disparity

of treatment and some legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 319–20, 113 S.Ct.

2637, 2642–43, 125 L.Ed.2d 257 (1993).

There is a rational basis for distinctions among

adopted and non-adopted children in the statutes. The

Louisiana Supreme Court acknowledged this, Opinion

10a; Appx. 53a-55a, as have consistent, long-standing

States citizen parents married to alien spouses to petition for naturalization on behalf of couple’s biological, but not adopted, children); Dent v. Sessions, 900 F.3d 1075, 1082 (9th Cir. 2018), cert.

denied, 139 S.Ct. 1472; 203 L.Ed.2d 692 (2019) (no equal protection violation when “biological parents could confer citizenship on

their children automatically, whereas adoptive parents had to petition for their children to become citizens.”).

decisions in Louisiana.18 There is nothing irrational

about the policy determination made by the legislature

in 1960 to revise the survival and wrongful death statutes to conform harmoniously with the law of adoption,

and to provide a single action for a child given in adoption to sue only in the event of the death of a parent or

sibling, “by adoption.” There is no duplicate right of action provided to sue for his former natural parents’

death, with whom he has no legal relationship, no filiation, and who no longer owes him duties of care or

support.19 Once a child is given up for adoption, “the

adopting parent becomes the parent of the child for all

purposes and the filiation between the child and his

legal parents is terminated, except as otherwise provided by law.” La. Civ. Code art. 199.20 Likewise, under

See, e.g., Walker v. Vicksburg, S. & P. Ry. Co., 34 So. 749,

750 (La. 1903); Roche v. Big Moose Oil Field Truck Serv., 381

So.2d 396, 399 (La. 1980); Miles v. Illinois Central Gulf Railroad

Co., 389 So.2d 96, 98 (La. App. 4th Cir.), writ denied, 394 So.2d

612 (La. 1980); Allen v. Burrow, 505 So.2d 880, 887 (La. App. 2nd

Cir.), writ denied, 507 So.2d 229 (La. 1987); Estate of Burch v.

Hancock Holding Co., 09-1839 (La. App. 1 Cir. 5/7/10), 39 So.3d

742, 748-49.

See Opinion 5a-7a, 10a-11a; Appx. 43a-44a, 49a, 54a-55a,

58a-59a.

Express legislative enactments provide the “exceptions” to

the total termination of rights and filiation between the adopting

child and parent “as provided by law.” They include the retention

of the right of inheritance, under article 199 and La. Ch. Code art.

1256; retention of parental status when the legal parent is married to an adopting parent, under La. Ch. Code art. 1256 and La.

R.S. 9:461; and the right of visitation with grandparents, under

La. Ch. Code art. 1264. But, this “exception” language in article

199 does not create a right of action under articles 2315.1 and

2315.2. The right of a child “given in adoption” to sue under

Ch. Code art. 1256, the natural parent is divested of

their former duties to the child, and the child is divested of rights and duties with respect to his natural

parents and blood relations.

Upon adoption, such children gain survival and

wrongful death actions on behalf of their parent and

siblings “by adoption.” La. Civ. Code art. 2315.1(A),(D),

2315.2(A),(D). Children who have never been given in

adoption have a right to sue for natural parents and

siblings. Id. Thus, each has an equal right to sue. Because wrongful death and survival actions are not heritable rights, and because adoption terminates filiation

between the child and the child’s biological parent,

there is nothing irrational or improper about the legislature excluding children given in adoption from bringing a duplicate wrongful death or survival action on

behalf of a biological parent, who deliberately, knowingly, and voluntarily, severed all filiation rights, and,

by law, “terminated” the child-parent relationship.21 As

former article 2315 for the death of a natural parent or sibling

(created in 1948, and rescinded in 1960) is clearly no longer “provided by law.” Opinion, 5a-6a, Appx. 46a-47a. Further, the survival and wrongful death actions, are sui generis and strictly

construed laws. Id.; Levy v. State Through Charity Hosp., 216

So.2d 818, 819 (La. 1968). They are the only statutes which can

create a right of action. Id. If an individual is not included in the

list of beneficiaries as provided in the legislation, he is excluded.

Gibbs v. Illinois Cent., 125 So. 445, 446 (La. 1929).

Petitioners cite to La. Ch. Code art. 1101, et seq., relevant

to Surrender of Parental Rights, wherein a parent voluntarily relinquishes his parental rights to a child for the ultimate purpose

of adoption. Pet. 20. Once the adoption is finalized, both the parent, and child, are relieved of all their legal duties and divested of

noted by Chief Justice Weimer, adoption has “weighty

consequences,” and causes a significant change in legal

status which is not entered into lightly, and not without legal effects. Appx. 43a, citing to Article 199. Such

decisions carry with them manifold obligations, benefits, and duties, Opinion 5a-6a, Appx. 56a, which Petitioners ask this Court to sweep aside. On this issue,

Chief Justice Weimer wrote:

. . . as it concerns the legislature’s justification for limiting the category of claimants

in La. C.C. arts. 2315.1 and 2315.2, ample

grounds have been recognized in the jurisprudence. As here, in the context of a constitutional challenge, the following observations

were made to the stated limitations:

It has been recognized that, of necessity, the legislature was burdened with a

need to place some reasonable limitation

on the number of potential beneficiaries

and that this limitation has obvious benefit to judicial efficiency and economy. . . .

[T]he chosen classes reasonably embrace

those individuals that are likely to be

most affected by the death of the deceased

and yet reflect a reasonably appropriate

limitation on the right of action.

all legal rights with respect to each other, and other blood relatives. Ch. Code art. 1256. The natural parental and blood relationships are terminated, and a new family unit is created. La.

Civ. Code art. 199.

Estate of Burch [supra] (citing Allen [supra]).

Relatedly, the court in Allen explained: “It has

been recognized that, of necessity, the legislature was burdened with a need to place some

reasonable limitation on the number of potential beneficiaries” for survival actions. Id., 505

So.2d at 887. Children who depend on a parent for support would be required to share a

tort recovery with children born of the marriage who, because they were given in adoption, would be potential strangers to the

family of the deceased parent.

Appx. 54a-55a (emphasis in original). Louisiana Courts

have consistently upheld the constitutionality of the

legislative classification of beneficiaries in the statute,

which allow a right to some, and disallow a right to

others, as a rational exercise of legislative power.22

Both adopted and non-adopted children enjoy an

equal right to assert an action. “The Fourteenth

Amendment ‘does not require absolute equality or precisely equal advantages’.” Ross v. Moffitt, 417 U.S. 600,

612, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974) (quoting San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 24, 93 S.Ct. 1278, 1291, 36 L.Ed.2d 16

(1973)); United States v. MacCollom, 426 U.S. 317, 324,

96 S.Ct. 2086, 2091, 48 L.Ed.2d 666 (1976). It “guarantees equal laws, not equal results.” Pers. Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282,

See Estate of Burch; Allen; Miles; Langlois v. Noble, 465

So.2d 108 (La. App. 4th Cir.), writ denied, 468 So.2d 1209 (La.

1985). See also Lewis v. Allis-Chalmers Corp., 615 F.2d 1129 (5th

Cir. 1980); King v. Schweiker, 647 F.2d 541 (5th Cir. 1981).

2293, 60 L.Ed.2d 870 (1979). Nor does it forbid classifications. Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct.

2326, 2331, 120 L.Ed.2d 1 (1992). A state “does not violate the Equal Protection Clause merely because the

classifications made by its laws are imperfect. If the

classification has some ‘reasonable basis,’ it does not

offend the Constitution simply because the classification ‘is not made with mathematical nicety or because

in practice it results in some inequality’ . . . The problems of government are practical ones and may justify,

if they do not require, rough accommodations—illogical, it may be, and unscientific. . . . A statutory discrimination will not be set aside if any state of facts

reasonably may be conceived to justify it.” Dandridge

v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25

L.Ed.2d 491 (1970) (internal quotations and citations

omitted).

That children given in adoption in Louisiana have

no right to sue for the death of their natural parents or

siblings has been well settled law since the statutory

revision in 1960, Opinion 4a-7a, and in over forty years

of consistent jurisprudence. See Simmons v. Brooks;23

Domingue; Nelson; Hernandez, supra; Stewart v. Gordon.24 Petitioners are mistaken to suggest that no one

ever questioned that adopted children had causes of

action for the wrongful death of their biological parents and siblings from 2009 to 2019. Pet. 16, 20. To the

contrary, no one ever expected since 1960 that a child

342 So.2d 236, 237 (La. App. 4th Cir. 1977).

Appx. E.

given in adoption had a right to sue for the wrongful

death of a natural parent or sibling. Opinion 4a-9a;

Appx. 41a-49a. There was no judicial decision which

parted from these uniform holdings prior to the instant

initial decree, which was properly vacated on rehearing. As noted by the Chief Justice, contrary to Petitioners’ arguments, this is a very stable area of Louisiana

law. Appx. 47a.

B. There is No Reason to Extend Cases Involving Deprivation of Rights to “Illegitimate”

Children to Statutes Dealing With Adopted

Children, Who Are Given Rights.

Petitioners base their case upon Levy v. State

through Charity Hospital,25 Glona v. American Guarantee,26 Weber v. Aetna,27 Gomez v. Perez,28 and following cases. Pet. 8-14. While those admirable decisions

are well reasoned and correct, they concern the total

deprivation of rights to “illegitimate” children, and are

not applicable to adopted children, who: (1) enjoy

rights equal to other children and citizens of Louisiana; (2) have rights equal to other non-adopted children under the statutes at issue; and (3) are provided

with a single cause of action under a rational legislative purpose of directing an adopted child’s tort action

solely toward his new family in adoption. Petitioners

391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968).

391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968).

406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).

409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973).

are not denied all rights due to their “birth,” or because

they were born out of wedlock, which they were not.29

Legitimacy or illegitimacy of a child’s birth is not the

basis of the legislative distinction at issue. Rather the

fact that a child is adopted is the only distinction. Any

case discussing denial of rights based upon “birth” or

“illegitimacy” is not relevant to the facts of this case.

Levy and Glona were decided in 1968, when judicial and legislative discrimination of illegitimate children was commonplace. Louisiana barred access to the

survival and wrongful death actions to “illegitimately”

conceived children, along with a total deprivation of a

multitude of other basic rights. This is no longer the

law in Louisiana, and the distinction at issue here is

not based on Petitioners’ “legitimacy” or “illegitimacy”

of birth. Cf. La. Civ. Code arts. 2315.1, 2315.2. As stated

in Levy, Louisiana previously denied rights to illegitimates to promote “morals and general welfare because

it discourages bringing children into the world out of

wedlock.” Levy, at 70. This Court noted that illegitimates were, in effect, treated as “non persons” by the

state and denied all rights. Id. Yet the laws imposed

duties upon them (such as taxes and conscription),

while denying “correlative rights which other citizens

enjoy.” Id. at 71-72. The Court applied intermediate

scrutiny, based upon the distinction there, which was

Petitioners admit that they were legitimately born, but

given up for adoption. Pet. 4. See also Appx. 19a; Appx. 99a; 110a,

115a, 125a. The words legitimate or illegitimate are not in the

statutes, nor was “legitimacy” the basis for any distinction in any

of the rulings, below.

“birth,” i.e. “illegitimacy,” and easily found that the

stated legislative purpose behind the denial of all

rights to illegitimate children was “invidious,” unreasonable and irrational, and thus, unconstitutional. Id.

at 72.

Children given in adoption, and here, legitimate

children, are not deprived of correlative rights with

other children or citizens in any respect, much less by

the terms of the statutes under review, which expressly

provide them with a right to sue. See La. Civ. Code art.

2315.1, 2315.2; Opinion 10a. As noted, the right to file

a tort suit is not a fundamental right, and adoptees,

such as Petitioners, are not part of a suspect class.30

The Louisiana legislature did not refine rights as to

adopted children on the basis of their legitimacy, or any

“moral” grounds such as discouraging births out of

wedlock. The redirection of rights for adopted children

to sue, away from the former parents and toward their

new parents and family by adoption, is rational, orderly, and harmonious with the law of adoption, which

terminates the old family unit, and creates a new one.

See Opinion 5a, 10a, Appx. 43a-44a, 47a, 49a, 54a, 56a57a.

In Glona, a mother sued for the death of her son,

but was denied that right because her child was born

out of wedlock. The stated legislative purpose behind

Cf. Pickett v. Brown, 462 U.S. 1, 8, 103 S.Ct. 2199, 2204,

76 L.Ed.2d 372 (1983) (“In view of the history of treating illegitimate children less favorably than legitimate ones, we have subjected statutory classifications based on illegitimacy to a

heightened level of scrutiny.”).

the denial of rights was to “deal with sin.” Id. at 75.

This Court found such a legislative basis to be irrational:

Yet we see no possible rational basis . . .

for assuming that if the natural mother is allowed recovery for the wrongful death of her

illegitimate child, the cause of illegitimacy

will be served. It would, indeed, be farfetched

to assume that women have illegitimate children so that they can be compensated in damages for their death. . . .

Glona, 391 U.S. at 75-76. Such reasoning does not apply to a classification based on the effects of an adoption, and the termination of the old, and the creation of

a new family unit. No case cited in the Petition deals

with children given in adoption, who have a new family

as the result of their adoption, and who do, in fact, have

a right of action under the statutes to sue a tortfeasor.

Petitioners are not treated as “non persons” or denied

rights other citizens enjoy. Cf. Glona, at 75; Levy, at 70.

They have a right of action under the statutes, and full

protection under the laws of adoption as well as all

other laws allowing rights to every other child in Louisiana.

Petitioners’ reliance on cases dealing with illegitimacy has also been rejected in decisions like Sonnier,

which involved the denial of social security benefits for

a surviving child if the child had been previously

adopted, and was not living with, or supported by the

wage earner. The Fifth Circuit rejected counsel’s analogy to cases involving illegitimate children: “We reject

Appellant’s equal protection argument out of hand,”31

finding the statute applied “equally regarding one who

is a natural child, whether that natural child is legitimate or illegitimate.”32 Other federal decisions are consistent with the instant ruling, holding that there is no

constitutional prohibition on distinguishing between

children who have been adopted and those who have

not when a rational basis exists.33

Weber was a workers’ compensation case arising

from a holding that “unacknowledged” illegitimate

children are not “children” under compensation law.

Weber, 406 U.S. at 168. Legitimate children had 100%

of the recovery, whereas “unacknowledged” illegitimates received nothing. Id. at 166-67. The Court applied Levy and Glona, noting a pattern in Louisiana

law to disallow rights to illegitimates, and that all children in that case were equally dependent upon the decedent for support. Id. at 172. The Court, again, found

no “rational relationship” of the restriction with the

legislature’s stated purpose: “to protect legitimate family relationships.” Id. at 173. That goal would not “shun

illicit relationships,” id., simply because an offspring

might not collect compensation benefits. Id. Here, any

duty of support akin to that in Weber is incumbent

upon Petitioners’ new parents by adoption, not by their

66 F.3d at 320.

Id.

See note 12-17, and Smart; Colaianni; Cabrera; PuentesBejarano, supra.

natural parents or natural half-siblings. La. Civ. Code

art. 199; La. Ch. Code art. 1256.

Petitioners argue that these cases should be expanded to children given in adoption because they had

no say in their adoption. Pet. 13. But, the Louisiana

law does not require a child’s consent to adoption.

Appx. 54a.34 Petitioners’ parents knowingly decided to

put their children up for adoption, a decision in the

best interests of the child, and which had “weighty consequences,” as noted by Chief Justice Weimer. Adoptions are beneficial for the child, ensuring the love,

protection and financial support of new parents. The

law, as applied, does not “discourage” adoption. While

the loss of their natural parents may be difficult, the

same difficult decision was made as to the custodians

of Vera, who had filed a suit in this case, as well as

Stewart’s parents. Appx. E. As difficult as those decisions may have been, state law simply provided no

remedy. Appx. 136a.

In Gomez, the Court struck Texas laws which disallowed the parent of illegitimate children to file a petition for support. The Court again applied Levy and

Glona, noting that the restrictive legislation did not

serve the stated legislative purpose. The Court found

that there was no “constitutionally sufficient justification” for denying essential rights to a child “simply because its natural father has not married its mother.”

Also noting that a parent’s act of surrender is final and irrevocable.

For a state to do so is “illogical and unjust.” Gomez, 409

U.S. at 538. Again, the statutes at issue do not base

their limitation on the grounds of legitimate or illegitimate birth, Petitioners are not illegitimate, and they

enjoy substantially identical rights as non-adopted

children to sue under the statutes. There is no cause to

extend Levy, Glona, Weber, Gomez, or similar authority

cited by Petitioners.

C. Intermediate Scrutiny Does Not Apply; Rational Basis is the Proper Test.

. . . San Antonio School District v. Rodriguez, 411 U.S. 1, 16, 93 S.Ct. 1278, 1287, 36

L.Ed.2d 16 (1973), reaffirmed that equal protection analysis requires strict scrutiny of a

legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the

peculiar disadvantage of a suspect class. . . .

Murgia, 427 U.S. at 312 (footnotes omitted). Intermediate scrutiny has generally been applied to discriminatory classifications based on sex or illegitimacy.

Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914,

100 L.Ed.2d 465 (1988). Laws which do not proceed

along suspect or semi-suspect lines, and do not infringe

on fundamental rights or affect a protected class need

only be “rationally related to a legitimate governmental interest.” Lyng v. Int’l Union, United Auto.,

Aerospace & Agr. Implement Workers of Am., 485 U.S.

360, 370, 108 S.Ct. 1184, 1192, 99 L.Ed.2d 380 (1988);

Murgia, supra.35 The “rational basis” standard “employs a relatively relaxed standard reflecting the

Court’s awareness that the drawing of lines that create

distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary.” Murgia,

427 U.S. at 314 (citing Dandridge, supra, 397 U.S. at

485). Such action by a legislature is presumed to be

valid. Id.36

Classification “by adoption” is not a suspect or

semi-suspect classification requiring strict or intermediate scrutiny, and federal courts have applied this

standard to claims that classifications based on adoptive status were unconstitutional. Appx. 51a-52a (citing to Cabrera, Brehm, Dent, supra). See also, King,

647 F.2d at 546 (“The claimant admits that equitably

adopted children do not constitute a suspect class. Furthermore, no fundamental right is adversely affected

by this statute.”); Martinez, supra.

Petitioners likewise have no loss of a property interest, because the state law does not provide a remedy in tort. See Crier,

496 So.2d at 308-09; Miles, 389 So.2d at 98-99.

“On rational-basis review, a classification in a statute . . .

comes to us bearing a strong presumption of validity, see Lyng

[supra], and those attacking the rationality of the legislative classification have the burden ‘to negative every conceivable basis

which might support it,’ Lehnhausen v. Lake Shore Auto Parts

Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973)

(internal quotation marks omitted).” F.C.C. v. Beach Commc’ns,

Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211

(1993).

In urging the use of intermediate scrutiny due to

their alleged discrimination by “birth,” Petitioners

equate the concept of “birth” to “legitimacy” or “illegitimacy.” Pet. 26.37 The statutes at issue do not discriminate in terms of legitimate or illegitimate children, or

even legitimate or illegitimate adopted children. See

La. Civ. Code art. 2315.1, 2315.2. Petitioners are not

“illegitimate.” Appx. 99a. Petitioners admit that

adopted children both born in, and out of wedlock, have

no right of action for the death of a natural family

member. Pet. 23. And, both previously “illegitimate”

children and “legitimate” adopted children have a right

to sue for a death in their new family, by adoption, under the statutes. Thus, Petitioners’ argument, that the

statutes discriminate against them by “birth,” is not

supported by the laws or the facts.

Petitioners also assert disparate treatment among

“the same class of beneficiaries.” Pet. 27. This is not correct. First, children given in adoption are simply not

among the beneficiaries who may assert a claim for the

death of a natural parent. This is seen by a straightforward reading of the statutes. See Opinion 2a-9a. Second, children given in adoption do have a right of

“It has more recently been stated that heightened scrutiny

would apply to any different treatment ‘turning on legitimacy,’ i.e.

birth. . . . The case at bar turns on the child’s birth status.” Pet.

26, citing to United States v. Mayea-Pulido, 946 F.3d 1055 (9th

Cir. 2020), cert. denied, 141 S.Ct. 101, 207 L.Ed.2d 179 (2020).

Mayea-Pulido turned on an immigration statute’s classification of

children based on their parent’s marital status at the time of

birth, as well as issues of custody. Even in that case the court

refused to apply a heightened level of scrutiny.

action to assert a claim for their parents and siblings

“by adoption,” which is equal to the right of nonadopted children to assert a claim for their parent or

siblings. Thus, there is no disparate treatment among

any “class” of child under the statute, because nonadopted and adopted children each have a right to file

a lawsuit. The rights at issue do not have to be identical, only equal in nature. Ross, Feeney, supra. To the

contrary, no class of beneficiaries under the statute has

two sets of rights to sue, which is the unbalanced outcome Petitioners seek. See, e.g., Appx. 48a, 58a-59a.

All of the cases cited by Petitioners in which intermediate scrutiny was employed undeniably concern

unequal treatment to illegitimate vs. legitimate children (or their parents), as a suspect or semi-suspect

class. See Levy, Glona, Weber, Gomez, supra. Petitioners’ other cited authority is similarly inapposite. Clark

concerned the six year statute of limitations for paternity actions for illegitimate children under Pennsylvania law. The Court noted that intermediate scrutiny is

typically applied to cases involving discriminatory

classifications based on sex or illegitimacy. Id. at 461.

And, the legislative goal of preventing “stale” or “fraudulent” claims was suspect, because a child had longer

than six years, in certain situations, to litigate paternity, and in some cases, no limits at all. Id. at 464. Thus,

the law was struck down. The classification at issue

here is not based upon illegitimacy, but rather, adoption.

Sessions v. Morales-Santana,38 concerned gender

discrimination, and a law which treated mothers and

fathers differently for the purposes of transmitting citizenship. Id. at 1686, 1688-89. Gender classifications

are clearly suspect, and fall under strict scrutiny. Id. at

1689.39 Petitioners here are not denied rights due to

gender. Petitioners cite to dicta in Sessions regarding

differential treatment “of marital children in comparison to nonmarital children.” Id. at 1700; Pet. 26. But,

the statutes at issue do not discriminate among marital or nonmarital children, adopted or not, and Petitioners are not “nonmarital” children.

Trimble v. Gordon,40 involved an Illinois law which

allowed illegitimate children to inherit by intestate

succession only from their mothers, id. at 763, and the

“total statutory disinheritance of illegitimate children

whose families die intestate.” Id. at 772. The laws at

issue here do not limit, in any way, an adopted person’s

right to inherit, as Petitioners admit. See pp. 8-9; Pet.

at 22.

Mathews v. Lucas,41 questioned the constitutionality of conditions placed on entitlement to Social Security benefits for illegitimate children. Legitimate

137 S.Ct. 1678, 198 L.Ed.2d 150 (2017).

“Laws granting or denying benefits ‘on the basis of the sex

of the qualifying parent,’ our post-1970 decisions affirm, differentiate on the basis of gender, and therefore attract heightened review under the Constitution’s equal protection guarantee.” Id. at

1689.

430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).

427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976).

children were presumed to be dependent on the deceased, whereas illegitimate children were not, and it

was conceded that the law treated illegitimate children

differently from legitimate children. Id. at 503. The

lower courts struck the statute, but this Court reversed

those decisions, finding the distinctions in the law reasonably related to the likelihood of dependency upon

the decedent. Id. at 509, 511, 516. The Court easily distinguished the type of discrimination in Gomez and

Weber, as total deprivation of rights, id. at 511, but

an illegitimate child under the scheme at issue in

Mathews could prove dependency, and thus receive

benefits. Id. at 513.

Warren v. Richard,42 concerned a wrongful death

action by an illegitimate daughter for the death of her

natural father. As a child of the decedent, her claims

preempted claims filed by the decedent’s mother and

brother, whose claims were dismissed. The mother and

brother appealed, arguing that the child’s claim should

be dismissed because she was born to the decedent out

of wedlock. The Louisiana Supreme Court properly rejected that argument, building on Levy and Glona,

again in a case involving historical discriminatory

treatment based on illegitimacy.

Petitioners misunderstand the holding of that case

in suggesting that courts have substituted “a biological

classification for the legal classification Louisiana has

long since observed.” Pet. 14-15, citing to Warren, at 816.

That may be true for the legal classification of children

296 So.2d 813 (La. 1974).

as “illegitimates,” which was used to deny all rights,

but has never been applied in any case to children who

are adopted, and who enjoy rights. Indeed, the “legal

classification” to which the Weber Court was speaking

is aptly demonstrated in the paragraph preceding the

passage cited by Petitioners. In that paragraph, the

Weber Court described the code articles classifying

children as “either legitimate, illegitimate or legitimated.” Id. at 816. Further to this, Louisiana further

sub-classified illegitimate children according to those

whose parents had an impending marriage, as opposed

to a distasteful classification of “adulterous bastards,”

otherwise. Id. None of these discriminatory classifications apply to legitimate, and later formally adopted

children such as Petitioners, who now have a new set

of parents, a right to sue, and who enjoy rights equal

to non-adopted children and other citizens.

Jenkins v. Mangano,43 considered whether an informally acknowledged illegitimate child had a wrongful death or survival claim which outranked that of the

parents of the tort victim. Id. at 103-05. The effect of

an adoption was never at issue. In speaking of the “biological relationship” in that case, Jenkins relied upon

Warren, Levy, and Chatelain44 (which also relied on

2000-0790 (La. 11/28/00), 774 So.2d 101.

Chatelain v. State, Dep’t of Transp. & Dev., 586 So.2d 1373

(La. 1991), also turned on denial of rights based upon illegitimacy,

and the legislative classification of a child as legitimate, legitimated or illegitimate. Id. at 1373. That case was legislatively

overruled. See La. Civ. Code art. 195 com. (a). The issues considered were the time limits and requirements for the child to prove

legitimation. Id. at 1373-79.

Warren and Levy), which all concern unequal treatment in the classification of illegitimate children,

where the “biological relationship” was the only important factor, given the classification of “legitimacy”

or “illegitimacy,” the reason for discrimination. The

rest of Petitioners’ cases urging intermediate scrutiny

are also irrelevant. Cf. Chatelain; Granger.45

None of this jurisprudence applies to a child, who

is later adopted, and who does, in fact, enjoy equal

rights. None of these cases discuss the new parental

relationship created through adoption, which makes

the “biological” factor meaningless, as carefully discussed in the decision on review. See La. Civ. Code arts.

179, 199, and La. Ch. Code art. 1256. Here, Petitioners

are now only the “children of,” and filiated to, their

adopting parents. Id. And, they have the right to sue

for their deaths. There is simply no unconstitutional

inequality.

Petitioners argue that they were not responsible

for their adoption, or the harm of being excluded from

asserting a claim, citing to Levy, Glona, Warren and

similar cases. Pet. 19-20, 23, 25, 28. But, the “harm”

that Petitioners refer to in these cases was condemnation for what the government believed was “irresponsible liaisons beyond the bonds of marriage.” Warren,

State v. Granger, 982 So.2d 779 (La. 2008) involved the

constitutionality of an expungement law as to DWI offenders who

participate in pretrial diversion programs, vis-a-vis those applicable to other offenses, and has nothing to say about adoption.

The law there was declared constitutional because the legislative

purpose was reasonable.

at 816-817; Weber, at 175. Petitioners are subject to

no such condemnation. Adopted children enjoy rights

equal to non-adopted children. Their natural parents,

for the good of the child, willingly entered into an intrafamily adoption. The adopted child has new parents

and siblings, and has a right of action to sue for their

deaths. There is no invidious discrimination visited on

them as illegitimates. There is no denial of equal rights

warranting intermediate level scrutiny.

D. There is No Cause for This Court to Review

the Louisiana Supreme Court’s Analysis of

State Legislation, and Its Rejection of Petitioners’ Faulted Methodology.

The Petition is peppered with argument that the

Louisiana Supreme Court misinterpreted code articles

with respect to their right of action. That decision involved an analysis of Louisiana state law, involved no

federal questions, no federal statutes, and no decisions

of This Court. Opinion 2a-9a. The decision causes no

constitutional impediment of equal rights. Id. at 9a12a. The decision was reached after four rounds of

briefing, during which multiple briefs were filed by the

parties and amici.46 Two en banc arguments occurred.

Petitioners’ application for rehearing, after all of

this, was denied. Appx. K. There is no cause for This

Court to intervene to review Louisiana’s highest

Petitioners’ Counsel of Record initially appeared only as

counsel for an amicus (the Zigler plaintiff mentioned in note 2 in

the Petition. Pet. 21). Four amici filed briefs in the lower proceedings, as well as the Louisiana Attorney General.

court’s interpretation of Louisiana statutes. See Opinion at 2a-11a; Martinez, 444 U.S. at 282 (“that the

State’s interest in fashioning its own rules of tort law

is paramount to any discernible federal interest, except perhaps an interest in protecting the individual

citizen from state action that is wholly arbitrary or irrational”).

The Opinion itself demonstrates the error in Petitioners’ analysis of state statutes. Opinion 2a-9a; Appx.

37a-49a. The survival and wrongful death actions are

creatures of legislation,47 and sui generis causes of action.48 The list of beneficiaries are to be strictly construed. Opinion 4a.49 Adoption is also a creature of the

Louisiana legislature. Id. The original versions of the

actions did not create a right in favor of adopted children. Opinion 4a-5a. Only in 1932 were “adopted children” granted a right of action. Id. In 1948, another

amendment created a new cause of action for a child

“given in adoption,” and the right of “blood brothers

and sisters” to sue. Id. That right was extinguished

through very specific legislative amendments in 1960,

which deleted the words “given in adoption,” and

“blood brothers and sisters,” and replaced them with

the words “by adoption,” in a definitional paragraph

The survival and wrongful death actions were first created

by the Louisiana legislature in 1855 and 1884 respectively. Prior

to these enactments, no such cause of action existed in Louisiana.

See Levy, 216 So.2d at 819, and Hubgh v. New Orleans and Carrollton Railroad Company, 6 La.Ann. 495 (La. 1851).

See Levy, 216 So.2d at 819.