Petitioners Brief — Willis v. Prudential Insurance

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4 Supreme Court, U.S.

Lim. FILED

Supreme Court of the United States

OCTOBER TERM, 1971

No. 70-5344

LORENZO WILLIS, A MINOR, BY WILLIE wad)

NEXT FRIEND, :

Petitioner,

PRUDENTIAL INSURANCE COMPANY OF AMERICA,

; Respondent, — ~

ON WRIT OF CERTIORARI TO THE SS

SUPREME COURT OF GEORGIA

BRIEF OF PETITIONER

TABLE OF CONTENTS |

Page

Ci I. A ONES oF fein 2100 an 1

aa RN alte ae ate Se gah 2

CONSTITUTIONAL AND STATUTORY PROVISIONS _s :.

INVOLVED ........--+---+e+-00:: seecceceeee 2

QUESTIONS PRESENTED .:................--- oe

ET ee ee TP ee eee 4

SUMMARY OF ARGUMENT ..........:.......0.--- 6

Comics tho toda te eae

_ IL. Congress Did Not Intend To Exclude

Classification ............ Fs WESted ov Seeed) 3 18

IV. Discrimination Against Megitimates Falls

More Heavily Upon Negroes, and Is

Unconstitutional for this Additional Reason ......... 25

Ge ae a dab xcedceccind chil sesncee <n 28

‘TABLE OF AUTHORITIES

Cases:

Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964)..... 24

Armijo v. Wesselius, 73 Wash.2d 716 .............. rae

Barker v. Metropolitan Life Ins. Co., 106 SAP ae sake 17

je § SS eee PR: ae

Bird v. United States, 187 US. 118, 124 (1902)... ... aed - «S

Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954) ...... oe UY Ue

Brantley v. Skeens, 266 F. Supp.447 .......... gcecces 17

(ti)

Brown v. Board of Education, 347 U.S. 483, 493 (1954) ... . 20,25

- Calhoun v. Latimer, 4 Race Rel. LR. 576°(1959) ......... 26

Calhoun Gold Mining Co. v. Ajax Gold Mining

Company, 182 U.S. 499, 505 (1901) ..... Se ehiaus was 10

Clearfield Trust Co. v. United States, 318 U.S. 363, _

366 (1943) 2... ccc mccccccccccccccaseccccesccese 10

Colgate v. Harvey, 296 U.S. 404, 423 (1935)... : ee 19

Connolly v. Union Sewer Pipe Co., 184 U.S. 540,

NT C2550 356660.5600 kaseeehidotens Phin a 19

Cooper v. Melvin, 223 Ga. 239 ............ Bis ele 5,8,9

DeSylva v. Ballentine, 351 U.S.570 ............ 6,9, 10, 11, 19

Dobyns v. Prudential Ins. Co. v. America, 227 Ga. 253 ...... 5,8

Foster v. Cheek, 212 Ga. 821 ........... ‘hE AREA 8,9

Fujii v. State, 38 Cal.2d 718 | .........--. a rae 20

Gaston County v. United States, 395 US. 285 (1969) ....... 26

Glona v. American Guaranty & Liability Insurance Co., |

ie es I cs fo Sac topceac eee es tb es heat...

Griggs v. Duke Power Co., 401 U.S. 424(1971) ........... 27

_ Grove v. Metropolitan Life Ins. Co., 271 F.2d 918 «......0:. 17

Haggar Company v. Helvering, 308 U.S. 389, 394 (1940) ..... 13

Haley v. Metropolitan Life Ins. Co.,434.S.W.2d7 ........ : 15

° Harper v. Board of Virginia Elections, 383 U.S. 663,

WROQEED cic Soccctccscesccteceovccesessee 20, 27

Herbert v. Petroleum. Pipe Inspectors, Inc., 396 F.2d 237 ..... 15

Hunt v. Arnold, 172 F. Supp. 847.............0000 005 26

Kimble v. United States, 345 F.2d 951,953 ........ ere 15

Knowlton v. Moore, 178 U.S. 41,77 (1900) .....-..-+--. 13

Korematsu v. United States, 323 U.S. 214, 216 (1944) ..... 20

Labine v. Vincent, 401 U.S. 532 (1971) ........-....-- <0, 22

LaBove v. Metropolitan Life Ins. Co., 264 F.2d 233. ...... 17, 22

Levy v. Louisiana, 391 U.S. 68, 70 (1968) tt sary? Pr: 13, 15,22.

ee TS he pb ay rt ey 20, 25, 27

(ii)

' McGowan v. Maryland, 366 U.S. 420, 425-6 (1961) ......... 19

McLaughlin v. Florida, 379 U.S. 184, 191-2 (1964) ........ 20, 27

Manning v. Prudential Ins. Co. of America, ,

330 F. Supp. 1198 (D.C. Md. 1971) ............. 7 AS WRUNG,

Metropolitan Life Ins. Co. v. Buckley, et al., 6

SIO Pega. B08 os oii 200 « vin tela 44s + sin ¥ oRve ee

‘Metropolitan Life Ins. Co. v. Fletcher, N-D. Ala. |

Sr CE | 6 kee etnckhi eet umdae now mmmerent 17

Metropolitan Life Ins. Co. v. Thompson, 368 F.2d 791... 11, 15,22

Middleton v. Luckenbach S.S. Co., 70 F.2d 326,329 ....... 16

Middleton v. Texas Power & Light Co.,

349 US. 152, 157-8 (1918) ............. GQ duj sarap

National Association For The Advancement of

Colored People v. Alabama, 357 U.S.449 ............44 22

, 577 ROR ona ig occas 24

Pennsylvania Railroad Co. v. Rychlik, 352 U.S. 480,

be one be ee ee ee 13

Prudential Insurance Company of America v. Willis, = __

* CIF Cn BOD. . acs una s.cesee hsb walt a PRY | 1,5

123 Ga. Agp. 190... . 203009 donnie ng csee saws 1,5

Reconstruction Finance Corp. v. County of eine. ;

ee ieee, Sa ee ere

. Robinson v. Louisiana, 370 U.S. 660 (1962) ............. 24

Savage v. Blanks; 117 Ga: App. 316(1) .............044. ' 414

Shapiro v. Thompson, 394 U.S. 618, 634 (1969)........ RF

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) ........ rr

State v. Russell, 68 Wash.2d 748 ................. <tc5 te

Strahan v. Strahan, 304.F. Supp. 40 ................. Hit.

"Tatum v. Tatum, 241 F.2d 401,405 ........ PPR oid Le

Towne v. Eisner, 245 U.S. 418,425 ...........2e005- oa

United States v. Carolene Products Company, 308 |

OE, WOR; SPU os oe kp oe asad tee 20, 26

. United States v. Oregon, 366 U.S. 643, 648-9 (1961) teeeeee 10

(iv)

" United States v. Phillipine National Bank, 292 F.2d

ee ree oe bab cave Riecabiscls le alas 15

United States ¥. Standard Oil Co.; 332 US. 301, 305

ake ee sd oti w AVE Did hd EP) > one's’ = « 10, 12

United States v. Zazove, 334 U.S. 602, 610 (1948) Oy peer 10

‘Walters v. St. Louis, 347 U.S. 231, 237 (1954) ........... 19.

" White v. Ross, 40 Ga. 339 (1869) ......... PL SAG e799

Wissner v. Wissner, 338 U.S. 655 (1950) ....... ety parse a 10

Woodward v. United States, 341 U.S. 112(1951) -:...... a

Re: Woodward’s Estate, 230 Cal. App.2d 113.............. 15

Statutes and Constitutional Provisions:

Constitution of the United States:

Ma. SOP Bl 5, IGA, oi 901. P. 10

ee teense epeeecevocecie 2, 18

Amendment XIV ........ NR ck 5 aden no 2, 18

Constitution of Georgia:

vee WE Bae 8 Bee BCIBITD wn oo ow wccccces Videos 21

Art. VIIL, Sec. I, Par. 1 (1945) .........---200. bo EF

Statutes - Federal:

SUSLA. BMS 22000 cccreccnccsssssecccvesores ae

EE TR as, cinns due d 5. odie > ves ere 2

. 38 US.C.A.770........ art a oxo « . .2,3,4, 12, 18

GCMACUNS Bios opees so. ee peep ‘on

55 Stat. 846-........ LL covieple Seep seas 15

Statutes -. State: ,

Ge. Code 1826-2019, 26-2020 ..............0 50 sees “44

Hee eee) CATEE ks 6M NE Mpa GAAP aAS DE 24

Ga. Code 74-202, 74-9902 ........-.--.- a.

Ga, Code $113-903(3) ... 2.2.22... fos fut sipecnapganitig 14

ey eee TG ee Oe or 23

Ga. Laws 1866 .......... Bee Os us « Vaid Ble >

Miscellanequs: ; : °

38 ALR 34 613... 5c. Keen cas sh cosine 15

Blackstone’s Commentaries Book I, p- 4589. 6.2.25. ‘,,,. 13,14

Brewer, “Some Effects of the Plantation System

Upon the Ante-Bellum South,” 11 Ga. Hist. Quarterly

5D; MOGI sn s sisnatanbawisestenben ees 26

Cook, The Logical and Legal Basis of Conflict of Laws, =.

LP OND). oie ais hn seas spp hnines el age 14,

Davis, Iiegitimacy and the Social’‘Structure, 45 Am. J. /

Sociology 215, 219.(1939)....\..2..0..-200- oeeyse ph ae

Equal Protection and the Applicability of Levy v.

Louisiana to Succession Law, 44 Tul. L.R. wey

G43 (ISTO) no ee Fa Cet eee Ie

_ Gray and Rudovsky, “The Court Acknowledges The

Illegitimate: Levy v. Louisiana and Glona v. American

Guarantee & Liability ee ee 118 U. Pa.

Lae. 8, SIG es sno oo dee eh eho

Iilegitimacy: Definition of Children Under Federal

Welfare Legislation, 67 Cl. LR. 984 ONE. wide eans oe

‘ “Inheritance Rights of Illegitimate Children Under _ |

The Equal Protection Clause,” 54 Mich. LR. 1336,

IPO oe Ae een ries

Krause, “Equal Protection For The Illegitimate,” hos he se

65 Mich. L.R. 477, 482 (1967) ............. 17-18, 22, 23, 25

McCormick on Evidence, 705,§329 ..............--04-

The Rights of Ilegitimates Under Federal Statutes,

PO TEV: LR. 550, SOO UIPOED «8 6 to cbet rds vs tiiuceted

U.S. Code Cong. & Adm. News 3232 89th Cong., :

First Session (1965). ........... sipsstenwl eee

ae Court of th the United States

OCTOBER TERM, 1971 r

- No. 70-5344

LORENZO WILLIS, A MINOR, BY WILLIE WILBON,

NEXT FRIEND, s

Le Petitioner,

« , Vv.

PRUDENTIAL INSURANCE COMPANY OF AMERICA,

ett: O° Respondent. ai

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA _

BRIEF OF PETITIONER.

‘OPINIONS BELOW

The opinion of the Supreme Court of Gboisis whose

_ decision is under review here is reported as Prudential

Insurance Company of America v. Willis, 227 Ga. 619, 182 .

S.E.2d 420, decided May 20, 1971 (A. 113). This decision

_Teversed the decision of the Court of Appeals of Georgia in

the same case reported as Prudential Insurance’ Company of

America v. Willis, 123 Ga. App. :150, 179 S.E.2d 688,

decided November 30, 1970 (A. 95). The opinion and judg-

ment of Elbert Superior Court, the trial court below, is

unreported (A. 90).

JURISDICTION

The opinion and judgment of the Supreme Court of

Georgia, the highest court in the state in which a decision

could be had, was rendered May 20, 1971. The» petition

for certiorari was filed June 10, 1971, and certiorari was

granted November 9, 1971. Jurisdiction is invoked under

‘ 28 US.C.A. 1257(3), petitioner having specially set up and

claimed ‘certain titles, rights and privileges under the Con-

stitution and laws of the United States, to wit, 79 Stat. _

883, 38 U.S.C.A. 770, and the due process clause of the

Fifth Amendment and the due process and equal protection

clauses of the Fourteenth Amendment to the Constitution

of the United States. : ined

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

(1) Constitution of the United States, Amendment V:

' « ° [N]or shall any person . . . be deprived of life,

liberty or property, without due process of law.”

(2) Constitution of the United States, Amendment XIV, .

Section 1: | . if

“. . [NJor 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.””” |

_ (3) Seryicemen’s Life Insurance Act of 1965, 79 Stat.”

883, 38 U.S.C.A. 77M a): ‘ Pie ,

_ (a), Any, amount of insurance under this subchapter

jin force on.any member or former member on the —

* "date of his death shall be paid, upon the establish- ~

ment of a valid claim therefor, to the person or per- :

5 mie :

a :

sons suryiving at the date of his death, i in the follow: She

ing order or precedence: ' e,

“First, to the beneficiary or bcuttdlaeles as the. mem-

dl or former member may have designated by a.

received in\the uniformed services prior to

asi ‘death;

“Second, if there be n such’ beneficiary, to the a a

or widower of such member or former member; |

“Third, if none of the above, to the child or children .

of such membef or former member and descendants. -

Of deceased children by representation; — :

“Fourth, if none of the above, to the parents of rich

member or forget member or the ‘survivor of them;

“Fifth, if ngile c of the above, to the duly appointed

” -execut r administrator of the estate of such mem-

ber o member;

“Sixth, if none of the above, to ot! t next tof kin of. va

_. such member or former member under the. -

’ laws of domicile of such member or former member

at the time of his death.” | “of rts

Questions PRESENTED >

(1) : ‘Whether the Supreme Court of Georsia: was. correct

in construing the beneficiary clause of the Serviceman’ s Life

Insurance Act, 79 Stat. 883, 38 U.S.C.A. 77a) (Third),

declaring that the policy proceeds thereunder shall in cer;

tain. instances be paid to the “child or children of ‘such

(serviceman)... ,” as excluding acknowledged spieuienart

children of a deceased serviceman. ,

(2). Whether the Supreme Court of. Georgia rab beietbi

in holding that the meaning of the words “child or children” °

as used in’ the beneficiary clause of said statute should be.

construed according to the laws of Georgia rather than

accotding to federal principles ae

Ls | lott OF Comapees in, che: Saactntit, OF se

; 4 } eee. . cra

(3) Whether the bensendeniiian placed upon said statute

by the Supreme Court of Georgia denies to petitioner, a

Negro, the equal protection and due process of law gdaran-

teed by the Fourteenth Amendment, and the due process

of law guaranteed by the Fifth Amendment, in that the

classification thus made between: legitimate and illegitimate

childrefi (a) Is without any reasonable basis in fact to the

purpose of Congress in providing a substitute source of

income for the persons legally dependent upon a deceased

serviceman, and (b) Unconstitutionally discriminates against

petitioner's class, with respect to whom the incidence of

illegitimacy is much higher than the national average due

to a history of slavery and discrimination.

STATEMENT

Relying upon Georgia law governing intestate succession,

the Supreme Court of Georgia has held in this case that

when Congress provided in the beneficiary clause of the

Serviceman’s Life Insurance Act, 79 Stat. 883, 38 U.S.C.A.

77a), that the insurance benefits thereunder provided

would be paid to the “child or children of such member . .

i cnet faotanesd Tied Comtesce LEG tp Ment tho

benefits to legitimate children of the deceased serviceman,

and to exclude his illegitimate children...

Lorenzo Willis; petitioner herein, isthe these-feivold

illegitimate Negro son of a 15-year-old mother (A. 43) and

a 20-year-old deceased serviceman (A. 64) who was killed

in Viet Nam on September 19, 1968 (A. 4, 12). This action

was brought on behalf of the minor petitioner in the name

of his maternal grandmother, to recover the $10,000 pro-

ceeds of an insurance policy issued upon the life of the

deceased pursuant to the Serviceman’s Life Insurance Act

of 1965, 79 Stat. 883, 38 U.S.CA. 770(a). —-~ .

Wills Wink adel, Seti cescvehaiagia petits tn ie

son (A. 57, 58, 60, 65), and he has been so recognized by °

the Social Security Administgation and the Veterans Admin-

5 od

istration (A. 59). Following the death of deceased in action,

his father offered to assist in securing benefits for the child.

and papers were turned over to him for that purpose,

instead of securing the benefits for his grandson, the

_ father obtained them for himself (A. 66, 82-3). ec

decguatel F atend See es Rea 4

statute, it was to be construed according to federal principles,

and declared: “We do not believe that Congress intended an -

May 20, 1971, reversed the decision of

(A. 113), without disoussion, relying

in Dobyns v. Prudential Ins. Oo. ». a, 25;

179 S,B.24 915, decided January 29, 1 73 Ge

239, 154.S.B.2d 373 (1967), construing similar language

the Fedetal Employees Group Life insurance Act (now 5

U.S.C.A. 8705 et seq:). In the Cooper case, th

Court of Georgia ignored entirely the fact that it was inter-

preting a federal statute, and resolved the question accord-

ing to Georgia inheritance and property law concepts.

Justice Felton, with Justice Hawes, dissented, declaring

that under decisions of this Court, the question was con-

trolled by federel law, and that Congress did not intend to

exclude illegitimate children from taking on an equal basis

with legitimate children.

This Court granted certiorari and leave to proceed in

forma pauperis on November 9, 1971.

SUMMARY OF ARGUMENT

(1) The Supreme Court of Georgia erred in construing

the words “child or children” in the beneficiary clause of

the Serviceman’s Life Insurance Act, 38 U.S.C.A. 770(a)

(Third), according to Georgia laws governing such terms

when used in the intestacy statute, wills and state wrongful

death statute.- Instead, that court should have recognized

that this being a federal statute rather than an ordinary

policy of insurance, a federal principle should be articulated

to govern interpretation. The relationship between a service-

man and the United States-has been characterized by this

Court as being “distinctively federal in character,” and in

. all cases dealing with the rights of servicemen, this Court

resolved the questions according to federal principles, disre-

garding state law entirely. The decision in DeSylva v. Ballen-

tine, 351 U.S. $70 (1956), holding that Congress intended

to ‘refér to state law in the Copyright Act, is not applicable

heré. In that case, the Court did not hold that Congress

intended to refer to state law under ali federal statutes, but

the one there in issue. The Copyright Act was

the entire Congressional purpose is concerned wit

happens upon death. To refer to state law in such a =.

(2) Property construed, the words “child orchildren” in|

the statute in question should be construed as iz

obvious purpose of the statute was to

source of income for those persons likely

the deceased, and construing ‘he

‘pose requires that illegitimates be

Under Georgia law, a father is required to support his. , |

illegitimate children. The rule that illegitinmate children

could not inherit arose at a time when the law was

expressly recognizes and enforces the obligation of the

father to support his illegitimate children. Neither can the

discrimination be upheld as a means of discouraging prom-

‘iscuity, as this penalizes a helpless child for the conduct of

his parents over which he has no control, and this objective —

can be better achieved by less sweeping means which do

not impinge upon the rights of innocent persons.

(4) The exclusion of illegitimates also violates due process,

and équal protection because it effectuates an additional dis-

crimination against Negroes. The rate of illegitimacy among ~

the non-white population is much greater than among the

white, being in excess of 8 to 1 in Georgia, and this differ-

ence is traceable to the continuing effects of the institution

of Negro slavery and state-enforced discrimination.

”

ARGUMENT

1. THE SUPREME COURT OF .GEORGIA ERRED IN

CONSTRUING THE SERVICEMAN’S LIFE INSURANCE

ACT ACCORDING TO STATE LAW RULES.

The per curiam opinion rendered by the Supreme Court

of Georgia declares merely that the case is controlled by

Dobyns v. Prudential Ins. Co., 227 Ga. 253, 179 S.E.2d

915, Cooper v. Melvin, 223 Ga. 239, 154 S.E.2d 373, and

Foster v. Cheek, 212 Ga. 821, 96 S.E.2d 545. The Dobyns

. ase involved the same statute in question here, and in that

case, the Court’s opinion did not enter into any discussion

of the problem, but relied merely upon the Cooper case, +.

; Tee ae

Undes the fall bench decision 6f thle Gul in }

"Caegere Melvin, 223 Ga. 239 (154 S.E.2d 373),

construing the identical language of the Federal

Employees’ Group Life Insurance Act of 1954 (50

U.S.C.A. $3085) the language in 38 U.S.C.A. $770

providing for the payment of Servicemen’s Group

Life Insurance benefits in the event the serviceman

“ fails to designate a beneficiary must be construed

as not including an illegitimate, though acknowledged,

2 the term ‘children’ used in the policy,” citing Foster y.

4 Cheek, supra, The Court then referred'to the fact that only

legitimate children had been held to be included in the term,,.

“children” when used in deeds, wills, inheritance, and wror

ful death statutes and the like, and concluded; “In. view of

the statutes and decisions of this court defining the word .

‘children,’ and the policy of our law as to inheritance by

illegitimate children, we must hold that the word ‘children

in the insurance policy of the putative father of the illegiti-

mate children did not entitle them to share in the proceeds

__ of the policy, and it was error to direct a verdict finding —

them entitled to a share of the proceeds; and to order the ,

disbursement of one-half of the proceeds of the policy to

them.” Cooper v. Melvin, 223 Ga. at 242. |

In Foster v. Cheek, supra, also involving the Federal -

Employees’ Life Insurance Act, the question was whether |

an adopted child would be included within the statutory

language. In resolving the question, the Georgia Court recog-

nized that it was construing a federal statute, and declared,

“There being no federal law of domestic relations, which is’

primarily a matter of State concern (DeSylva ». Ballentine, ,

351 U.S. 570, 76 Sup..Ct. 974, 100 L.Ed. 1415), we must |

look to the law of this State in order to determine whether

or not the defendant in error in the instant case occupies

the position of a “child” under the provisions Of the ‘act

above referréd to and the policy of iasurahce involved.” »

212 Ga, at 827. Turning to Georgia law governing adopted

children, the Court held that an adopted child would be

entitled to take under the language of the act and policy _

in question. , a of

It is therefore not subject to dispute that the Supreme —

Court of Georgia in this case interpreted the language of

the federal statute according to state law rules rather than

_ undertaking to discover a federal rule to govern the question.

In so doing, the Supreme Court of Georgia disregarded

entirely the fact that this being a federal statute, it should *

be interpreted according to federal principles and not state

law. Calhoun Gold Mining Co. v. Ajax Gold Mining Com-

pany, 182 U.S. 499, 505 (1901); Clearfield Trust Co. v.

United States, 318 U.S. 363, 366 (1943); Constitution of

the United States, Art. VI; Cl. 2. Also disregarded was the

_ fecognition that ‘Perhaps no relation between the Govern-

ment and a citizen is more distinctively federal in charac- _

ter than that between it and members of its armed forces,”

and one-to be “governed by federal authority.” United

States v. Standard Oil Co., 332 U.S. 301, 305 (1947). In

several cases, this Court has resolved questions concerning

servicemen according to federal principles in a manner

directly contrary to what would have been required under —

state law. See. Wissner v. Wissner, 338-U.S. 655 (1950),

holding that insurance proceeds under the National Service

Life Insurance Act of 1940 would devolve according to fed-

eral law rather than the Calif Community property

law; Woodward v, United States, B41. U.S. 112 (1951),

holding that an adopted brother was included within the

words “brother” as used in the same act, without any ref-

erence to state law’being made; United States v. Zazove,

334 U.S, 602, 610 (1948), holding that the statutory pro-

visions governing the NSLI Act of 1940, “are to be con-

strued liberally to eff tlie beneficial purposes that

Congress had in mind”; United States v. Oregon, 366 U.S..

643, 648-9 (1961), holding that the estate of a veteran

- dying in a V.A. Hospital would devolve according to fed-

eral law rather than the state law of domicile.

The Supréme Court of Georgia also cited DeSyiva v.

Ballentine, 351 US. 570 (1956) for the proposition that

with respect "to ‘questions Telationships, ‘Con-

gress usually refers to state Jaw: concepts, there bein:

federal law of domestic relations. 351 US, at 580,,.with jj.

Mr, Justice Douglas and. Mr. ale gs

result but dissenting on the question of reference;to

law.. However, DeSsion howe moscnid teem

mint ec Se

the statute in question. The DeSylva_case involy |

to renewal rights under the Copyright Act, and as !

Court noted, “This is teally » question of the bs

property ...”, 351 U.S. at 582, soi dors om Nek ne ey

1 i

e a

sobs Wilh Sate law althoet afleeing tone +

purpose. In the present Act, however, the

sional purpose is conceriied with what happens upon death, |

and unless one uniform rule is applied, bana ina

' gress would be frustrated.

-s The Court of Apponis for the Thies Cleese kai Mane

| DeSylva doew not apply in a case like the present.on the

reasoning that “For. however appropriate it may be to fol.

low state laws of inheritance where the problem is.essen-

tially one of passing accumulated wealth to succeeding gen-

erations, we think it reasonable to: infer here that Coed

intended the distribution of proceeds of term-insurance td.

. provide a substitute source of income for that lost by the

insured’s death. Therefore, the DeSylva ¢ case which involved

a different act with different purposes does not control the

resolution of the present problem of statutory construc _

tion.” Metropolitan Life Ins. Co, v. Thompson, 368 F.2d |

79% (C.A. ad 1966), cert. den., 388 U.S. 914. PGs

‘In addition, where Congress intended to refit W efsedeiond

oLaaeacnaneche mare it expressly so declared, for

12.

: tn dnattbindosh Af then een sittin Congress included the

following as a final catchall: |

“Sixth, if none of the above, SP beties thie of Kin ot

“such member or former member entitled under the

“laws of domicile of such member or former mem-

ber at the time of his death”.

‘There is no such express referenice in the third sitiataits

which is involved here. Hence, ushs9ed unius est exclusio

~ alterius. .

Moreover, i. a gubject which this Court ‘has characterized

as “distinctively federal”, United States v. Standard Oil Com-

pany, supra, reference to state law would produce a con-

traciety Afiemeult ta 90 $ren: where national woliormity,

desirable. :

The pressing need for uniformity in matters affecting .

servicemen is by itself a sufficient reason for requiring the

application ofa federal rule, rather than referring the mat-

ter to state law concepts, for generally, Congress intends

that its laws shall operate uniformily throughout the nation |

so that~the federal program will remain unimpaired. . Recon-

struction Finance Corp. v. County of Beaver, 328 'U 5. 204,

209 (1946)...

Therefore, it is submitted that the eee Court of

Géorgia erred in resolving the question according to Geor-

gia laws governing intestacy, wi wills, wrongful death and the -

like.

{L CONGRESS. DID NOT INTEND TO EXCLUDE

ILLEGITIMATE CHILDREN OF A DECEASED

SERVICEMAN FROM BENEFITS UNDER THE |

SERVICEMAN’S LIFE INSURANCE ACT. ,

To begin with, the words of the statute, 38 U.S.C.A.,

77a) (Third), are unequivocal. They are “child or child.

ren or such member...” The statute does not say “legit-

imate children’’, A child is a child whether he is legitimate

or illegitimate... “We start with the premise that illegitimate

children are not ‘non persons.”” ’ They are humans, live and —

e d +

im :

have their being.” Levy.» douistana, 3933.8: 68,-10.

(1968). . iS tut 2S .“wel aoiegmou2 of sapaipod

Sesiaties such construction does not comport: witli?!)

XN ute sheuidsbe-eead “notin a mow. inte

the policies [it] was intended to:serve.” Pe 7) ie

road Co. vy, Rychlik, 352 O'S. 480, .488:, '

_ Conary». Hebrring, 308 45.908) 296 APs Fen

is.a presumption against, a construction which,

der sate ineffective or inuflicienty or which woud

cause grave public injury. or-even inconvenience,” Bird v:

United States, 187 U.S: 118; 124, (1902). ‘“Weate there-—

fore bound. to. give heed. to the rule that, where a p cue

: lar construction of a statute will occasion great: incon ne

avoided JC taothgs end apne teesneanie iNreaR ;

present in the. statute.” » Kngwiton v. Hore, UR. DS,.44,.,..

77 (1900). 924 Prag h.

Itimoald be 0 sdlveplon of tena tateaan esis.

an intent to write into) this humane legislation the cruel, |

antiquated, 16th Century notions of morality, .

by Blackstone,' ‘which , treat 9

society. 265) 60). sabre

" ‘The rule disfavoring illeoitionats pri an arose, centuries...

ago in part from a desire to, preserve. stability in land; titles.

Strahan v. Strahan, 304 F.Supp. 40 (DC. La.,1969),.and...

Vike bi iy hPa |

1 ceocned eastcte ote rhs md incgcin wich sperio

bastard. The nights 2 fi such as he can pee

far he cab iakestt nothing toad Voked in an the Gon! Of uobiody

and sometimes called filius nullius (the son of noone); sometiitiés —

filius populi-(the'son ‘of the people). oo nee:

| be ws tery qualified fom boing any dignity i the chy .

Blackstone's Commentaries Book J..9: 45%9i:; itecpe of votisha

4. ne a

see note; “Equal Protection and the Applicability of Levy

Ve haapenre:to:Buccegsion Law’ ’, 44 Tul. LR. 640, 643° |

(1970).

Sov te, salentahate a8 Tan Semtecianti tse tideeades Net:

Congress legislated at a different time and under different

pees 9 aerate raat rat in ree?

- by Mr, Justice Holmes, .

wh "4 word is not'a crystal, transparent and unchanged;

“- it/is“the skin of a living thought and may vary -

"greatly'in color and content according to the cir-

“cumstances and the time in “which it is used.”

‘Towne v. Eisner, 245 U.S. 418, 425 (1918). ~

Adil ig RE GP iia spith Setities 00 ie tie eicied |

almost 30 years ago, “The tendency to: assume that a word

which appéars in two or more legal rules, and so in connec-

_ tion with more than one purpose, has and should have pre-

cisely the ‘same scope in all of them runs all through legal

discussions. It. has all the tenacity of original sin and must

constantly ‘be guarded against.” Cook, The Logical and

_ Legal Basis" of Conflict‘of Laws, 159 (1942).

The proposition urged here proves itself even indés Got.”

- gia law, for although the word “children” in the intestacy

statute, Ga. Code $113-903(3), had been held to mean legit-

imate children only, ‘Savage. v. Blanks, 117 Ga. App. 316 -

(1);°460°S.E.2d “461 (1968), would it be contended that

‘the word Bears the same meaning when used in the child

_ molestation statute, Ga. Code $ 26-2019, or the “enticing”

rs statute, Ga. Code $26-2020?- Such an‘interpretation Would

, : en not only | nullius filius, as -

referred. to:in:Blackstone’s ( :

9, oan ps pa the: realm a wr. reese

inating,. s us. Code Co ome adh Hews 3232, "89th

Comat Seas.;.(1965),. Congress. obviously. ‘intended ~

toprovide a-substitute:source of income for the

vcidivibeteancarabsuunbeibetiaa “Under Georgia law, |

—— ee

supra, at pp. 458-

‘ ’ £ :

‘ . i

‘ . s ;

. uel, +)

15 .. ra .

ws si ieptimate cls Ges Cae tins 82

74-9902... Sb. oth) BOA 1 nag is, 1 DEE pageants \o ;

: Construing similar language inthe National Seivice ive’

Insurance Act of 1940, 55)Btal) 644; Mieitionstuatingpsals

Co sist nf

eeet * Bi

bid ay od an # re

ey: ake

0, ts *

te” seh! chile

ee a 297 F.2d 743,

| (CADE. 1961). Soper seats SA SHMIST ad

A ike esl’ Bee din other’ ns cof |

sicike’ copsgurtble "Wedapean ok the Ys byees

eg Acti Asides fjrisy 4 Co.

368 F.20’791) (C.A: 3td/1966),/ cert! iden.

388 U'S. 914; Metropolitan Life Ins. sk harm Ay

278: F!°Supp.' 334 (D.C. ' Miss. Mig Kimble’: 0

States,”345 F.2d : 96!

- 68 Wash. 2d 748, AB Yad ts 5b) ;

itan Life Ins. Co.,

Armijo y., Wesselius, 73. Wash. 24.716, 440/P,24 :

- upholding wrongful death-tecovery; Re Woodward's Estate, ®

* 230 Cal’ App. 26:113;:40 Cal. Rptri.781,) 12:ALR 3rd_

|. 1434 (1964), ‘ upholding «family «allowance- award; and

_ Herbert. v. » Petroleum ' Pipe pamcoarnse ty Hed AF on

237(C.A. Sth 1968), upholding recm pander'thé Jones _

Act; 46 USCA. 688, on' the basis

reasoning urged:hiere.. See Manning v; Prudential Ins. Co.

of Arsericon, 330. Supp. 1198 (DC. Md. 1971), where the

Court declared; ot) at apewgne! etic we BN ten

‘ont Dhmqnsev0f Mellow Cab’Co. ¥./industrial Comm.

: f . t; Ct an OG ae tri ay OF he

wn ‘a eS 9 ied is 9 br, ¢ child c

: he I | Com or

wor, in_ bee ro a ir pee titho fon : -

ors Ha | oe nt ie stat Ret Ores ‘ o% inter

*: bbette 9 » POR »! A cos

; On A of the ae de why art Seis i

-- nef! Agoda 9 stare, fom nr$e i?

LG me." =f ee We. he wodarying

~~. “ee ae : bri ar ne vk te lay hav “i

2 GENS ey #01, * Sy Wievkppme:

joc Shh yO

, tn Miditon » Lucheboch $5. Gas 70 F.24 226, 3 329

+ a

y ae

bel tH ror:

* 2’. ’

Te . arches Wer.

pe 1

> ae bedowra 7 el ined Miia eek by

, father s a, usily Obligate ‘j

N.D, Ala., unreported. 4 fieowe tof ee

The LaBove case, however, is

recovery in this case would: directly conflict with a valid.

state ‘concern, which was the desire thet an adopted child:

be completely isolated from his natural father so that he

might thereby assume a normal place in his adoptive fam:

adeeiet ain bee bees

Social Security Act.” Krause, “Equal Protection For

the Illegitimate,” 65 Mich. L.R. 477, 482 (1967).

“The Rights of Ilegitimates Under Federal Statutes,” 76

_ CLASSIFICATION.

In the preceding division of the argument, petitioner has

endeavored to demonstrate that as a matter of statutory

interpretation, the words “child or children” as used in the

Act, 38 U.S.C.A. 770), should be held to include illegit-

imate children.

In division of the argument, petitioner will demon-

governing classifications ...? In the division of the argu-

_—— ; ‘

21 would seem that both the. due process clause of the Fifth

Amendment, and the due process and equal protection clauses of the

Fourteenth Amendment are involved. While the statute here is federal,

423 (1935). The classification must rest :”

ference which beats a just and

attempted classification.” Connolly v:

Co., 184 US. $40, 560 (1902). Ths: deiticstion: tint

“rest on real and feigned differences, that ‘thé ‘distinction

have some relevance to the purpose for which the clas

231, 237 (1954). In economic matters, at least, ‘*The'con-’

* ee ee ee

ceived to justify it”. McGowan ¥ Maryland, 366 US. 420

425-6 (1961). roe

The classification here; hhowever, dacs? abt teal

with a matter of economic regulation, but is qne

which tends to be “a special condition, seriously, (curtail

to. be riled taitin'eo quutect tntebbtiten, sid Whicts may ical

for a correspondingly more searching judicial inquiry.”

United States v. Carolene Products Company, 304 U.S.

144, 153 (1938). While generally there,is a presumption of

ity, and the burden of showing a classification

d-is upon the person attacking it, Middleton v. Texas

hous & Light Co., 349 US, 152, 157-8 (1918), in a case

involving a classification of the type here shown, “There

may be narrower scope for operation of the presumption

of. constitutionality . .. ,” United States v. Carolene Prod-

ucts Co., supra, at p. 152, and the burden of justifying

such a classification rests upon ms state. Loving v. Virginia,

388 U.S. 1,9 (1967). °

In this instance, a mere showing of rational relationship

is not enoughy and the classification cannot be upheld

ess shown to be necessary to promote a compelling

governmental interest.” Shapiro v. Thompson, 394 US.

618, 634 (1969), ae

The Court has applied this stricter test in such matters as

race, McLaughlin v. Florida, 379 U.S. 184, 191-2 (1964);

ancestry, Korematsu v. United States, 323 U.S. 214, 216

_ (1944); voting, Harper v. Board of Virginia Elections, 383

’ “US. 663, 670 (1966); procreation, Skinner v. Oklahoma,

316 U.S. 535, 541 (1942); education, Brown v. Board of

Education, 347 U.S. 483, 493 (1954), and see Fujii v. State,

38 Cal. 2d 718, 242 P.2d 617 (1952), applying the strict test

to a classification based on alienage.

fv determining whether the classification here should be

. subjected to the more rigorous test of constitutionality, it

is immaterial whether insurance proceeds or other social

welfare type benefits are to be deemed to impinge upon

fundamental rights, for the basis of the classification itself,

i.e:, the status of one’s birth, most certainly does. Gray

end Rudovsky, “The Court Acknowledges The Illegitimate:

__ bility Insurance Company,” 118°U. Pa. L.R. 1, 5 (1969).

ie., the rit of inte tel clery wa is.

at 634. cgharint

Attn td on iy ay

compelling governmental interest in the « ntext

ot As stated by two $ or

This problem is particularly acute as

of illegitimate birth. Wve moet cacial sot sehen. aainar :

ities have no hesitancy in associating for ne Senne

advancing their mutual interests, the very of conceding

illegitimacy orokes public oppeothian Gad tende tor eeamee

bate the very thing that the hapless victim i complaining

about. ne National ee For The Advance-

met fared People y, Alabama, 357 US. 449, 459

(

og CAR AN il ce MRS al

inclusiveness, but the reasonableness of the basis of the clas-

sification itself. Krause, “Equal Protection For The Illegit-

imate”, 65 Mich. L.R. 477, 486 (1967). In Levy v. Louisiana,

391 US. 68 (1968), illegitimacy was held to be an invalid

basis of classification with to wrongful death recov-

ery for the loss of a mother, Court declaring that: ““We

- conclude that it is invidious to discriminate against them

when no action, conduct or demeanor of theirs is possibly

relevant to the harm that was done the mother” 391 U.S.

! gon /

‘In Labine v. Vincent, 401 U.S. 532 (1971), the Court _

upheld a Louisiana statute which barred the illegitimate

children from sharing equally with the legitimate children

of a father who died intestate, declaring that, “(T]he

choices reflected by the intestate succession statute are

_ choices which it is within the power of the State to’ make.”

.But merely because illegitimacy may be relevant to inte-

state succession, where a state may have a compelling state

interest in the stability of land titles, Strahan v. Strahan. ~

supra, it does not also follow that the same rule applies

with respect to serviceman’s life insurance, for here the

statute is a federal one concerned with an entirely different

purpose than intestacy.. The statutory purpose here was

“to provide a substitute source of income for that lost by

' the insured’s death” , Metropolitan Life Ins. Co.:v. Thompson,

supra, and illegitimacy is irrelevant to that purpose.

This difference in statutory purpose also disposes of the

basis relied upon in Labine to support the classification as

applied to intestate succession, i.e., as being one designed -

to “establish, protect’and strengthen family fife . - ..» Here, -

*Aii often ‘quoted exposition of the doctrine of “family unity”

supporting distinctions based on illegitimacy is found in Davis, “Ile

ae Sociology 215, 219 (1939),

sally obligated to support Wegtiate cia

$ 74-202, and is guilty of thie crime of ak

failing to do so. Code $74-9902. Lefimse ’

that Georgia law does not consider "4 om bh

pelling state interest, for if the father can‘be’ sate te

for failing to support his illicit offspring, it ‘goes Ye

saying that the unity of the family would hardly be jeop+<

adized more by permitting sich children te share i ingur *

ance proceeds after his death. ut Tonsies oes)

Nie “Ze Ye’ plabily lmened at BN ac eben

pelling state interest in discouraging promiscuity. To begin

with, centuries of experience have demonstrated that such —

laws have utterly failed to accomplish this result: “Krause, “

supra (65 Mich. L.R. at 492); Note, hee

reyes A

“The gist of the theory is that the functiod of

tion o 0 Pgs ag fans

nema rece be por

“Ga:

Pio aishiaityrinegry Mie soa ppettthcxcmnwelrs

prenpllnecmnsrrginn yi mw SSGe of Com ae in

the sealant. of kno v. Louisiana to Succession Law,”

44 Tul..L.R: 640.(1970).. One of every 16 persons is illegit-

‘ imate, Krause, supra, and the rate of illegitimacy for both

white and non-white persons in this country increased

between 1963 and 1965, Gray & Rudovsky, supra (118 U,

Pa, L.R. at 6). This same argument was rejected by the

ii? in Glona y. American Guaranty & Liability Insurance

, 391 U.S. 73, 75 (1968) where it was said: “Yet we

a, ee etn Loan . for assuming that if the

natural mother is allowed recovery for the wrongful death

of her illegitimate child, the cause of illegitimacy will be,

_iserved. It would indeed be farfetched to assume that

_ women have illegitimate children so that they can be com-

, pensated in damages for their death.””. Moreover, this objec-

tive cannot be accomplished by punishing the child for the

sins of the parents, and the state may not penalize one

because of a status over which he has-no control, Robinson

v, Louisiana, 370 U.S. 660 (1962), anymote than it can dis-

criminate against one because of the color of his skin-a _

' status over which he equally has no control. Gray &

Rudovsky, supra, 118 U. Pa. L.R. at P. 6. And, as held

by the Court in Aptheker v. Secretary of State, 378 US.

500, 508 (1964): “It is a familiar and basic principle,

recently reaffirmed in NAACP v. Alabama, 377 U.S. 288,

307, 12 L.Ed. 2d 325, 338, 84 S. Ct. 1302, that ‘a govern--

mental purpose to control or prevent activities constitution-

ally subject to state regulation: may, not be achieved by

means which sweep unnecessarily broadly and bi mca

invade t area of protected freedoms.’ ”

A compelling state interest is. ‘not served by the Classifi-

cation on the reasoning that difficult questions of proof

would be presented, and fraudulent claims encouraged.‘

This: same argument ‘was rejected by this Court in-Glona,

after which, “gil parties interested in said assets

e from intervening in the case,” Code §37-410..

— ee “

“distaste for the parents’ activity.” Note, “Inherit

"births for non-whites i ‘from 235.9. per: thousand

_. births to 263.2. per thousand. reat pcs

25 :

391 US. at 76, sish wlio lb Geniaajibaabedin® %

respect “to Ly Sule, easteicenannaee ‘ili

In most instances, the truth is that discrimination a 5

illegitimates is based ‘either on ‘any rational * "5 hath .

compelling state interest; but upon ‘pt judice—the inf

of the church arid the fact that in its fc

laws were made by men desirous of lis

their illegitimate children. - dias

498-9, or what one writer has preset

Rights of gtimate Chen Under the Equal Potion :

Clause”, 54 Mich. L.R. 1336, 1344 (1970): ° APR, Ay}

‘It is submitted that in the present context, phefidies 4

no more valid to the state’s objective: than it Wai in Brown”

v. Board of Education, o— or in. estou v. a cenaay Ae

| supra,

IV. wren AGAINST ILLEGITIMATES FALLS ~

EAVILY UPON NEGROES, “AND 1S UNCON. —

* 6 AL FOR THIS ADDITIONAL REASON.

Of the 2 1/2 million illegitimate surviving children born

_ between 1940 and 1957 in the United States, 1 1/2 million

were’ non-white, and only | million were white. (Krause, .

supra). Between 1963 and.1 , the rate for illegitimate

(118-U. ParLR. at p 6). imometialy

; Statistics placed in Gries bese inlet kt 1963, .

illegitimate

24% of all non-white births in the nation were

1,036 white, illegitimate births in. Georgia MA. 35). ‘“.

1880, only one-third of all Negro children were, ‘born’ in.

wedlock i in the United States (A. 32).

Petitioner here who is &: Negro (A.-55); submitted: in.mmpe

port of his motion for sumniary jtidgment. the affidavits of »

two: professors: -of family relations and: psychology: ‘atthe

; —— of a ro ai, ado ‘These —

sheanetaaintidetntnidetritindstiaepiamuniet

_ whites, due to economic deprivation,' discrimination, and

the residual effects of the institytion of slavery.’ Slaves _

were bred like animals, marriage. them was discour-. .

aged, and was a temp éontract,s: le to the .

whims. of their masters-(A. 29, 32). In ¢ communities,

nearly half of the Negro population is illegitimate (A.- 30). 4

This case itself reflects that both petitioner and’his mother |

were illegitimate (A. 80), and the father of deceased also .

fathered two illegitimate children (A. 75). :

While these two. affidavits were not accepted in evidence

(A. 90), they nevertheless may be judicially noticed as “‘leg-

islative” facts. McCormick on Evidence,, 705,\$329; United

' States v. Carolene Products Co., 304 US. 144, 154 (1938).

_ Almost 50 years ago, a distinguished Negro educator born’

, and reared in the same Georgia county as petitioner had

. occasion to write, concerning the plight of the Negro, that:

“Life, therefore, among the plantation slaves, except-

ing the house servant personnel, was maintained on

_ @ plane parallel to that of domestic animals. Slaves.

‘. weré bred for the*Mmarket to meet the ever increas: -

‘ing demands of the Southwestern cotton belt. It is

estimated that 80,000 slaves were sdld annually

‘from the ve states, Maryland, Virginia,

~ North’ Carolina,”"Tennessee, Delaware, Kentucky,

and Missouri. Slave women were valuable in pro-

portion as they were able to breed children who

could be sold or trained as plantation workmen.”

‘Brewer, “Some Effects of the Plantation System

dsl gt ha Fm --Bellum South,” 11 Ga. Hist. ial

~ terly 250, 268 (1927).

Here, the classifica on would fall heaviest upon ES

children, whose taged Position this Court has judi-

‘cially noticed to be the result in part of past discrimination. :

Gaston County v. United States, 395 U.S: 285 (1969), and

_ see Calhoun v. Latimer, 4 Race Rel. L.R. 576 (1959), where

judicial notice:was taken-of the fact that the Atlanta pub-

lic schools were: segregated for many years, and see also

tral on its face, it nevertheless cannot nd \

criminatory in operation because éon :

past discrimination. ° Griggs v. Duke

424 (1971). Ctauatcaties tated jaar ikel dle

tionally suspect, Bolling. v, oe, ay _ 49 :

'». Florida, 379: US. 184, 191 (1964); Loving y. Virginia,

388 US. 1, 11 (1967), and must be A agent sd

Harper ».' Virginia State Board of Elections, 383 US. um a

670 (1966). 2

The effect of such a classification here. would be to dis- —

entitle fully one-fourth of all Negro children to. benefits.. ie:

under policies of insurance written under the ‘aa

Life Insurance Act,and the Government Employees Ingur- .

ance Act—at least where no beneficiary aiatitcnbede )

name.

Itt hiaharestiog: bp: mete: that iatrieuesdiden: Gnidia tied

expressly recognized the- peculiar position of its:Negro:popu- _

lation with respect to illegitimacy, for an act of 1866. -

declared that “tevery colored. child: heretofore;:born isi

declared to be the legitimate child of his mother, and also»

of his colored father, if acknowledged by such father.”

See White v. ‘Ross, 40 Ga. 339 (1869). It is respectfully -

submitted that the due process and equal protection clause .

_ compels the same ‘recognition today, for the continuing *

effects of those conditions extant many years 89. still per-.

‘OF -

“S@.

CONCLUSION

Over 130 years ago, the Supreme Court of Georgia, in

upholding a legislative act legitimatizing two illegitimate

children, declared:

“There i is a growing tendency everywhere, and espe-

cially in this country, fo relax the ancient rigor of’

the in fespect to bastards, and to look to the

Penal e, and to the guilty parties for the pro-

hibition and prevention of forhication and adultery,

rather than visit the vengeance of the law upon the

innocent heads of the unfortyinate offspring.” Beall .

v, Beall, 8 Ga. 210, 212 (1850).

‘a a pave purely of state concern, it may. well be

within the power of the Georgia Supreme Court, as the

majogiy of that Court did here, to retrogress to the days of

Blackstone when illegitimates were considered filius nullius,

although as we have endeavored to show above, the Consti-

tution of the United States precludes such blind adherence

to the dead hand of the past in the present context. But

aside from this, it is submitted that the Georgia Supreme

Court should not be permitted to transplant its antediluvian

and misplaced notions of morality into a federal statute

- and thereby elevate them to the level of national policy.

. The judgment of the Supreme Court of Georgia should be

reversed. ex

Respectfully submitted,

FREEMAN LEVERETT

P. O. Box 896 _ Heard, Leverett & Adams

Elberton, Georgia. Attorneys for Petitioner

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