Motion — Roe v. Norton

Supreme Court of the Gnited

OCTOBER TERM, 1973

NICHOLAS NORTON

JAN 81 1974

IN THE

No. 73-6033

SHARON ROE et al.

vs.

On Appeal from the United States District Court

For the District of Connecticut

MOTION TO DISMISS OR TO AFFIRM

AND BRIEF IN SUPPORT THEREOF

ROBERT K. KILLIAN

Attorney General

JAMES M. HIGGINS

Assistant Attorney General

76 Meadow Street

East Hartford, Connecticut 06108

Counsel for Appellee

On the Brief:

LorRNA M. Dwyer

MICHAEL ANTHONY ARCARI

Assistant Attorneys General

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1973

No. 73-6033

SHARON ROE e7 al.

Vs.

NICHOLAS NORTON

On Appeal from the United States District Court

For the District of Connecticut

MOTION TO DISMISS OR AFFIRM

Appellee moves the Court to dismiss the appeal herein

on the ground that no substantial Federal Question is pre-

sented by the Appeal. or to affirm the judgment sought to

be reviewed on the appeal on the ground that it is manifest

that the questions on which the decision of this cause de-

pends are so insubstantial as not to need further argument.

Respectfully submitted,

James M. HIGGINS

Assistant Atterney General

‘Counsel for Appellee

INDEX

Page

I. CONNECTICUT GENERAL STATUTES SECTION 52-440(b)

(1971) CREATED A LEGITIMATE AND PERMISSIBLE

METHOD OF COMMENCING TO ESTABLISH THE PATER-

NITY OF AN ILLEGITIMATE CHILD IN SUCH CASES

WHEREIN THE MOTHER REFUSED TO DISCLOSE THE

NAME OF THE PUTATIVE FATHER...............00-0sceeeeeee 7

Il. CONNECTICUT GENERAL STATUTES SECTION 52-440(B)

ALONE AND AS PART OF A COMPREHENSIVE LEGISLA-

TIVE SCHEME IS RATIONALLY RELATED TO A LEGITI-

MATE STATE END AND THE MEANS EMPLOYED ARE

RATIONALLY RELATED TO THE PURSUIT OF THAT

Il. THe APPELLANT'S CONSTITUTIONAL CLAIMS

(A) EQUAL PROTECTION IS NOT VIOLATED BY THIS

REE dca dia oipieaktcdasoeteniesanivksea chaetaakons 9

(B) DUE PROCESS IS NOT VIOLATED BY THIS STATUTE 12

(C) CONSTITUTIONAL RIGHT TO PRIVACY IS NOT VIO-

CATHY THUG STATUTE aio viskedevexsscasncicnssnscansenes 13

IV. NO SUBSTANTIAL FEDERAL QUESTION IS PRESENTED BY

LE. SR EAE PRE eR eRe Beene 20

——_—— PTET MET NERS NEE NE BNF SD

a a a a a

|

—_

TABLE OF AUTHORITIES

DECISIONS: Page

Dor v. BoLTON, 410 U.S. 179; 35 L.Ed 2d 201 (1973)

Rehear. den. 35 L.Ed. 2d 694 (1973)................... 14.19

Dor v. HARDER, 310 F. Supp. 302 (D. Conn.) Appeal

dismissed for want of jurisdiction 399 U.S. 902

1, ESE IRARRESE AR ee Na Ena NO Ry a ee DE 7

Dor ET AL Vv. Norton, (D. Conn. Civil No. 15, 579)

SRI Mal See Rca SOR ReMRe SC Ree AOA seme LE 20

Dok Vv. SHAPIRO, 302 F. Supp. 761, 762 N.3 (D. Conn.

1969), Appeal dismissed 396 U.S. 488, Rehearing

Geen FST US, FIO CU9TO) ...Rseciisesccnesecccsoccsecece 7

EISENSTADT V. BARD, 405 U.S. 438 (1972)........... saves 913,18

GOMEZ V. PEREZ, 409 U.S. 535; 35 L.Ed 2d 56 (1973) 10

GRISWOLD V, CONNECTICUT, 381 U.S. 479 (1965)....... 14

HALEY V. TROY, 338 F. Supp. 794 (D. Mass. 1972)... 18

KASTIGAR V. U.S., 406 U.S. 441 (1972).....ccccccccecccseees 12

KING V. SMITH, 392 U.S. 309 (1968)...........ccccccccecsseess 12

LOVING V. VIRGINIA, 388 U.S. 1 (1967) .o.cccccccccccceceees 13.14

MAY Vv. ANDERSON, 345 U.S. 528 (1955) ..cccccccccccccecsees 19

MEYER V. NEBRASKA, 262 U.S. 390 (1923) vooccccccccccceee. 13,17

Meyers Vv. JuRAS, 327 F. Supp. 759 (D. Ore., 1971)

Pe ae OT, GF COG ack ccs cs cccniiccisvasstcdcdsvces 19

PALKO V. CONNECTICUT, 302 U.S. 319 (1937) ...00.00000. 13

PIERCE V. SOCIETY OF SISTERS, 268 U.S. 510 (1925)..... 13.17

PRINCE V. MASSACHUSETTS, 321 U.S. 158 (1944)......... 13,15

Rok v. WaApr, 4lu U.S. 113 & 179, 35 L.Ed 2d 147

(1973) Rehear. Denied 35 L.Ed 2d 694

(8, | manana ROS Ce 88 ASE a BR 10,13.14,15,19

SHAPIRO V. THOMPSON, 394 U.S. 618 RINGS 19

SHERBERT V, VERNER. 374 SF oy EP EOIN on acuscevncceces 15

SKINNER V. OKLAHOMA, 316 U.S. 535 (1942).......0000... 13,17

6

TABLE OF AUTHORITIES (Continued)

DECISIONS: Page

STANLEY V. ILLINOIS, 405 U.S. 645 (1972) ..............00 17

WISCONSIN V. YODER, 406 U.S. 205 (1972) ............... 15,16,17

oe he Me ee Re eeneeen 12

WyMan V. JAMES, 400 U.S. 309 (1971)... eee 20

STATUTES:

Connecticut General Statutes Section 17-83E............. 4

Connecticut General Statutes Section 17-83G ............ 9

Connecticut General Statutes Section 17-295 ............. 9

Connecticut General Statutes Section 17-320............ 9

Connecticut General Statutes Section 17-324 ............. 9

Connecticut General Statutes Section 46-26 (1967) .... x

Connecticut General Statutes Section 46-26b (1967) .. &

Connecticut General Statutes Section 52-435a............ 8,10

Connecticut General Statutes Section 52-435B as

amended by Public Act 439 Section 2 (1971)... 8,19

Connecticut General Statutes Section 52-435¢ as

amended by Public Act 439 Section | (1971)... 19

Connecticut General Statutes Section 52-440B........... 3,7

42 U.S.C. Section 602(a)( 17 AG) and (ii) ....... eee 1]

ETA ~ RII i tA RD SG:

a

7"_—

1. CONNECTICUT GENERAL STATUTES SECTION

52-440B (1971) CREATES A LEGITIMATE AND

PERMISSIBLE METHOD OF COMMENCING TO

ESTABLISH THE PATERNITY OF AN ILLEGITI-

MATE CHILD IN SUCH CASES WHEREIN THE

MOTHER REFUSED TO DISCLOSE THE NAME

OF THE PUTATIVE FATHER.

The legal obligation of a man to support his child born

to an unwed mother is one of such a fundamental nature

that it remains uncontested in this appeal. The very simple,

basic problem that confronted Connecticut and the other

states in the handling of some of the cases involving this

uncontested obligation was that you cannot enforce the ob-

ligation unless the identity of the putative father is disclosed

by the mother.

The basic historical background of the statute under

scrutiny on this appeal is amply set forth in the opinion of

the court below (Appellant's Appendix A commencing at

page 10). As pointed out therein, prior attempts to handle

this problem were unsuccessful because it was held that ac-

ions influencing decisions of welfare eligibility to compel dis-

closure of the identity of the putative father, in effect, added

an additional condition of eligibility not provided for in the

Social Security Act provisions setting up the AFDC pro-

gram. Doe v. Shapiro 302 F. Supp. 761, 762 N.3 (D. Conn.

1969), Appeal dismissed 396 U.S. 488, Rehearing denied

397 U.S. 970 (1970); Doe v. Harder 310 F. Supp. 302 (D.

Conn.). Appeal dismissed for want of jurisdiction 399 U.S.

902 (1970). This statute under question herein does not deny

welfare benefits to any otherwise eligible applicant. Connec-

ticut General Statutes Section 52-440(B) is part and parcel

of the laws applying to paternity actions in Connecticut and

its provisions apply with equal force to all mothers of illegi-

timate children who refuse to disclose the names of the

fathers of their children.

In addition, as stated by the trial court, this statute pre-

sents no such direct and positive conflict with the federal

Statute as to directly impinge upon a specific provision of

the Social Security Act. (Appellant's Appendix A, p. 14)

ae

8

Il. CONNECTICUT GENERAL STATUTES SECTION

52-440(B) ALONE AND AS PART OF A COMPRE-

HENSIVE LEGISLATIVE SCHEME IS RATION-

ALLY RELATED TO A LEGITIMATE STATE END

AND THE MEANS EMPLOYED ARE RATION-

ALLY RELATED TO THE PURSUIT OF THAT

END.

The State of Connecticut has continued to show an in-

creasingly concerned awareness of the necessity to make

provisions for the protection of the rights of children.

Connecticut law provides for a three-year statute of

limitations for paternity actions to the extent that no such

paternity petition shall be brought after three years from

the birth of such child, or after three years from the cessa-

tion of contribution toward support of the child by the puta-

tive father, whichever is later. Connecticut General Statutes

Section 52-435a (1967). Further, to solve the problem of

children whose illegitimacy only becomes certain by their ex-

clusion as issue of a marriage ending in a divorce judgment,

in 1971 Connecticut legislature provided an additional pe-

riod of one year during which time the child or his repre-

sentative could institute proceedings to establish his paterni-

ty. This provided relief for the child born to a married wo-

man during coverture who was in effect declared illegitimate

during subsequent divorce proceedings, Connecticut Genera!

Statutes Section 46-26b (1971). This statute also provides for

legal representation for children in domestic litigation.

The mother and the putative father are also protected

by very broad form criminal prosecution immunity provi-

sions Connecticut General Statutes Section 52-435(a\b)

(1971).

The legitimate state purpose or end sought to be served

by this statute is that of the enforcement of the parental

obligation to support the child. This operation to enforce

parental support is 2 multi-pronged one in the State of Con-

necticut and involves the support of all children, legitimate

and illegitimate. It involves child support as it may be or-

dered in divorce litigation, Connecticut General Statutes

Section 46-26 (1967); children in humane institutions Con-

eRe ns

a

eT A te AE

a

9

necticut General Statutes Section 17-295; children who are

poor and unable to support themselves, Connecticut General

Statutes Section 17-320; court proceedings to enforce sup-

port Connecticut General Statutes Section 17-324; reim-

bursement by parents for state child support, Connecticut

General Statutes Section 17-83E (1969); claim of the State

upon death of a beneficiary or parent of beneficiary Connec-

ticut General Statutes Section 17-83G. (1969). As can be

seen from the foregoing, the state has evidenced a great in-

terest in and provided for many ways in which to enforce

the parental obligation to support children, both by pro-

ceedings to enforce current support, and to be reimbursed

for price support afforded to needy children.

The provision of the Connecticut law that is the sub-

ject of this appeal is but one of many provisions that exist

to enforce this uncontested liability to support minor chil-

dren.

Also, it ought to be pointed out that perhaps most

mothers of illegitimate children will voluntarily undertake to

protect their children’s right to support.

Il. (A) EQUAL PROTECTION IS NOT VIOLATED

BY THIS STATUTE.

The Supreme Court has, through the years established

a two-pronged test to determine whether a given law meets

the due process requirement. As the Court discussed this

test in Eisenstadt v. Baird, 405 U.S. 438, ft.nt. 7 359 (1972):

“Of course, if we were to conclude that the Mass.

statute impinges upon fundamental freedoms un-

der Griswold, the statutory classification would

have to be not merely rationally related to a valid

public purpose but necessary to the achievement

of a compelling state interest.” See also the opinion

of the Court below. (p. 25 ff. Appellant’s Exhibit

A)

As indicated above and in the opinion of the Court be-

low at p. 24 the right to privacy urged by the Plaintiffs in

this case is not “fundamental” in any sense that should re-

10

quire Constitutional protection. However, even if it could

conceivably be considered fundamental, it is submitted that

the interests represented by the state in this case —- those of

the illegitimate child to support by his father and those of the

public in promoting and protecting the relationship and

duties of parent and child as well as to reimbursement from

legally liable relatives for monies expended to support the

child are sufficiently compelling to justify state intervention

in this instance. If an unborn fetus at any time can be said

to have a right which is so compelling as to outweigh its

mother’s fundamental right to determine whether she will

or will not bear a child, Roe v. Wade, 410 U.S. 113; 35 L.

Ed. 2d 147 (1973); rehearing den. 35 L.Ed2d 694 (1973), p.

183 then it must be admitted that the right of a child which

has already been born to support from its parent can hard-

ly be considered to be less than compelling. This right be-

comes even more compelling when it is recalled that there is

a three-year statute of limitations for paternity actions in

Connecticut, Connecticut General Statutes Section 52-435a,

and beyond this point the child cannot sue his father for sup-

port if his mother has not done so for him.

As to the Plaintiffs’ argument that this law is based upon

a discriminatory classification the answer is clear. Illegiti-

mate children are not discriminated against by this statute.

Rather the state by attempting to establish their paternity is

trying to place them upon an equal footing with legitimate

children and prevent their mothers from denying them the

benefit of support by their fathers. As Judge Blumenfeld

points out on p. 27 (Appellant’s Appendix A)™. . . if the legis-

lature were to enact a law protecting the ‘right’ of unwed

mothers to exclude their children from the benefit of pa-

ternal support, it would be struck down” on the basis of

Gomez v. Perez 409 U.S. 535, 35 L.Ed.2d 56, 60 (1973)

which states:

“.. . aState may not invidiously discriminate against

illegitimate children by denying them substantial

benefits accorded children generally. We therefore

hold that once a State posits a judidically enforce-

able right on behalf of children to needed support

from their natural fathers there is no constitution-

ally sufficient justification for denying such an es-

a

sential right to a child simply because her natural

father has not married her mother.”

Furher. there is no discrimination against plaintiff

mothers as a class based upon the fact that they are unwed

mothers who are receiving welfare because the statute re-

} quires all mothers of illegitimate children to disclose the

names cf the putative fathers of these children whether or

not the nothers are receiving public assistance. Whether or

not private guardians ad litem would be less diligent in

starting proceedings under this law than the welfare com-

missioner (and nothing has been advanced to show that they

would be) can hardly be argued to bring the statute afoul of

the equal protection clause. (See Appellant’s Appendix A

pp. 31-33)

~~

Finally, the statute is rationally related to a valid pub-

lic purpose. It is obvious on the face of the statute that it is

intendec to enforce the obligations of fathers to support

their children which has long been considered one of the

: prime duties of civilized man. The State of Connecticut

holds parents primarily responsible for the support of their

offspring whether legitimate or illegitimate and with the

State’s nght to do this the Plaintiffs have indicated no dis-

. agreement. The statute at issue is simply a means of enforc-

ing this obligation on the part of fathers of illegitimate chil-

dren and, in particular, in the case of these Plaintiffs and

others lke them receiving public assistance to recover from

the fathers amounts spent out of the public coffers for the

support of their children in the past and for future recur-

ring support.

The Plaintiffs also advance an argument that the Act

does no: permit the finding or imprisonment of persons such

as the Plaintiffs in an effort to attempt to find sources of

support for those on AFDC. As has already been clearly

shown a state may not require assistance in obtaining support

) from a putative father as an eligibility requirement for re-

ceiving AFDC. This Connecticut does not attempt to do by

| its statute; rather this is an effort to comply with 42 U.S.C.

Sections 602 (a)(17)(A) (i) and (ii) by trying to establish the

paternity of illegitimate children and obtain support for them.

Under this law the children whose protection is the prime

a

12

consideration of AFDC, King v. Smith 392 U.S. 309,325

(1968), continue to receive aid. The only sanctions permis-

sible may be imposed against the mother through the ages-

old concept of contempt. There can be little doubt at this

late date that the government has the power to compel per-

sons to testify through such means, Kastigar v. U.S. 406

U.S. 441,443 (1972). (See the discussion of Judge Blumen-

feld on this point at p. 35 ff., Appellant’s Appendix A)

Thus, as was found by the Court below, there appears

little doubt that the interests advanced by Plaintiffs here

are not fundamental so as to be of the type entitled to fit

within the constitutionally protected zone of privacy. Fur-

ther, since this is so, no “compelling” state interest is required

to offset the claimed interests of Plaintiffs and the interests

advanced by the State of Connecticut — those of the Plain-

tiffs’ minor illegitimate children and of the People of the

State of Connecticut generally constitute a valid articulated

public purpose which will be rationally implemented by the

statute in question.

Ill. (B) DUE PROCESS IS NOT VIOLATED BY THIS

STATUTE

The plaintiffs base their claim that the statute violates

due process upon the fact that the law does not mandate a

hearing in each individual case as to whether revealing the

name of the father will have such adverse effects upon the

Plaintiffs and their relationships that this adverse effect will

outweigh all the quite obvious benefits which the statute

would provide. The rejection of a similar argument in Wyarr

v. United States, 362 U.S. 525,530 (1960) seems to indicate

that due process would not require a hearing or this issue in

every case concerning the statute presently at issue and at

p. 16a in footnote 14 of his opinion Judge Blumenthal so

holds in the instant case.

As Judge Blumenfeld notes at p. 16a the very use of

the word “may” by the legislature obviously leaves room for

judicial discretion in applying sanctions against the woman

who refuses to name the father of her illegitimate child. This

wording contrasts strongly with that which the Connecticut

Bios. aay 42 EASA NER RTE RAN

N

—

es

13

Legislature uses (“shall”) when no such liberty is to be left

to a judge in determining whether to apply a given penalty.

The Court in its decision below likewise makes short

shrift at p. 17 of the Plaintiffs’ argument that the statute

creates an unconstitutionally irrebutable presumption that

the mother’s naming the father of her child is in the child’s

best interest. As was stated above the simple fact that the

law is worded so that the finding of the mother in contempt

and the resultant fine or imprisonment are permitted to be

imposed rather than mandated would seem to indicate that

there is nothing’ irrebutable involved. However, as Judge

Blumenfeld clearly indicates the concept of “irrebutable pre-

sumption” is normally concerned with an issue of fact; the

decision of the Connecticut Legislature that all fathers and

mothers, whether of legitimate or illegitimate children, should

support those children is a value judgment in an area in

which the Legislature is surely competent to act.

Ill. (C) CONSTITUTIONAL RIGHT TO PRIVACY IS

NOT VIOLATED BY THIS STATUTE

As the Court stated in Roe v. Wade Supra, 176-177

(1973):

“The Constitution does not explicitly mention any

right of privacy. In a line of decisions, however,

... the Court has recognized that a right of personal

privacy, or a guarantee of certain areas or zones

of privacy, does exist under the Constitution. . . .

only personal rights that can be deemed ‘fundament-

al’ or ‘implicit in the concept of ordered liberty,’

Palko v. Conn. 302 U.S. 319,325 (1937), are in-

cluded in this guarantee of personal privacy. They

also make it clear that the right has some extension

to activities relating to marriage, Loving v. Virginia,

388 U.S. 1, 12 (1967), procreation Skinner v. Okla-

homa, 316 U.S. 535, 541-542 (1942), contraception,

Eisenstadt v. Baird 405 U.S. 438, 453-454 (1972).

family relationships, Prince v. Massachusetts 321

U.S. 158, 166 (1944) and child rearing and educa-

tion, Pierce v. Society of Sisters 268 U.S. 510, 535

(1925), Mever v. Nebraska 262 U.S. 390, 399 (1923)”

(Emphasis added)

14

However, to say that the right to privacy “has some

extension to activities relating to” marriage, procreation,

contraception, family relationships, and chilc rearing and

education does not mean and cannot fairly be construed

to mean, as the Plaintiiis in this case would have us believe,

that every activity which could conceivably be related to any

of the aforementioned areas is automatically entitled to be

included in that zone of privacy protected under the Consti-

tution. A closer look at the cases cited by the Court in Roe

v. Wade, supra, and those mentioned in the Plaintiffs’ brief

show clearly the type of rights that may be considered so

“fundamental” as to be guaranteed under the Constitution.

The right to determine what individual shall be one’s

marriage partner is protected and may not be restricted be-

cause of race Loving v. Virginia 388 U.S. 1, 12 (1967). Also

the right to determine whether one will or will not bear chil-

dren through the use of birth control has been protected in

Griswold v. Connecticut 381 U.S. 479 (1965). On the other

hand the right to determine whether one will or will not bear

children through the use of abortion has been held to be

not an absolute constitutional right and the States may im-

pose certaia restrictions upon it such as requiring that the

woman’s physician “in his best clinical judgment” recom-

mend it as necessary or, after the first trimester, requiring

that an abortion be done in a properly equipped facility by

a licensed »perative, and, in the final trimester of pregnan-

cy the state may entirely prohibit an abortion. Doe v. Bol-

ton 410 US. 179, 35 L.Ed 2d, 201, 211, 216-217 (1973),

Roe v. Wade 410 U.S. 113 & 179, 35 L.Ed. 2d 147, 182-183

(1973). Mention of this point is made to show that even in

the most private of the constitutionally protected zones of

privacy the Court has not held that state regulation has ab-

solutely nc place. For example, probably very few people

would attenpt to read the Court’s opinion in Loving v. Vir-

ginia, supri, as automatically rendering unconstitutional all

state statutes against incestuous marriages, yet such laws do

limit the fredom an individual has in determining whom he

will marry.

Othercases make it quite clear that there has long been

a process of weighing and balancing the interests which the

state is tryng to protect against those of the individual claim-

Ng >

ing a right to privacy and that often a compromise between

these two competing interests has been struck as in Roe v.

Wade, supra. Even where fundamental rights are concerned

the state has been permitted to regulate when this is neces-

sary for the individual’s own person — as regulations involv-

ing the mother’s health in the second trimester of pregnancy

where an abortion 's involved or where the opposing rights of

another individual may be involved as those of the fetus in

the last month of pregnancy where the same abortion is in-

volved.

In Prince v: Mass. 321 U.S. 158, 170 (1944) the Court

upheld a Massachusetts law which forbade children below

certain ages to sell or offer for sale any magazines or other

articles or pursue any other trade upon the public streets

despite the contentions of the child and her guardian who

were involved that this interfered with their religious free-

dom. (They were Jehovah’s Witnesses and claimed that they

were required by God as part of their religion to sell reli-

gious magazines on the streets.) Even under the later modi-

fication of Prince in Sherhert v. Verner 374 U.S. 398, 402-

403 (1963) the Court made it clear that when there is a sub-

| stantial threat to public safety, peace or order the states may

| regulate acts of individuals even though those actions are

| required by one’s religion. Although the doctrine of Prince

may be said to have been limited in its future application

by later decisions it can in no sense be said to have been

overruled. This is made clear in Wisconsin v. Yoder 406

U.S. 205 (1972) where at p. 219-220 the Court states:

“But our decisions have rejected the idea that reli-

giously grounded conduct is always outside the

protection of the Free Exercise Clause. It is true

that the activities of individuals even when reli-

giously based are often subject to regulation by the

States in the exercise of their undoubted power to

promote health, safety and general welfare... .”

In Wisconsin v. Yoder, ibid., the Court struck down the

convictions of Amish parents for failing to send their chil-

dren to any formal school for secondary education until

they reached age sixteen as required by Wisconsin law. In

so doing the Court declared at p. 214:

—

16

“It follows that in order for Wisconsin to compel

school attendance beyond the eighth grade against

a claim that such attendance interferes with the

practice of a legitimate religious belief, it must ap-

pear either that the State does not deny the free ex-

ercise of religious belief by its requirement, or that

there is a state interest of sufficient magnitude to

override the interest claiming protection under the

Free Exercise Clause.”

In holding that the law interfered with the free exercise

of freedom of the Amish the Court took note of the alternate

informal vocational training which the Amish provided their

children after their graduation from the eighth grade which

had been termed by an education expert to be virtually per-

fect training for life in the Amish community and went on

to say that the Wisconsin rule was constitutional as applied

to the general population and that the decision in Yoder

should not be construed to permit the setting up of any type

of training program by any group as an alternate to state

accredited education systems. An exemption was made for

the Amish basically for religious reasons and because they

had shown, as very few other groups could, the viability and

effectiveness of their way of life and training as a group for

over 200 years. Wisconsin v. Yoder, ibid., p. 235-236. The

Court in addition at p. 230 found that permitting the Amish

to continue in their traditional ways of training children

would not cause “any harm to the physical or mental health

of the child or to the public safety, peace, order or welfare. . .”

This obviously places the present case where no claims of

interference or religion are made well beyond the Yoder de-

cision. Also a determination that a child is not to receive

support from his father or possibly even know who his na-

tural father is can obviously work to the harm of the child

who may thus be denied physica!, emotional and educational

advantages which that father may be able to offer him not

to mention the psycholegical damage which may be done to

a child who is required to go through life without knowing

who his father is or that his father does support him, albeit

possible under I¢gal compulsion. And this is to leave out of

the discussion the interest which the general public has in

having an ordered society in which fathers are required to

support their children for the good of the children as well

sey

17

as to relieve the public of the expense of supporting that

child.

In Meyer v. Nebraska 262 U.S. 390, 400-401 (1923) the

Court at p. 403 struck down as “arbitrary and without rea-

sonable relation to any end within the competency of the

state” a state law which, as construed by Nebraska courts,

prohibited the teaching of “modern” foreign languages but

not the teaching of “ancient” languages such as Latin or

Greek to children who had not passed the eighth grade in

order to inculcate English and American ideals in children

before they learned foreign tongues and ideals and to re-

strict the amount of studies young children could take in

the interests of their health.

Pierce v. Society of Sisters 268 U.S. 510 (1925) involved

the Oregon Compulsory School Act which required all chil-

dren between 8 and 16 years old to attend only public

schools. This law was challenged by private schools as being

unconstitutional in that it deprived the::. of property without

due process of law and interfered with the right of parents

to choose the schools in which their children were to be ed-

ucated and the challenge was upheld.

It should be noted that in neither Pierce nor Meyer

was the basic premise that the state could require that chil-

dren receive a certain amount of education at qualified

schools challenged. In Yoder such a challenge was upheld

for religious reasons and then only for the Amish who were

providing a type of alternate education. And in none of these

cases was an interest of great substance opposed as it is here

where both the illegitimate children and society as a whole

have a great deal at stake.

Skinner v. Oklahoma 316 U.S. 535, 542 (1942) which

held unconstitutional an Oklahoma statute which, for ex-

afiple, permitted one who had three times been convicted

of stealing over $20.00 from a stranger to be named a “habi-

tual criminal” and sterilized without his consent while one

who had been thrice convicted of embezzling over $20.00

and was subject to the same jail sentences as the robber

could not be declared a “habitual criminal” and sterilized

without his consent; Stanley v. Illinois 405 U.S. 645. 658

18

(1972) which struck down as unconstitutional a state law

which provided for a hearing before children could be re-

moved from the care of their married parents or mother in

the case of illegitimate children but for no hearing before re-

moving illegitimate children from the custody of their na-

tural father; and Eisenstadt v. Baird 405 U.S. 438, 454-455

(1972) which declared unconstitutional a Massachusetts sta-

tute which permitted the dissemination of birth control de-

vices to married persons but not to single persons are all

cases which were basically decided on the basis of the Equa!

Protection Clause. However, in these cases the rights in-

volved were again those which could be ranked as funda-

mental the right to be able to have children; the right

to choose not to have children if one desires; and the right

of putative fathers to support and care for their natural

children.

In the present case Plaintiffs quite simply do not pre-

sent any fundamental right which requires that their privacy

should be constitutionally protected. The right to keep secret

the name of the man with whom a woman has been inti-

mate quite simply does present that same question of funda-

mental rights brought up by cases protecting one’s right to

choose a marital partner, to be able to have children or to

determine when one will have children. Furthermore, even if

this case could be considered to present a question of such

fundamental rights to privacy the interests of the child to the

support and knowledge of its natural father and of society

to have children supported by their parents certainly are such

as to justify the intervention of the state in this situation.

(See pp. 23-24 Appellant’s Appendix A)

There remain several cases relied upon by the Plaintiffs

in this regard which have not been discussed. In Haley v.

Troy 338 F.Supp. 794 (D. Mass., 1972) the Court held that

there was a denial of due process where the same judge who

required women to swear out nonsupport complaints against

their husbands or the fathers of their children later heard the

case. In passing, the Court commented at p. 804 that such a

practice might violate the right to privacy without explain-

ing exactly how this rizht might have been violated and then

went on to state:

ere EP

19

“But these rights were not asserted by the plaintiffs

and the court does not undertake to decide them.”

As the Plaintiffs state ig Mevers v. Juras 327 F. Supp.

759 (D. Ore. 1971) aff'd. 404 U.S. 803 (1972) the cour! simply

held that Oregon could not impose as an eligibility require-

ment for AFDC any additional requirements such as assist-

ance in gaining support from legally responsible relatives

when this is not part of the federal AFDC eligibility require-

ments. However, the court at p. 762 clearly holds that other

sanctions may be imposed to obtain assistance in gaining

support from those legally liable.

A reading of Roe v. Wade, supra., and Doe v. Bolton,

supra., does not bear up the Plaintiffs’ contentions that they

place the doctor-patient relationship within the zone of con-

stitutionally protected privacy and without a citation to a

specific page or the benefit of further analysis by the Plain-

tiffs it is impossible to discuss this argument further. Simi-

larly, it remains rather a mystery as to why they place re-

liance upon May v. Anderson 345 U.S. 528 (1955) which

basically deals with a conflict of laws in determining which

state courts have jurisdiction to determine an award of cus-

tody of children of a divorced coupie. And the Shapiro v.

Thompson 394 U.S. 618, 613, 617 (1969) case held uncon-

stitutional state requirements that applicants for welfare re-

side within the state for one vear before they could be con-

sidered for public assistance as it chilled interstate travel

and unfairly discriminated against those who had recently

moved into the State as opposed to long-time state residents;

again this case does not seem to offer much support to the

Plaintiffs’ claims.

Finally, as amply discussed by Judge Blumenfeld (p. 17

ff. Appellant's Appendix A) the power of the state to com-

pel people to testify has long been established and is consti-

tutionally limited only by the fifth amendment’s privilege

against self-incrimination. And the State has in this instance

protected those testifying by the enactment of Public Act

439 Section | (1971) amending Connecticut General Statutes

Section 52-435¢ and Public Act 439 Section 2 (1971) amend-

ing Connecticut General Statutes Section 52-435(b). (See

Appellant’s Exhibit A at pp. 19-20).

20

As Judge Blumenteld discusses at pp. 19-20. ibid, pri-

vilege such as the marital privilege is granted by the legisla-

ture of the state ame is not a constitutional right. It can hardly

be considered to be a fundamental right even if it could be

applied to the relationship between the unmarried mother

and tather of an illegitimate child. And, furthermore, the

“invasion of privacy” alleged to occur under the law under

question does not even involve so much as a visit to the

home or affect any participation in decisions among thos:

affected. Such an intrusion into the home was upheld as

reasonable in Hyman v. James 400 U.S. 309 (1971) in order

to see that the child who was the object of the AFDC was

being benefited by the award, to see that the money was be-

ing properly used and to provide first hand information to

the social worker. The “intrusion” of Plaintiffs’ privacy in

this case is far less than that involved in a visit into the

home. In addition, by the mere fact of her pregnancy and

having her child in her home the fact that an unmarried

mother has an illegitimate child has been made known to

a certain number of people. And revealing the name of the

father to the proper authorities in order to benefit that child

is scarcely a much more drastic invasion,

IV. NO SUBSTANTIAL FEDERAL QUESTION IS PRE-

SENTED BY THIS APPEAL.

As pointed out by the Court below (Appellant’s Appen-

dix A pp. 5-6) this case really seems to revolve about an

opinion expressed by a very few mothers of illegitimate

children that they should not have to do anything to es-

tablish or protect the rights of their children as they relate

to the establishing of the paternity of those children. This

narrowly shared opinion, now more narrow than earlier in

this litigation since the plaintiffs in the main case, Donna

Doe Et Al vy. Nicholas Norton (D. Conn. Civil No. TS,

579) (1973) moved and were granted permission by the Court

below to dismiss their appeal pursuant to Rule 14 (1), comes

into conflict with the public policy of the State of Connec-

ticut. And merely because of this conflict of views the ap-

pellants attempt to raise up serious constitutional questions

There is no sound basis in law or in the United States

Constitution to provide any basis for the claims of the ap-

pellants herein.

|

21

They lay claim to a constitutionally impermissible clas-

sification of “mothers” and “mothers of illegitimate children.”

Mothers of illegitimate children are the only mothers who

are concerned with this problem, and the statute covers all

such mothers.

The mere claim of constivutional deprivation and the

various different names applied to their really singular dif-

ference of opinion do not give rise to any federal question

of substance that ought to be further entertained by the

United States Supreme Court,

a

22

The appellee respectfully requests that this Court grant

his Motion to Dismiss this Appeal to affirm the decision of

the Court below.

Respectfully submitted,

NICHOLAS NORTON

Appellee

James M. HIGGINS

Assistant Attorney General

State of Connecticut

Counsel for the Appellee

Certification of Service

This is to certify that on the Ist day of February 1974,

copies of the foregoing Motion to Dismiss or Affirm and

Appellee’s Brief were deposited in a United States Post Of-

fice or mail box, with first class postage prepaid addressed

to counsel of record, to wit:

FRANK COCHRAN, Esquire

99 Norton Street

New Haven, Connecticut

Davip ROSEN, Esquire

EDWARD DOoLaAn, Esquire

265 Church Street

New Haven, Connecticut

JAMES M. HIGGINS

Aitorney for the Appellee

FOS AT CPN TRS Se