Jurisdictional Statement — Roe v. Norton

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OFFICE OF THE CLERK

InN THE ;

; SUPREME COURT OF THE UNITED STATES

OCTOBER TEAM, 1973

, ‘nae

| SHAROW ROR and DOROTHY POE, on behalf of themselves and

Othegs similarly situated, '

i -* APPELLANTS

vs.

NICHOLAS NORTON, individually, as Commissioner of Welfare

f Of the State of Connecticut, and on behalf-of others

i similarly situated.

\ APPELLEE

it’

iQn Appeal from the United States Three Jucge District

. Court for the District of Connecticut

a aS

" JURISDICTIONAL STATEMENT ee.

; FRANK COCHRAN

i ‘ 99 Norton Street

; j New Haven, Connecticut

Attorney for Appellants (mothers)

! DAVID KSEN

| EDWARD DOLAN

i " #63 Church Street |

ty : , : Mew Haven, Connecticut

| | | Bttorneys for Appellants (chilared.

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TABLE OF CITATIONS

TITLE PAGE

OPINIONS BELOW

JURISDICTION

STATUTES INVOLVED

QUESTIONS PRESENTED

STATEMENT OF THE CASE

THE QUESTIONS ARE SUBSTANTIAL 1

KY Omwwnn

A, THE DECISION BELOW PERMITS INVASION

OF APPELLANTS’ CONSTITUTIONALLY

GUARANTEED LIBERTY 12

B. THE DECISION BZLOW, BY FAILING TO

FIND THAT THE CONSTITUTIONAL RIGHT

OF PRIVACY INCLUDES A PRIVILEGE

AGAINST DISCLOSURE, UNDERMINED THE

RIGHT, 17

C, THE STATUTE TAKES APPELLANTS LIBERTY

WITHOUT DUE PROCESS OF LAW 18

D. HE DECISION BELOW DENIES APPELLANTS

EQUAL PROTECTION OF THE LAWS 20

CONCLUSION 21

eed

eo ae

—-

TABLE OF CITATIONS

Cases Pais

gacleson v, Saylag

494 U.S, 980 (1972)

garter Vv. Stanton

403 U.S, 669 (1972)

ev. Bol

35 LEd 2d 201 41973)

es ee eee

| ey e

310 F.Supp. 302 is. Conn.,1970) app dismissed

1 399 U.S, 902 (1970)

ev t

D, Conn., Civil #15,579

—_——

veh, den'd, 397 U.s, 970 (1970)

| Zisenstadt v. Baird

495 U.S. 438

s Feres

rip Ul8 335 (1973)

Ss nm t

381 U.S. 479 (1965

F 8 F, Supp. 794

197 y.s, ll

ov itnesses n unt ital

; 278 F, re 488 (D. Wash, 1967)

| JUres V. severs

404 U8. 803 affirming

|327 F. Supp. 7§9 (nN, Oxe,)

iS cad 4a Seas}

iss

| 3@8 u.g, } (1967)

43> 78 Boe!

a ~ > ~-»

wn? ete

alii lh tf a ora Nit es eS vie OB Rs ote 0 ha a et

Pages Cited

2-6

Vv h

1 F.Supp. oH (D. Conn, , 4969) app dismissed het U.S. 488

12,47

15,20

12,17

—— a ee + ee + ee ee oe

Table ef Citations (contd.) 3

) May _yv, Anderson 16

| 345 U.S, 528 (1955) |

! | : | Weay

}

.P. v. Alabama 17 o | | 404 U.S, 987 (1971)

| 357 U.S. 449 (1958) ba . !

| Peopt 1 wall Labreng 17 ; | ue ":

| People «x rel Wallace v, Labren 1406 U, |

] “+4 Til. 618 gert. den'd. 348 U.S. 824 1" 7. Rees

H : ; ! K : | s er 12,13,16

| Pierce v. Society of sisters 2,13 406 U.S. 205 (1972)

| 368 U.S. $10 (1925) | | 7 { 72

prinee v. Massachusetts 12.16

321 U,$, 158 (1944)

Roe v, Ingraham 18 | STATUTES _

480 F, 24 102 (and cir, 1973) | ) fe, RN a

| Title 28 U.S,¢. §1253

Roe _v. Wade 12,13,17 , Title 38 U.S.C, §1343 (3)

| 35 LEG 2d 147 (1973) | Title 28 U,§,c, 54281

! | Title 28 U.S.C, §2284

| gan Antonio Ind, school District v. Rodriqueg 20

| 36 LEG 24 16 (1973) .

\ : | Gennecticut General statutes (C,G.S,)

SO OS EE SS ee

| Schulman v, NYG Health and Hospital Corp. 17 \ : §$2-4352

| 70 Mise, 2@ 1093, 41 ADad 714, 346 NYS 2d 920 | : §52-435b

{ §52-440a

| Seifexth, tn the Matter of 13 : §52-440b

; 309 N¥ 80 (1955) . §52-442a

| : : g17-320

| Shapige y, Thompson 16 )

\ 374 U,S, 618 (1969)

| New Jersey Statutes Anngtated §9:17-2

| Shexbert v, Verner 16 :

! 374 U,8, 398 (1963) names Statutes §34-713

gx inner 4 Oklahoma 12717 | Code ef Georgia §74-301

316 U.S, 335 (1942) : phe

| Stanley y, Illinois 12,13,17,20 : ‘ ,

| 405 U.8, 649 (1972) /

M4 .

| stake v. pailey 16 : I ss camenasnatinnaamaee, eamenemn Reaem bi

| ster dal? . | ldstein, Freud and Solnit Beyond the Best

| Enkereats of the Child (Free Press, 1973)

urge ancham 16 A Sid Sit .

———

————

231 U.8. 320 (1913)

lan Vv i@

\ 3 a 24 63 (1973)

- = -

eT IY 2A Fi) EEE TER NNW we eae tho oY hai ORR ae eS

: IN Tag

SUPREME COURT OF THR UNITED STATES

OCTOBER TERM, 1973

No.

SHARON ROE and DOROTHY POE, on behalf of themselves and

others Similarly situated.

APPELLANTS

Vs.

i NCROLAS NORTON, individually, as Commissioner of Welfare

of the State of Connecticut, and on behalf of others

| similarly situated. |

A¥PELLEE

jon Appeal from the United States Three Judge District

Court for the District of Connecticut

es ee a top i

}

JURISDICTIONAL STATEMENT

Appellants appeal from the judgment of the United States

Three Wudge District Court fer thé District of Connecticut

entered September 7, 1973 denying their application for a

permanent injunction and dismissing the case, and oe this

vuatedietionas Statement ta show that the sunTene Court of the

| questions ave presented, ~- :

; |

United States has jusiedietion ef the eippeal and that substantiel

ee oe

OPINIONS BELOW,

The opinions of the United States Three Judge Digtzict

Court are not yet reported, The opinion for the District Coury

fox the District of Connecticut denying preliminary relief in

a companion case, Doe et als. v. Norton, is reported at 356 F,

Supp- 202. Copies of the Judgment and of the Memorandum of

Degision, Findings of Fact and Conclusions of Law of the Diatrict |

Court are attached hereto as Appendix A,

JURISDICTION.

Appeilants brought this action under the Civil Rights Act,

42 U, S&S, C. §19863, jurisdiction being conferred on the District

Courm hy 28 U, §. C, §1343(3), In it they sought declaratory

and injun¢tive relief under 28 U. Ss. Cc. 62201 et seq.

The constitutionality of a state statute being in Tpeerton,

thie action was accra onde « with Doe et als. vy. Norton (Civil

Action Wo. 15,579, Uv, §, PB. ¢c,, D. Conn.) in which « three judge

Fours had previously been cenvened under 28 U. Ss. Cc, he ae and

2284,

The court below filed its Memorandum of Recision, ¥pPAtnge

of Fact and Conclusions of Law On September s, 1973; . ¢ a wee

thereon was entered September 7, 1973, aS

Appellants filed their notice of appeal November 5, 1973,

Juriadiction over this appepl is predicated on 28 U, &, ¢, §1253,

see @.g, Carter v. Stanton 405 U.8, 669 (1972),

“

es wee ee oe a.

THE STATUTE INVOLVED.

Connecticut General Statutes §52-440b provides:

"“(a) If the mother of any child born out of wedlock,

or the mother of any child born to any married

woman during marsiage which child shall be found

not ta be issue of the marriage terminated by a

divorce decree or by decree of any court of comp-

etent jurisdiction, fails or refuses to disclose

the name of the putative father of such child

under oath to the welfare commissioner, if such

child is a recipient of public agsistance, or to

a selectman of a town in which such child resides,

if such child is a recipient of general assistance,

or otherwise to a guardian or guardian ad litem

ef such child, such mother may be cited to appear

before any judge of the circuit court and compelled

te disclose the name of the putative -father under

oath and to institute an action to establish th

paternity of said child.

"(b) Any woman whe, having been cited to appeay

before a judge of the circuit court pursuant to:

subsection (a), faifs to appear or fails to disgiose

or fails to prosecute a paternity action may be.

found to be ih contempt of said court and may be

fined not more than two hundred dollars or imprisoned

not more than one year or both. "

Qther statutes involved! in the construction of C,G,6. §52~44

\ put which are not challenged: in this action include:

1. ¢,@.S, $$2-435a (as amended),

"Proceedings to establish paternity of a child hern aor

conceived out of lawful wedlock, including one born

to, or conceived by, a married woman but begotten

by a mah other than her husband, shall be instituted

by a verified petition of the mother or gr, yy ret

mother, with summogs and order, filed in the cixcuit

court for the circuit in which either she or the

putative father resides..,.No such petition shall

be brought after three yéars from the birth of quch

@hild, or after three years from the cessation |.

ef contribution toward support of the e@ehild by |

the putative father, whichever is later,.,."

’ :

ne oe a -

?, C.G.S. §52-435b,

" The mother of any ghild for w

2 hom adjudication

~ ab ag is ipa in paternity proceedings aii

excuse rom testifying because her

' iden

may tend to disgrace or incriminate her; mil 9 Oe

nb thereafter be prosecuted for any criminal abe

eRout which (1) she testifies in connection with

Proceedings, er (2) she makes any statement prior

to such proceedings with .

siensaten. 2 respect to the neeng of

such

3. c.G.s,. §52-440a,

"The state or any town int

a child born our of wediows way, if’ the cen T 3

neglects to bring such petition, institute suth |

Se seine sak areas person accused of begetting

‘ @ up and

commenced by the mother a the nelnhcanes oh ae

ay A if she fails to prosecute to final jud ne

ja o Bess tien may be made by the welfare c Ssioner

¥ She town welfare administrator on infermation

and belief, The mother of the child may be sub-

poenaed for testimony on the hearing 9f the Petition,"

4. ¢.G.s, §52-442a,

"(a) In lieu of or conclusi i

$52-435a, the pk acknowledgrent eatertse ete

executed by the putative father of the child cha

accompanied by a written affirmation of paternit

eS ae and sworn te by the mother of the child

™ : +ed with the cireuit court for the cireuit in

* the mother of the child or the putative father

esides shall have the same force and effect as

judgment of that court;,.." at

‘ae

QUESTIONS PRESENTED |. ‘ STATEMENT OF THE CASE.

1, Did the Three Judge District Court err in determining Thig action to challenge Connecticut General Statutes (C.G.5. ):

i | | |

‘Raamite mothers of children born out of wedlock have no constitutional '§52-440b an constitutional grounds (and its applicability tp

i . \ '

i wight tq refuse te bring an actien to eatablish the paternity of | welfare recipients on grounds bad conflict with the Secial Security

i |

| their children and/or to refuse to seek monetary support, from ' ‘Acc) was brought by complaint dated January 31, 1973, At hearing *

| sae fathers of said children ?

;

| i February 26, 1973 on plaintiffs-appellants (hereinafter Vappelianca)

4. Did the Three Judge District Court err in deciding that jnetion to convene a three judge court, the District Court, per

ithe same mothers have no constitutional privilege against Vewman, v. ordered it angel iAated with a simi las case, Doe et als.

| discloaing the names of the putative fathers of their chiidren :

| 2% Qpen court 7

& ;

vy. Norton (cited supra,, p.2) in which a three judge court had

already been convened, All subsequest proceedings in the Dpatrict

3, Where a statute is jpatified by its proponents as being court § invelved both actions, All plaintiffs have procougeg at

| designed te protect the interests of children bern out of wedlock. | . all times under pseudonyms ‘5 Mirdos to protect the privacy they

pe said statute requires dieploeute and establishment of datognitg . on to establish in this action. |

oa where such disclosure may not be in the interests of guch | ‘ Under ¢.G.&, §52r-44cn, refusal by the mother of an st ipgs ttn

children, did the District Court err in desiding that the qtatute 7 Bee child *e divulge the name of the putative father of her child

| does net create a constitutionally impermissible presumption ? | ie the iadueariate authority triggers an original civil 1 date

4, Where a state statute Operates only against mothers, and

ced

bi : ; :

’

| atch: which may resyit in uP to one year imprisonmen and

jonly against the mothers of illegitimate children, does the A two hundred dollar fine*:, Qader it the mothers may be me

| statute violate the Equal Protection Clause of the Fourteenth

. I Although nothing in C€.G.5, $52-440b designates it as "eiyil", i

. lhe the Attorney General's position that that is the case; a palanth

i“ not dispute that iia lat gee Stipylations of tech. 92

| Anendmant to the United States Constitution ?

__e_—"—- —_ a

— o-

' While the requirements of $52~440b to divulge the fathers name

jana te bring and prosecute paternity actions appear to apply to

mothers of illegitimate children, only in three gub-cat Euros

‘ds there any enforcement provision, These are a)State Wel fer

‘recipients, b) town welfare xecipients, and ¢c) instances in nich P

some competent court hag appointed a guardian or guardian ad litem

who ig not the mether, The Pigtrict Court construed the statute

to nner :* to all aervees Bb

tha ‘ - ve A, h we 4. : : . = 's ov Ae, ts

—— -+.

;

‘

ae oe ey eee ee fee ve es C0 rg ore eee ne The ihe) ise. is atten “x ak he iets aoe edb BR in he oa DRE | ee ae.) SENG w 0. wk yas , rw

seh + aaah i

: |

i 8

| 1) to appear in court, 2) to testify as to the name and, afher The Digtrict Court, believing that there might be a canftitct of

| identifying information about the putative father, 3) te "instigute" intexest between the mothers and their children, appointed

® paternity action, and 4) te "prosecute" a paternity action, | ‘ separate aounsel ta pepvenenh any separate interests the children

| The Welfave Department has the power to bring a paternity action might have. Counsel for the children deposed pr. Albext golnit,

| . Givegter of the Yale Child Study Center and co-author of the

| Pereny bogk Revond the Best Interests of the child (with Anna

| Freud and Joseph Goldstein) (Free Press, 1973), and took an

| da the name of the Commissioner under C,G,S, $52-440a, ang the

| mother ean be forced to testify at the trial of any suttids Ling

| action, c.G,8. §52-435b and 440a,

Appellants are the classes of mothers and children ppb ject te | affidavit from Dr, Edward Zigler, former head of the Office of

the statute, This action was originally brought by two mothers | Child Development at the eany reat ef Health, Edueation nd

on behalg of themselves, their children and the classes represented | | Welfare, Both experts took the position that the interests of

| by each (Complaint, para.é,, Substituted Complaint, para. 4), the illegitimate children were not advanced and might well be

— —w

Bes %

Ha. cont,

Although appellants believe the statute is at Least afministr

ered te discriminate against them as welfare recipients, neither

| the pleadings nor the evidende is direeted toward this distrimin-

, ation in administration, and it is not therefore an issue in this

appeal, /

harmed by €,.G.§. §52-440b. Dr. Solnit took the position that the

' mother that there could be ne conflict of interest between them

For a number of years prior to 1969 the Connectieut State

| Welfare Department pursued a policy of requiring any recipient

| who was the'mather and supervising relative of an illegitimate

| child te divulge the name of the child's putative fathey ar a

| condition of the child's eligibility for Aid to Panilied with

| Dependent Children (AFDC), This practice was enjoined as violative

jof the Social Security Act, poe _v, Shapiro 302 F, Supp, 761,

| (D. Conn., 1969), appeal dismissed 396 U,.S,.488, reh. den'd@ 397

0,8, 970 (1970), ‘The Department thereafter attempted to r quize

‘such divulgence as a condition of the mother's eligibility for

| APDE benefits ag a supervising relative. This practice algo was

. |} enjoined, Doe v. Harder 310 F, Supp. 302 (1970), appeal dismissed

| 399 Y.-S, 902 (1970), This court reached the same conelusions in ‘

summarily affirming substantially identical decisions from three

Qther Districts, Meyers v. Juras 404 U.S, 203, reh. denid 404:

i'U,S, 961 (1971), Carleson y. Taylor 404 U,S. 980 (1972), Weaver v,

| | Dge 404 U.§, 98% (1971). Now Connecticut is at it again, After

|| he segond Doe 4ecision, the Department supported H.B, 6040, now

'C.G,8, §53"440b, which again seeks to « 1 mothers of illegitimate

, childven and prosecute paternity actions,’ The enforcement; meche

j anism, however, is different, “244

| chijd's interestg were so greatly bound up with those of z

! and any compulsion against the mother would prove paychelogically |

| harmful to the ehild, Dr, Zigler getated that in his opinion

disclosure ef the name and identity of _the actual father ‘ the

| @hild gould be haymful because it would destrey an ideali ed and

| useful image the child would ‘otherwise have about his/her father.

— = < ———

| On the basig of these opinions, the attorneys for the ghijcren

| joined appellants in urging the District Court to enjoin %

| opeyation of the statute, ;

. Hearing on the merits was held April 30, 1973 before

| Timbers, Cireyit Judge, and Blumenfeld and Newman, ieee

‘a Pe |

Page

. : ’ a s

Pe eee eed ee eee ee ee

——

~~?

4 : » . e

eae AR. Bia Se e's te th ead os ee ees MY we SE Ae ES ai

i edikedc wiioisale Ey Ne

CM v0

—-

———-

Appellant mothers presented evidence in fifteen affidavits

| (which weve admitted hy agreement). Fourteen of these were from

| menbers of the plaintift class of mothers. The fifteenth, that

los Katherine Lopes (Affidavit Xv as filed), described in detail

her experiences, particularly her feelings while being forced to

prosecute a contested paternity case, testifying and heing crogs-

’

examined, In her affidavit, named plaintiff Dorothy Pee did not

ieee to prosecute a paternity action because of substantial fears

ithat the pressures of testifying in court might cause her to

j : i

|undergo @ nervous breakdown, and because she had never been able

to realize any benefit from going ahead in the ease of her older

child. (Affidavit of Dorothy Poe, paras, 7 and 8). In her

,affidavit Sharon Roe stated ‘that she knew there was little

| Libelinens that her child's father would ever contribute to her

| Support and a good chance that he would break off his developing |

| retatdonahdy with the child if she tried:‘to force him to poner ut

|e her support; she also felt very etrepgly that the Commissioner :

| should net be in the position of telling her hew to i 5 2 her |

| eamssy: ‘a financial interests; Ms Roe had only been a pe Sartptens eft

ane benefits a peut time and expected to terminate en before

j Long. (Affidavit of Sharon Roe, passim.).

| .Feeaere there was substantial reason to think that, sprite

1 paternaty acticn or divulging the putative father's nage pete |

net advange the family's financial iesseeeta: either because the

——s SS eT

peti

: ,

eee eer ee a Ree

cen 4 2 Y 4 cowie hss we"Oh 0s aca tot Galt alg dy Pl 3

In the cases of several other mothers Who smn Bee

° > ty

é . , * mers . vee =

ern a Tae ee Seer Stee | re EO

statute of limitations had Already run (see C.G.3s. shind3ha,

Affidavits ZizI and XIV \y Recause the mother already hag in

her possession signed acknowledgments Of paternity whieh ould

form the bagis of a later Support order under C,G,5, sh ath Basie

(see Affidavits IV, V, and % ), Or because the gah as was

not herself cortain ef the father's identity (see Affidavits

TX and XII ). In all of the other cases there was = inform

Gecigiqn that the chances of datriment to mother and/or child

were greater than the chances of gain,

Appellants argued, based on these facts, that $5274»

violated their ponetd tobiagek wight of privacy by depriving them

ef control of their femiises' destinies and probing inte poets

past sexual conduct, that it eontained a constitutionally

impermissible presumption of unfitness on their part to make

finangial decisions for their families, that it vielated their

rights to equal protection of the laws and that it contravened

the Soqial Security Act,

The Defendant offergsad na legislative history or evidence in

s“ppert ef his contention tne the statute was intended £9 and

did protect the interests of the’ idLegi timate children, He

relied instead gelely on his claim of law that the tnceregte

advanged by appetiants enjoyed no wapept eustouas errant:

;

j :

*. : ae > ;

A : . => ee. ; . ? ;

lt i en andi ial a is 1 Nes Maal pe heat FN i tl RIE PA a Oe lt ae asd il Aeoas

® very substantial number of people. | | g

On September 5, 1973 the Court, per Blumenfeld, J,, filed

its Memorandum of Decision) Findings of Fact and Conglusiqns of

Law denying plaintiffiseappellants applications for declaratory

and injunctive relief and dismissing the case. Judge Newman fi a

ia concurring opifion. on Septenber 7, 1973 the Court entered

| judgment accordingly, Thig appeal followed.

THE QUESTIONS ARE SUBSTANTIAL

The issues of liherty from gtate compulsion in pontrotling <

itheis families’ financial course, and of protecting their sexual

poitntsing from public G@isclosure are of obvious importanog to all

‘fanilios containing an illegitimate child. In 1971 there were

\eertifgicate in Connecticut (Brieg of Appellee below p. 8). These

‘constituted 9,9% of the total births, The issues in hag nppens

ay well have application in ather states as well; as of ‘1973 |

New Jergey (N, J-S,A, §9:17"2) Georgia (code of Geergia, $747301)

and Arkansas (Arkansas Statutes §34-713) had similar wae th |

The attorney for the appellants has been informed that ached states.

are considering such legislation, Unquestionably the tenes atteae

; }

4 533 wixthe in which no name as listed as father on the tree |

. . S225 Ses SS

13 |

A. THE DECISION BELOW PERMITS INVASION OF APPELLANTS

‘ CONSTITUTIONALLY GUARANTEED LIBERTY,

The right of parents to determine the care of their ghildren i

. has long been recognized as gonstitutionally protected 1 sel A

| |

| Mevey _v, Nebraska, 262 U.S. $90 (1923); Pierce Vv, Society of

! |

Sisters 268 U,6,. $10 (1925); Prince v. Massachusetts, 321 U.S. 158

(1944); and Wisconsin y. fesse 406 U,S, 205 (1972). ‘The integrity

of the family unit has Likewise, been protected, Griswold v

Connegticus, 381 U.s, 479 (1965) ; Stanley v. Illinois 405 u.s.

643(1972), as has the right iy determine, without state intere

— —wems «

ference, such matters as anne child-bearing and marriage; pee @.G,

Skinner v. Oklahoma 216 U,5, 535, Loving v. Virginia, 388 U.S. hy,

Risenstadt v, Baird, 405 U.S. 438, and Roe v. Wade, 35 LEA 2d 147

(1973). A gxight a is within the constitutionally waerpenes

—

"gone Of privacy" can he infringed only where there is , 4 es

| pelling state interest, Roe v, Wade, supra, at 178, and then only

by statute "narrowly drawn to express only the legitimate gtate

interests at stake” Rosy, wade, Thid,, Eisenstadt y. Bai rd, supra

at 460, 449+464 (White J,, concurring), The burden of proying

=. SS:

—

that such compelling interest exists is on the state, Roe y. Wade,

supra, at 179.

The sone of privacy may protect a relationship such as r=

doctornpatient relationship Ree _v. wade, supra. ;

35 ued ad a0 (1973), oF the perital SCRE

gonnectiout, SUPER, On it may protect an individual, Blasnstade

te vaset, ery. where the ‘Pei vacy of a family is ite a icte what

“4

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| age _—

” |

¥ . + j

ik,

any

we a . os , % roe ‘ - - S

, ; . ex ie tte 4S . Rie, EE

a. ; m ig y e% +4 Sige” Miley ’ ‘ ; a, ae ‘ R . core to

ot aa

tac *

ee te. e zs = wie bec >

’

j ’

+3 | either she or the child now has with him,’ or to forego that vague |

| possibility Qf financial benefit for any of a variety of ather

i 1 !

| Feagong, While many, probably most, women in their pregidament,

yatwanertiy choose the former, plaintifgs mothers and the gq Arne

| is protected is the parent's right to decide questions affecting

the family; see Pierce v. Society of Sisters, supra., Stanley v,

ZLilingis, supra., at least until the children are old enough co

| formulate their own views on the subject; seq Wisconsin v. Yoder

| 406 U.S. 205, 229 et. seq.. and Matter of Seiferth 309 N.Y. 30,

; All of the children involved in this action are well helow the age.

, 2¢ which their opinions can be formulated and represented separately

| from these of their parents,

Yory represent chose the latter, Plaintiffs teok this Poured. for

ef their children;

‘

\ 8 s variew ef rational reasons Which did not ignore the intereste

Theve gre a number of eet de yc in somewhat similar cqses

| datimating that family decisions such as those involved in this

interest between mothers and children, Any financial sip to the

na th ake Gone a privacy as Mieke wae ie ce gongiics = case should be congidered within the constitutional zone of privacy

Thus Judge Murray (D Mass), in enjosning a munigi pal auahice from

| fercing welfare mothers to sign nonsupport warrants and then

j Child is also financial gain to the mother since it relieves her,

i ito that extent, of her duty to support the child,

trying the cases of crimina) nonsupport, stated:

It may be that conduct by the defendant which

resulted in women “Against th swearing out non+

| Peychelogically, there is algo no conflict, see Deposition of Dr,

| Albert Solnit, passim | |

support complaints agminst their husbands and

being further involved in the subsequent Prosen

i eutien might be fo to violate other rights,

for example the right of privacy, protected by

| the Constitution through the first amendment

1ST dantegs omitted), But these rights were not

apserted by the plaintiffs and the court does

If the question is whether the child should for his/her qwn |

| good be informed who his/her father is, that is a decigion to he

made in private between the mother and her counsellor. S¢e Roe not’ undertake to decide then Haley v. Troy 44

BP, Supp. 794 at 804. (D Mass, 1972)

;

Even where subject to countervailing tnsereaty these parental

ee ee ete eee

And in striking down an Oregon regulation requiring, as a condition

: rights may not be invaded by state power except in re with or eliginid ity iy | nother ei I i ps wR Gpomesn

| (waiting for a unamimous theeerjudge panel) stated:

| due process, v, Illino ‘supra, (See part 1iC infra,,

The State Public Welfare Division was directed

; hy Congress to secure the mother's cooperation |

developing potential income resources, but

hj it was not authoriged to terminate an AFDC grani

(which iq for childyen) to- coerce the cooperation

a of a mother.,. Neither do we hold that the State

«8 Oregon may gah the AFDC mother's wonpeny ste j

which arques §52-440b? violates due process).

The named plaintiffs have been faced with a difficult choice;

j Whether tq puraue the vague possibility ef receiving eupport and |

;

: other henefits from the putative fathers of thejr childzen through

;

the channel ef a paternity action with its akcendant pegs’ le

{

, public humiliation and haraegnent and with the pect tha et

# | 7 ae | vagaries of the spa

ard ‘ at?

4 oi tae wily i cha iy sep cm

a father would flee the jurisdiction thug ending any pam

7 | /

i |

B . ee ae ae 2 Bie Mee Wola aks we

; : | | 16

15 hot gompelling interests justifying overriding the parental

; privacy right, Shepiro v, Thompson 374 U,8. 618 (1969), See alio

oS nee. co aeptee-oo

f through means lesg drastic than the i 4

| withdrawal of benefits from her children, | May Ys Anderson 345 0,6» $28 (1935),

Meyers v. Juras 327 F. Supp, 759, 762 (1971) (

affirmed 404 ,g, 903 (1972).

a rare —_ ~—w

: . Cases imposing on parent!s the duty of cooperating with other |

types of public policies are not controlling here. In

| } v c 197 U.S. 11, the Supreme Court up- |

| ‘ held a state law making gompulsory vaccinations. The rationale

' Clearly, §52-440b is substantially more drastie than the procedure:

found unacceptabje in Juras,

There are, of course, limitations to the extent of the aons~

for decision was that there was a particular public interest '

' in preventing the spread ef disease which justified oever-

Hl riding any private interests to the contrary. In the language

Opposing constitutional richts or by “gompelling interests", It © +1 feo Fhaeon. 95, the public health constitutes a compelling ;

titutional zone of privacy. Limits may be imposed either by

is submitted that neither is present here. The defendant did pot

. upheld a criminal conviction of a parent for violation of '

the child labor laws over a ¢laim that the First Amendment's |

free exercise of religion clause prevented the state from so: |

eriminaliszing religious activity, in that ease the gelling of |

Thexe is ng constitutional right in opposition te the right veligioug tracts. In go ruling, the court relied upon the.

r velidity of the child labor laws which found a public purpose

asserted by plaintiff mothers. The children have a fa 5 i sufficient te override any contrary private party see,

| @-G> farted ea Renuehioan 231 U.S. 320 (1913). has

; been limited ater Th agttoeyee Sherbert v, Verner 374

plead or prove any compelling interests, although it was his

z 321 U.S. 158, the Supreme Court

burden to do so, Roe 35 LEd 147, 179,

right ¢9 support from their parents, Connecticut General g§ atutes, ; ;

; | : ; U.S. at 40283 406 U.S. ag 230, and it ie |

| $17~320, In addition, if the state has support laws as Connecticut | H now appears that the decigion in Prince would pot be upheld |

) \ in Light of the "compelling state interest" test now applicable

| does. 4% may not discriminate against illegitimate children, ‘ te gases involving the constitutional right of privacy, See |

H ; ; i Rog Ys_Mads. supra,, at 4225-6, Prince, in any case was )

| Gomeg vy. Peoremz 409 U.S, $35 (1973). But there has not, heFetofare, : cerngd with the validity of a regulation upon the activitie

t | of minors though enforced against their guardians in circum |

| \ stances Where the same activities could not be prevented if

| ecaryied on by an adult, Xt is hardly determinative of! this

" ease in which there ig ne evidence that that the Statute

promotes, and substantial*evidence that it is harmful to the

|, been @ constitutional right te receive support.”

~—— oe ee Ce

The financial interests which are claimed to oppose the

{{

\ mother's privacy vight, whether they are conceived of as deriva- interests it theoretically promotes.

Ws , . sens m7

| tive ¢f the child's interests in seeking support or the ie Nee ip the = of the state te % achea) att *

f gis (268 U.S, 510, £'t, and Wise |

eupre, ese cases rely upon the public and private!

} .

| interest im seeking reimbursement for Welfare monies spent, are 3 ‘

| | henefita wh ek compulsyry education supposedly ¢onfers, and

| f

| dover eerie omen therefore meet the compelling state interect test, In the.

? Nothing im Gomez supports the claim that the child's interest : | & instance, the defendant has not suggested any public |

; | ds alwaye greater than the parent's right to determine the } erst From the enforcement of C.G.8, §52-440b) tha only —_|

family destiny or the parent's vight to privacy. Iwas ; EX wstimate gain which could be forthceming from its enforcement |

| . dm m@ way concerned with such a situation. gee Lind 3 | ; would be private and financial, and accrues as ;

| Bichard D. 35 L.Ed.24 536 (1973), as ; % |

: se, 7 ~ t ; . > "9

; pw ; ‘ .

ee See ‘ et dé bea bas s% e8 t it. oe - - we Ae +. a ee ee ee ens ee ee : 7. eee ee ee . §

! B, THE DECISION BELOW, BY PAILING TO FIND THAT THE

CONSTITUTIONAL RIGHT OF PRIVACY INCLUDES A PRIVEAGE

AGAINST TESTIFYING, UNDERMINED THE RIGHT,

The areas of sexual conduct, and procreation are unguestione

| ably protected by the "zone ef privacy" emanating from several

| ¥. Connecticut (supra) Skinner v. Oklahoma (supra) Loving vy,

| ¥eesdnda (supra) Bisenstadt y. Baird (supra) Roe yv. wade (supra),

The decision below seriously undegmines the holding 9

NAA.C.P. v, Alabama 357 U,$. 449 (1958) incorporating a privileg

, *ainet Gisclosure under cirgumstances where dampering of First

| Awendmens liberties would be likely to result. sn so deana, the

! :

District Court sought to distinguish the line of cases Fommensing

| with Griswold on the basis that none of them involved, at the

constitutional level, a privilege against testimony, other lowex

1 >

| cougts, however, have found that the right of privacy contains a

’

| gongomitant right against disclosure, gee, e.g. Bchulmen_v. New

Of the specifically enumerated constitutional liberties, Griswold |

| York City Health and Hospital corp. 70 Mise 24 1093, 335 wys2q

| 714, 341 wyS2d 242 (1973), Judgment on remand 346 re ps (1973),

Aion aes pea sg

* (gent)

mugh to the mothers as te the babies,

Nor d@ gases permitting the state to remove children from

theis parents custody temporarily to affect vital medical

progedures support defendant's position, see e.g. le

i Wallace y, Labrenz 411 Ill. 618, cert. den'd 344

U.S. 924 and Jehovah's Witnesses v. Kin 1y HOsD

278 F, Supp. 488 D, Wash,, (1967), They impose no penalty

on the parents and permit such removal only after indivi

due process hearing as to its propriety. see e.g.

¥sZidinois, supra.

' | aegumption is erroneous and illogical in many cases. But p52-440b

eS ee ee ee ee eee imine ctelibie... = 0. a0!

i 18

—_

-_—

| (append pending) which struck down a New York Gity Health Departe |

' ment regulation requiring the filing of a fetal death certificate

| following an abortion, See also Roe v. Ingraham 480 F2d4 102.

| (and Ciz.. 1973, Priendly GhJ) convening a three~judge gourt to

j Retemnine. inter alia, whethey a requirement that certain Deater's

| preseviptions be registered with the State Department ef Health

ee eee te

| violated the constitutional tight ef privacy.

There is thus a substantial question whether the Court below

a ee ee eee

erred in gefusing te find that a privilege against disclogure is

contained in the constitutional right of privacy.

} G, THE STATUTE TAKES AWPELLANTS LIBERTY WITHOUT DUE PROCESS

| oy LAW. ' ;

I Ag neted above, €.G.S. §52-440b removes from the appellant

| mothers the right to decide for themselves whetheg er net to seek

| supper fow their children from the children's fathers. The

; ' , ;

| statute is premised on the assumption that any refusal or failure

| ef the motheg to seek such sypport iz contrary to the child's

| interests; it therefore singles out those mothers who refuse to

| Pursue ceurt action to establish paternity and penalizes them

| severely. yet, ae the uncentraverted evidence presented by

pane ties and hy the attorneys for the children proved, a

\ .

| does not permit,

' much less nequire any prior proceeding te

i ,

i 9 The statute is permissive rather than mandatory ag te penalty,

| 79" thig reason the District Court found that the presumption was

pot iryebuttable. But neither the majority of the pigtyict court

| Ror the statute provided any guidelines for the supposed discre-

| $ion of the Connecticut Circuit Court judges, and Judge "Newman's

| q@onqugwence gives only the barest of outlines, The Court also

. @verloqked the stipulation as to policy filed by the defen

wien indicated that it was Nia policy to pursue all

’

ing mothers within his poyers under the statute, Sti

——

== ="—_—

= > - - =

D., THE DECISION BELOW DENIES APPELLANTS EQUAL PROTECTION

| detexmine where the childs best interests lie, Or THE LAWS,

_—

Arbitary and irrebuttable presumptions in the area of ghild

' gustedy and support violate due process, Stanley vy. apote 405

} 3

| U.S, 645, (1972), See also Vlandis v, Klein 37 LEd2d 41973),

While the state may sometimes, in the compelling individual

C.G,S. §52-440b operates only against mothers and only.

mothers of illegitimate cflildren. It forces this class 9£ persons:

—_— — ---—-— - oe Ce

es ee

to seek support from the other parént for a child on penalty of yp

—_———

H to a year in jail and @ $200.00 fine, There is no Connecticut

| intexest of the child, justify invasion of the zones of privacy

! Statute requiring any such action of any other class of parents,

outlined above, the question of whether it may do so in the

| ' theugh the child's interest in seeking support the same is irrea-

wholesale manner contemplated by §52-440b is clearly substantial *

i Re pective ef whether he or she is illegitimate or Legitimate or of

| so as to warrant plenary review, |

whether he or she resides with a mother or father. No eyidenge

was adduced by defendant which would support these er:

In applying against women only and pqaracs families having

an illegitimate child only, the statute relies on two ay nett,

categories: sex and illegitimacy. See ¢,g, stanley v. rpineis

405 U,S. 645 (2973) and Gomes v. Perez 409 U.S. 535 (1973).

Thus, whether or not the coprt is persuaded that plaingiqfe~

appellants claim of a constitutional privacy right again t the

operation of the statute, theee are substantial queat | presented

as to which equa} protection standard should have been applied

and whether the gtatute meagures up to the applicable standard,

B9@ @,9- Mebex y. Aetna Casualty end surety co. 406 v.S. 164

(1973), Gomem v, Perez (supea.) and RGR Ra) wma

«~Piatyict vy, Rodriqueg 36 LEdad 16 (1973), . '

;

Bet

ate : sem Oe! Oe ee - na. : - Ate —e ol, aed oP te AN jad atees 4

‘

| 21,

: CONCLUSION |

i Repel lente respectfully submit that the Supreme Coprt has |

| jurisdiction over this appeal under 28 U.s.c, §1253 and that the:

questions presented , involving as they do whether a State statute

i vielates constitutional rights Of parents toa bring up theix 4

§ @Ghildren and of privacy and whether the same statute denies these!

| mothers due process and the equal protection of the tah are

substantial. Appellants therefore respectfully urge ) this Court

| 0 revdrse summarily the United States Three Judge Dis ict Court

for the District of Connecticut or te set the case ore for

plenary consideration,

! age [J

: ~— C biped

FRANK COCHRAN EIS itera as.

1 99 Norton Street '

\ N Haven, Connecticut

f (203) 865-8864

Attorney for Appellants inetheng)

| Sone

" j

i DAVID ROSEN

| EDWARD DOLAN

| 265 Church Street

j New Haven, Connecticut

h (203) 7873513

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