Jurisdictional Statement — Little v. Streater

;

.

w= 15.3

IN THE

‘OFFICE of

SUPREME COURT OF THE UNITED STATHSSUPREW, € cons CLERK *

RT, Us. Lae

October Term, 1979 w

Gs AQ = ow 79 a

WALTER LITTLE, SH.

Appellant, ae

Saele

Ve x seal ,

‘B

GLORIA STREATER, es:

wapide

Appellee. mn:

i el

ON APPEAL FROM THE APPELLATE SESSION

OF THE SUPERIOR COURT OF CONNECTICUT

JURISDICTIONAL STATEMER,.

Jon C. Blue

Legal Assistance to Prisoners

340 Capitol Avenue

Hartford, Connecticut 06106

(203) 566-2030

Counsel for Appellant

June 12, 1980

=

Or aa Oee ES <a 4% sae eo ee ee ae oe ee” 1

TURES SEEEOD. «6 4 eu: & a) WOR See a a oe ae

CASES BELIEVED TO SUSTAIN THE JURISDICTION... 2

STATUTE AND CONSTITUTIONAL PROVISIONS INVOLVED . 3

QUESTION PRESENTED . .....ecee -% £7 ee aie

STATEMENT OF THE CASE . i ces « a ee oe ee

HOW THE FEDERAL QUESTION WAS RAISED AND

DECIDED BELOW 7 . . . . . > 7 > . > . *. ° . . ‘ 5

THE QUESTION IS SUBSTANTIAL . . ae we ee ee ek

CONCLUSION e. . . . 7 . . . 7 7 - . . - . > - a . 19

ii

TABLE OF AUTHORITIES

Page

CASES

Michael B. v. Superior Court, 86 Cal. App. 3d

2006, 150 Cal. Rptr. 586 (1978) . 2. ee weee’l”

Bigsby v. Bates, 59 Ohio Misc. 51, 391 N.E. 2d

1384 (CoP. 1978) . . . . . . . . . . . . . 5,9,33

Boddie v. Connecticut, 401 U.S. 371 (1971) . . . 10,11,12,13

peete Vv. Hart, 47 Conn. 480 (1876) . « e es ees kL?

Boykin v. Alabama, 395 U.S. 238 (1969) ..... 3

Britt v. North Carolina, 404 U.S. 226 (1971) . . 15,16

Burton v. Wilmington Parking Authority, 365

Uede 715 (1961) . . . . . 7 . - - . 7 . . . . 15

Caban v. Mohammed, 441 U.S. 380 (1979) . ....417

Coleman v. Alabama, 377 U.S. 129 (1964) ... 3

Commonwealth v. Possehl, 355 Mass. 575,

eee emsee OOF C1969) . ss 2 oo 0 st eo ow 0 tee ae

Cramer v. Morrison, 88 Cal.App. 3d 873,

Dae Gees Beet. S65 (1979) « <0 c's 0 «0's « « EE

Evans v. Newton, 382 U.S. 296 (1966) ...... 15

Ferro v. Morgan, 35 Conn.Supp. 679, 406 A.2d 873,

cert. denied, 177 Conn. 753, 399 A.2d

526 (1979) . . . . . . . . . - . . . . . -6,9

Franklin v. District Court, 194 Colo.

meme Ore Pete 1072 (2977) we wo ec oo 0 ot oe FeO eae

Madeline G. v. David R., 95 Misc.2d 273,

407 N.¥.S.2d 414 (Fam.Ct. 1978) . . 2. 6 « « « 9,15

Graves v. Daugherty, No. 14517 (W.Va. May

Ads 1980) . . . . * . . . . . . > * * . . . 7,9

Griffin v. Illinois, 351 U.S. 12 (1956) .... 10,15,16,18,19

Hepfel v. Bashaw, 279 N.W.2d 342 (Minn. 1979). . 8,11

Kelsaw v. Green, 6 Conn.Cir.Ct. 516, 276 A.2d

909 (App.Div.Cir.Ct. 1971) . .....«-e« « « .l?

Knox v. Siddell, No. 734 (Conn.App.Sess.Super.

Ct. March.16, 1979). . ~- ce ceccrevevcecve J@

100 Misc.2d 220, 417

1979) . . . . . . 7

Lascaris v. Lardeo,

N.Y.S.2d 665 (Fam.Ct.

9,11

ili

Lurry v. Mills, 152 N.J. Super. 127, 377

A.2d 804 (1977) . >. >. . . * . . . . . . . >

M. v. S., 169 N.J. Super. 209, 404 A.2d

653 (1979) * . . . . . . . . . . . . . 7. . >.

Mayer v. City of Chicago, 404 U.S. 189 (1971) ,

Mosher v. Bennett, 108 Conn. 671, 144 A,

247 (1929) * . . . . . . . . . . . . >. o >. >

Ortwein v. Schwab, 410 U.S. 656 ek ye) PT ee

Raley v. Ohio, 360 U.S. 423 [oeaey 6s Sse a. 2

Roberts v. LaVallee, 389 U.S. 40 (2967) ~« ws »

Robertson v. Apuzzo, 170 Conn. 367, 365 A.2d

824, cert.denied, 429 U.S, Gee CROTe). «é e

Smith v. Walker, 138 N.J. Super. 187,

350 A.2d 319 (1975) ...., “es Se ae er ey ee

Stanley v. Illinois, 405 U.S. SGs CaS72)' 6. <

State ex rel. Heller vy. Miller, 61 Ohio St.2d

6, 399 N.E.2d 66 CNA) ¢ th a ck att asi

State ex rel. Ortloff vy. Hanson, 277 N.W.2d

205 (Minn, 1979) . . . . . . . . . . . . . .

Streater v. Little, No. 806 (Conn.App.Sess,.

Super.Ct. Feb. 29, 1980) cert.denied

180 Conn. 756 (1980)... “2 My Se ee eee

In_re Subler, 100 S.ct. 1003 Gapeer bh « © %

United States v, Kras, 409 U.S. 434 (1973) .

Walker v. Stokes, 45 Ohio App.2d 275,

344 Bebe aed 159 (1975) . . . . . 7 . . . . .

Walker v. Stokes, 54 Ohio App.2d 119,

375 N.E.2d 1258 (1977) . . . . . . . . . . .

Wardius v. Oregon, 412 U.S. 470 [a073)"s «6th

STATUTES

SS Vids0s Oi257 (2). 4. 6 esc a ae a ar Ta

OF WiRees Mies sk x ee oie ce ae or ee te ee

Ala. Code tit. 26 Beere: SARte) «swe ¢ «ek

Ark, Stat. Ann. §34-705.1 (1962) ..... °

Cal. Evid. Code §894 (Deering 1966) .. * ack

Conn.Gen.Stat. §46b-160 (1979) ..,..., .

Conn.Gen.Stat. §46b-168 (1979) .. “hPa ee

Conn.Gen.Stat,. §46b-169 (1979) ..,.., ..s

Conn.Gen.Stat. §46b-215 (1979) ...., . os

Conn.Gen.Stat. Geresee CLOTS) 2 os 6 oo CaN

1976 Conn.Pub.Acts. No. 76-436 . . . 7 . . .

7

2

1,2,3,5,6,7

4

9,13,14

9

4

iv

16 D.C. Code §2343 (1973) a ae Ee ae ae et rte Y. os 7

1980 Ga.Laws No.1331 §1 (to be codified

as Ga.Code §74-311) (effective July 1, 1980)... 8

Haw.Rev.Stat,. wre CEE «¢ CaS 6% «a cS 7

wee Sees Brekke? (2908) os 6 sé ws eee 8

Tll. Rev. Stat. ch.106 3/4 §3(Supp. 1979) .... 7

Kan. Stat. §23-132 (1974) ...... ‘e's oeise’ F

La. Rev. Stat. Ann. §9:397.1 (West Supp. 1980)... 7

Me. Rev. Stat. tit. 19 §279 (Supp. 1979-80) ... 8

Md. Ann. Code art. 16 §66G (Supp. 1979) ....., Pa

Mich. Stat. Ann, Bano SPC) CEOTA) od och ew ok fe 8

Miss. Code Ann. §93-9-25 (1972) .......4.. 8

Nev. Rev. Stat. §56.020 (1979) ......4.4.., 8

NH. Rev. Stat. Ann. §522.3 (1974) ...... ° 7

N.Y. Fam.Ct.Act §532 (McKinney Supp. 1976-79) .., 7

N.C. Gen. Stat. O5=50.2 (Supps 2970)... sé ee 2

N.D. Cent. Code §14-17-15 (Supp. 1977) . . 2... 7 |

Ohio Rev. Code Ann, $3111.16 (Baldwin 1976) ... 8

Or. Rev. Stat. g109.256 (1979) . . . . e's « ee 7

42 Pa. Cons. Stat. Ann. §6132 (Purdon Supp. 1976) 8

R.I. Gen. Laws §15-8-13 ceeee. ATO) %0 a Me «x 8

Tenn. Code Ann, §24-716 (Supp. 1979) ......, 8

Tex. Fam. Code Ann, §13.03 (Vernon Supp. 1980) , 7 }

Utah Code Ann. §78-25-23 (1977) ......../ 7

Va. Code §20-61.2 (Supp. 1979) ..... ce se 8

Wash. Rev. Code Ann, §26.26.140 (Supp. 1980-81) 8

Wis. Stat. Ann, §52.36(2) (West Supp. 1979-80) , 7 |

{

|

Wyo. Stat. §14-2-114 (1978) . . . . . . . . . 8

OTHER AUTHORITIES

The Book of the General Laws for the People

within the Jurisdiction of Connecticut (1673) 16

MP GibeRs GER ES ARTE 6 oa Sa 5% os ele

Ky. Op. Att'y Gen, 65-391 . . . . . . . . 7 . . 7

Krause, Joint AMA-ABA Guidelines:

Status of Serological Testing in Problems

of Disputed Parentage, 10 Fam.L.Q. 247 (1976)

Letter from Thomas W. McKean, Director, Indiana

Child Support Division, Department of Public

puty Prosecuting Attorneys

1979) (unpublished letter on file

in the office of appellant's attorney).

Welfare to IV-D De

(December 4,

Terasaki, Resolution By HLA Testing of 1000

Paternity Cases Not Excluded by ABO

16 J.Fam.L.

543 (1978)

U.S. Const. amend XIV §1 é

ll

ll

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

|

}

|

WALTER LITTLE,

Appellant,

Ve

GLORIA STREATER,

Appellee.

ON APPEAL FROM THE APPELLATE SESSION

OF THE SUPERIOR COURT OF CONNECTICUT

JURISDICTIONAL STATEMENT

The appellant, Walter Little, appeals from a final judgment

of the Appellate Session of the Superior Court of Connecticut,

entered April 1, 1980, holding that Cong.Gen.Stat. §46b-168 (1979),

which requires all defendants in paternity proceedings, irrespec-

tive of means, to pay for blood grouping tests in advance of

trial, does not, as applied in this case, violate the Due Process

and Equal Protection Clauses of the Fourteenth Amendment to the

Constitution of the United States.

OPINIONS BELOW |

The opinion of the Appellate Session of the Superior Court

of Connecticut, dated February 29, 1980, which appears at p. la

of the Appendix hereto, is unreported. The April 1, 1980 Order

of the Supreme Court of Connecticut denying certification is

reported at 180 Conn. 756 (1980) and appears at p. 3a of the

Appendix. No opinions were filed by the Superior Court of

Connecticut at the trial level.

JURISDICTION

This appeal involves a proceeding, brought by the appellee

pursuant to Conn.Gen.Stat. §46b-160 (1979), to establish the

paternity of a child born out of lawful wedlock.

The judgment of the Appellate Session of the Superior Court

of Connecticut, affirming the judgment of the trial court that

appellant was the father of the child in question in spite of

the fact that the trial court denied appellant's motion, based

on his indigency, that the cost of a blood grouping test be paid

by the State of Connecticut, was entered on April 1, 1980. A

Notice of Appeal to this Court, a copy of which appears at p. 4a |

of the Appendix hereto, was duly filed in the Appellate Session

of the Superior Court of Connecticut on June 3, 1980.

The Jurisdiction of this Court is invoked under 28 U.S.C.

81257 (2), the validity of Conn.Gen.Stat. §46b-168 (1979) having

been drawn into question on the ground of its being repugnant

to the Constitution of the United States as applied in this

case and the decision of the Appellate Session of the Superior

Court of Connecticut being in favor of its validity.

CASES BELIEVED TO SUSTAIN THE JURISDICTION

The Appellate Session of the Superior Court of Connecticut

explicitly viewed this case as drawing the validity of Conn.Gen,.

Stat. §46b-168 (1979), as applied in this case, into question

and decided in favor of the statute's validity. See pp. la-2a

of the Appendix hereto. For reasons discussed at pp.5-6

infra, although appellant raised his underlying constitutional

claims at the earliest stage of the trial proceeding, the

validity of the statute was first raised on appeal to the

Appellate Session.

, Sp 3 5

This Court has consistently held that there can be no

question as to the proper presentation of a federal claim when

the highest state court actually passes on it. See Boykin v.

Alabama, 395 U.S. 238, 241-42 (1969); Coleman v. Alabama, 377

U.S. 129 (1964); Raley v. Ohio, 360 U.S. 423, 436-37 (1959);

Whitney v. California, 274 U.S. 357, 360-63 (1927).

STATUTE AND CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the validity of Conn.Gen.Stat. §46b-168

(1979). That statute provides that:

the court, on motion of any party, may order the mother, her child

and the putative father or the husband of the mother to submit

to one or more blood grouping tests, to be made by a qualified

physician or other qualified person, designated by the court,

to determine whether or not the putative father or the husband

of the mother can be excluded as being the father of the child.

The results of such tests shall be admissable in evidence only :

in cases where such results establish definite exclusion of the

putative father or such husband as such father. The costs of

making such tests shall be chargeable against the party making

the motion.

|

!

In any proceeding in which a question of paternity is an issue, |

|

This case also involves the Due Process and Equal Protection

Clauses of Section 1 of the Fourteenth Amendment to the

Constitution of the United States. That section provides, in

, relevant part, that:

(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.

QUESTION PRESENTED

In a paternity proceeding that the State of Connecticut

caused to be instituted by a recipient of public assistance

against an indigent, incarcerated defendant, does Conn.Gen.Stat.

§46b-168 (1979) violate the Due Process and Equal Protection

Clauses of the Fourteenth Amendment to the Constitution cf the

United States when applied to deny the use of blood grouping

tests to the defendant solely because of his indigency?

STATEMENT OF THE CASE

The appellee, Gloria Streater, instituted this paternity

proceeding on July 11, 1977, in what was then termed the

Court of Common Pleas, +/Geographical Area No.6, in New Haven,

Connecticut (r.4).?/ She sought a judgment that the appellant,

Walter Little, was the father of a female child, Kenyatta

Chantel Streater, to whom she gave birth on May 21, 1975. At the

time this action was instituted, appellee was a recipient of

public assistance. As a requirement of continuing eligibility

for such assistance, she was compelled to disclose the name of

the putative father of her child to the Connecticut Department

of Income Maintenance (Transcript of September 28, 1978, at 5-6)..

See Conn.Gen.Stat. §46b-169(1979). That agency then referred

the instant case to her attorney for prosecution (R.29).

At the time this action was instituted, appellant was

incarcerated in the Connecticut Correctional Institution,

Enfield (Transcript of September 28, 1978, at 11). As a result

3/

of his incarceration he was indigent. He consequently filed a

Motion For Blood Grouping Test In Forma Pauperis on November

28, 1977 (R.8-11A). This Motion recited the facts of his

indigency and requested a court order requiring appellee and

her child to submit to a blood grouping test and a further order

that the cost of such test be paid by the State of Connecticut.

1/ The Connecticut Court of Common Pleas was merged with the

Superior Court of Connecticut on July 1, 1978, while this case |

was awaiting trial, pursuant to 1976 Conn.Pub.Acts No. 76-436§1.

2/ The record before the Appellate Session of the Superior Court

of Connecticut consisted of a Record of various @ocuments filed

in the action, cited herein as "R.," and separately bound

transcripts of proceedings in the trial court on December 5,

1977, and September 28, 1978,

3/ The trial court later specifically found appellant to be

indigent. See Finding 8 (in an unpaginated portion of the

Record).

nigin

On December 5, 1977, however, this Motion was denied by the

Court to the extent that it requested that the Mine, A such

tests be paid by the State (R.1).

[he paternity action itself was tried before the Court */ |

on September 28, 1978. Appellant was still incarcerated at the

time of trial and had been unable to afford a blood grouping |

test. Consequently, no such test was ever taken (Transcript

of September 28, 1978, at 2). After the trial, on October 4,

1978, the Court entered an order finding that appellant was the

father of the child in question (R.2).

At a hearing in damages, on October 16, 1978, the Court

found appellant liable for a total of $6,974.48 for maintenance

and support of the child in question and attorney's fees, payable

to the Connecticut Department of Finance and Control (R.38-39).

The appellant appealed on the issue of whether the trial

court erred in denying his Motion that the cost of a blood

grouping test be paid by the State. On February 29, 1980, the

Appellate Session of the Superior Court found no error. The

Supreme Court of Connecticut denied certification on April l,

1980.

HOW THE FEDERAL QUESTION WAS

RAISED AND DECIDED BELOW

At the earliest stage of the proceedings below, the appellant

raised the claim, in his Motion For Blood Grouping Test In Forma

Pauperis, that the denial of an Opportunity to obtain a blood

grouping test because of his indigency "would deprive him of

property without due process of law and deny to him the equal

protection of the laws in violation of the Fourteenth Amendment

to the Constitution of the United States" (R.9). At this time,

Conn.Gen.Stat. §46b-168 (1979), had not been construed as

requiring the costs of blood grouping tests to be charged to the

4/ It is settled law in Connecticut that defendants in paternity

proceedings, irrespective of means, may obtain jury trials only

upon payment of a fee. Robertson v. Apuzzo, 170 Conn, 367, 365

A.2d 824, cert. denied, 429 U.S. 852 (1976).

=3a

party moving for the tests irrespective of his means. Since

the statute was not considered as controlling by the trial

5/

court or either of the parties there was no occasion at the

trial level to draw its validity into question. The trial court's

denial of appellant's Motion that the costs of blood grouping

tests be paid by the State, however, plainly constituted a

rejection of his constitutional clains. °/

Appellant appealed to the Appellate Session of the Superior

Court of Connecticut, reiterating his consitutional claims in

his Assignment of Errors. While the instant case was on appeal,

however, the Appellate Session rendered its decision in Ferro

v. Morgan, 35 Conn.Supp. 679, 406 A.2d 873, cert. denied, 177

Conn. 753, 399 A.2d 526 (1979). Ferro, for the first time, con-

strued Conn Gen.Stat. §46b-168 (1979) as mandating that the

costs of blood grouping tests in paternity cases be charged to

the party moving for such tests, irrespective of his means,and

upheld the constitutionality of this newly enunciated statutory

requirement,

The Appellate Session considered appellant's constitutional

claims in the instant case in the light of its intervening deci-

sion in Ferro v. Morgan. It explicitly considered those claims

as drawing the constitutionality of §46b-168 into question.

The first sentence of its short per curiam opinion expressly

states that "This case presents ... the question of whether in

a paternity proceeding General Statutes §46b-168 ... violates

the due process and equal protection rights of an indigent

5/ Conn.Gen.Stat. §46b-168 (1979) was not mentioned by the

Court or either party during the hearing on appellant's Motion.

Transcript of December 5, 1977, j

6/ In Finding 13 (in an unpaginated portion of the Record), the

trial court expressly "concluded" that the denial of a blood

grouping test to an indigent defendant in a paternity action

did not violate the Fourteenth Amendment to the Constitution of

the United States,

=§=

defendant in such a proceeding." P.la, infra. The Appellate

Session expressly concluded that the statute does not violate

these rights. In doing so, it plainly satisfied the juris- i

dictional requirements of 28 U.S.C. §1257 (2). The Supreme Court

of Connecticut denied certification.

THE QUESTION IS SUBSTANTIAL

The most dramatic indicium of the substantial nature of the

question presented by this appeal is the almost total isolation

of Connecticut law on the issue of blood tests in paternity pro-

ceedings involving indigent defendants. Connecticut is one of

just two states that statutorily require all defendants in

paternity cases, irrespective of means, to pay for a blood

7/ |

test in advance of trial. Of the numerous judicial decisious

7/ Connecticut and North Carolina are the only states that

Statutorily require the party requesting a blood test to pay

for that test in advance. Conn.Gen.Stat. §46b-168(1979); N.C.

Gen.Stat. §8-50.1 (Supp. 1979).

In Contrast, twenty-four states and the District of Columbia

expressly allow the costs of such tests to be charged to the

State, county, municipality,or a public agency. Of these,

eighteen states and the District of Columbia do so by statute.

Aa. Code tit, 26§12-5 (1977); Ark. Stat. Ann. §34-705.1 (1962);

Cal. Evid. Code §894 (Deering 1966), see Michael B. v. Superior

Court, 86 Cal. App.3d 1006, 150 Cal.Rptr. 586 (1978 ; Haw. Rev.

Stat. §584-16 (1976); Idaho Code §7-1117 (1979); Ill. Rev. Stat.

ch.106 3/4 §3 (Supp. 1979); Kan. Stat. §23-132 (1974)(the fees

are subsequently taxed as costs); La. Rev. Stat. Ann. §9:397.1

(West Supp. 1980); Md. Ann.Code art.16 §66G (Supp. 1979); Mich.

Stat. Ann. §25.496 (c) (1974); N.H. Rev. Stat. Ann. §522.3

(1974); N.¥. Fam. Ct. Act §532 (McKinney Supp. 1976-79), see

People ex rel. Van Epps v. Dohert » 261 App. Div. 86, 24 N.Y.S.

2d 821 (1941); N.D. Cent. Code §14-17-15 (Supp. 1977); Or. Rev.

Stat. §109.256 (1979); 42 Pa. Cons. Stat. Ann. §6132 (Purdon

Supp. 1979); Tex. Fam. Code Ann. §13.03 (Vernon Supp. 1980)

(if the Texas Department of Human Resources “is a party of the

suit"); Utah Code Ann. §78-25-23 (1977); Wis. Stat. Ann. §52.36 |

(2) (West Supp. 1979-80)(the fees are subsequently taxed as costs);

16 D.C. Code §2343 (1973). The Supreme Courts of Colorado,

Massachusetts, and West Virginia have held payment by the State

to be constitutionally required, Franklin v. District Court, '

194 Colo. 189, 571 P.2a 1072 (1977), Commonwealth v. Possehl, ’

355 Mass. 575, 246 N.E.2d 667 (1969); Graves. v. Daugherty, No.

14517 (W.Va. May 13, 1980). Such tests are judicially charged to)

the State in New Jersey by the inherent power of the courts in

that State. Smith v. Walker, 138 N.J.Super. 187, 350 A.2d4 319

(1975). Such tests are charged to the State in Kentucky by

virtue of Ky. Op. Att'y. Gen. 65-391. In Indiana, it is the

ere

«Ja

that have considered the constitutionality of this practice,

7/ continued

policy of the Department of Public Welfare to pay for blood tests

where the Prosecuting attorney requests such a test or where the

parties stipulate that the test results will be admitted into

evidence, Letter from Thomas W. McKean, Director, Indiana

Child Support Division, Department of Public Welfare to IV-D

Deputy Prosecuting Attorneys (December 4, 1979) (unpublished

letter on file in the office of appellant's attorney).

In addition, the statutes of five States give the courts

of those states unlimited power to determine how and by whom

such costs shall be paid. Me. Rev. Stat. tit. 19§279 (Supp.

1979-80); Miss. Code Ann. §93-9-25 (1972); Nev. Rev. Stat. §56.

020 (1979); Ohio Rev. Code Ann. §3111.16 (Baldwin 1976); R.I.

Gen. Laws §15-8-13 (Supp. 1979). These Statutes clearly provide

local courts with the necessary authority to order that such

costs be paid by the state where one or both of the parties are

indigent. Ohio courts have not, however, been in agreement on

whether that state should be charged in cases involving indigent

defendants. Compare Walker v. Stokes, 45 Ohio App.2d 275, 344

N.E.2d 159 (1975) (holding such Payment to be constitutionally

required) with Bigsby v. Bates, 59 Ohio Misc. 51, 391 N.E.2d

1384 (C.P. 1978) (holding free blood tests not required in light

of Walker v. Stokes, 54 Ohio App.2d 119, 375 N.E.2d 1258 (1977)

(stripping state of its power to jail for nonsupport)),

Somewhat more ambiguously, the statutes of five mcre states

simply provide that local courts "may" in their discretion, order

such costs to be paid by the parties, 1980 Ga. Laws No.1331 §1

(to be codified as Ga. Code §74-311) (effective July 1, 1980);

Tenn. Code Ann, §24-716 (Supp. 1979); Va. Code §20-61.2 (Supp.

1979); Wash. Rev. Code Ann. §26.26.140 (Supp. 1980-81); Wyo.

Stat. §14-2-114 (1978). These Statutes appear to provide local

courts with at least some authority to charge such costs to the

State where one or both of the parties are indigent.

Although the relevant statutes in Minnesota are unclear,

courts in that state would, in all probability, order such

payment by virtue of Hepfel v. Bashaw, 279 N.W.2d 342 (Minn.

1979) (giving indigent putative fathers the right to a free

attorney). The laws of the remaining thirteen states (Alaska,

Arizona, Delaware, Florida, Iowa, Missouri, Montana, Nebraska,

New Mexico, Oklahoma, South Caroline. South Dakota, and Vermont)

are simply unclear,

moreover, those of the Appellate Session of the Superior Court

of Connecticut are, with a single exception involving an idio-

Syncratic Ohio law, the only ones upholding it. o/ Thus, the

8/ The Appellate Session of the Superior Court of Connecticut

has held that the state is not constitutionally required to

provide blood tests to indigent putative fathers in three

decisions: Ferro v. Morgan, 35 Conn. Supp. 679, 406 A.2d 873,

cert. denied, 177 Conn. 753, 399 A.2d 526 (1979), Knox v.

Siddell, No.734 (Conn. App. Sess. Super. Ct. March 16, 1979);

and the instant case. In contrast, courts have held that the

state is constitutionally required to provide such tests in

Franklin v. District Court, 194 Colo. 189, 571 P.2d 1072 (1977);

Commonwealth v. Possehl, 355 Mass. 575, 246 N.E.2d 667 (1969);

Lascaris v. Lardeo, 100 Misc.2d 220, 417 N.Y.S.2d 665 (Fam. Ct.

1979); Walker v. Stokes, 45 Ohio App. 2d 275, 344 N.E.2d 159

(1975); and Graves v. Daugherty, No. 14517 (W.Va. May 13, 1980).

See Madeline G. v. David R., 95 Misc. 2d 273, 407 N.Y.S.2d 414

(Fam. Ct. 1978)(giving indigent putative fathers the constitu-

tional right to counsel at no cost). Cf. M.v.S., 169 N.J. Super.

209, 404 A.2d 653 (1979); Lurry v. Mills, 152 N.J. Super. 127,

377 A.2d 804 (1977); Smith v. Walker, 138 N.J. Super. 187, 350

A.2d 319 (1975) (giving indigent putative fathers the right to a

blood test by virtue of the inherent powers of the New Jersey

Courts but drawing extensivelyon constitutional precedent and

reasoning. 2

a a

The single exception to this unbroken line of cases in other

states is Bigsby v. Bates, 59 Ohio Misc. 51, 391 N.E.2d 1384

(C.P. 1978), holding that free blood test are not required in

Ohio in light of Walker v. Stokes, 54 Ohio App. 2d 119, 375 N.E.

2d 1258 (1977)(stripping Ohio of its power to jail for non-

support). Because Bigsby is merely a memorandum of a single

trial judge its authority is limited even in Ohio. [It plainly

has no relevance to states such as Connecticut which retain

full power to jail for nonsupport. See Conn.Gen.Stat. §§46b-215,

53-304 (1979).

issue in the instant case does not merely involve a direct

conflict among state appellate courts, although the decision of

the Appellate Session below is in obvious conflict with such

cases as Franklin v. District Court, 194 Colo. 189, 571 P.2d

1072 (1977), and Commonwealth v. Possehl, 355 Mass. 575, 246

N.E.2d 667 (1969). Rather, from the objective evidence of the

country's present judgment concerning the provision of blood

tests to indigent defend-nts in paternity cases, see nn. 7 & @

Supra, this is an appeal from a decision that is well outside

the mainstream of American jurisprudence,

Appellant's principal claim is that, given the distinctive

nature of paternity proceedings and the remarkable effectiveness

with which modern blood tests conclusively exonerate falsely

accused defendants in such proceedings, the denial of a blood

test to a putative father solely because of his indigency is the

denial of a fundamental constitutional right. While this is a

preposition in which a clear majority of American courts and

legislatures concur, the question ‘ts a novel and substantial

one before this Court. It is of particular importance because

it stands at the juncture of two lines of constitutional pre-

cedent - one line of cases dealing with the rights of civil

plaintiffs, see Boddie v. Connecticut, 401 U.S. 371 (1971), and

the other with the rights of criminal defendants, see Griffin

ve. Illinois, 351 U.S. 12 (1956).

The constitutional rights of indigent civil defendants,

particularly in proceedings involving family rights and

potential future criminal sanctions, have not been directly

addressed by this Court. It was presumably to consider this

hitherto disregarded middle category that the Court granted

certiorari earlier this term in In re Subler, 100 S.Ct. 262

(1979), to consider the question, "Does dismissal of appeal as

«19>

bi drat, A

of right caused by denial of free transcript and court appointed

attorney for ‘ndigent mother seeking to appeal order permanently

terminating parental custody violate Due Process and Equal

Protection Clauses?" 48 U.S.L.W. 3316 (U.S. Nov. 6, 1979) (No.

79-5215). The Court, however, subsequently remanded Subler to

the Ohio Court of Appeals for further consideration in light of

State ex rel. Heller v. Miller, 61 Ohio St. 2d 6, 399 N.E.2d

66 (1980), see 100 S.Ct. 1903 (1980), leaving the fundamental

constitutional questions involved unresolved by this Court.

The instant case now presents these fundamental questions in a

particularly compelling context. When the merits of the

question presented are considered, the dramatic isolation of

Connecticut law becomes readily understandable.

This Court held in Boddie v. Connecticut, supra, 401 U.S.

at 377, "that due process requires, at a minimum, that absent

a countervailing state interest of overriding significance,

persons forced to settle their claims of right and duty through

the judicial process must be given a meaningful opportunity to

09/ in the use of

be heard." A recent scientific "revolution

blood group systems ‘tn cases of disputed paternity has rendered

the use of blood tests an absolutely essential component of "a

meaningful opportunity to be heard" in paternity proceedings.

Standard blood tests can now readily exclude,at a reascnable

cost, 91% of falsely accused putative fathers, in the case of

blacks, and 93% in the case of whites. Krause, Joint AMA-ABA

Guidelines: Present Status of Serological Testing in Problems

of Disputed Parentage, 10 Fam. L. Q. 247, 258 Table 3 (1976).

See Hepfel v. Bashaw, 279 N.W. 2d 342, 347 (Minn. 1979); State

ex rel, Ortloff v. Hanson, 277 N.W. 2d 205, 207 (Minn. 1979);

Lascaris v. Lardeo, 100 Misc, 2d 220, 222, 417 N.Y.S.2d 665, |

666 (1979).

9/ Terasaki, Resolution By HLA Testing Of 1000 Paternity Cases

Not Excluded By ABO Testing, 16 J. Fam. L. 543, 543 (1978). The

revolution involves the introduction of the HLA - standing for

human, leukocyte (white blood cell), antigen - system of testing. |

For a discussion of the basic principles of HLA testing see

Cramet.v. Morrison, 88 Cal. App. 3d 873, 153 Cal. Rptr. “B65 (1979);

Terasaki, supra. -1ll-

ee ee

Where a standardized, universally recognized laboratory test,

that conclusively establishes nonpaternity in more than

90% of all cases involving falsely accused defendants is readily

available, the denial of that test to indigent defendants is

the denial of "a meaningful opportunity to be heard." Without

it, the indigent defendant is placed in a Swearing contest with

the plaintiret?/ in which a judget/ must, often desperately, rely

on his subjective instincts, rather than hard scientific data, as

to which witness is telling the truth. "[A]bsent a countervailing

state interest of overriding significance," this denial of an

effective defense is a denial of due process as surely as was

the denial of access to divorce court in Boddie. Here, as in

Boddie, the State's only legitimate countervailing interest is

"resource allocation or cost recoupment." 401 U.S. at 382.

This justification was offered and rejected in Boddie. It is,

if anything, even less convincing here, where, as discussed

infra, the State is aggressively using the judicial system to

gain monetary judgments from indigent defendants. This justifi-

?

cation should be rejected.

This basic constitutional requirement is unaffected by

United States v. Kras, 409 U.S. 434 (1973) (refusing to waive

filing fees to an indigent petitioner in bankruptcy), and

Ortwein v. Schwab, 410 U.S. 656 (1973) (refusing to waive filing

10/ In Connecticut, moreover, this Swearing contest is one

that is heavily biased in favor of the plaintiff. See the

discussion of Connecticut paternity law at pp.l6-l7,infra.

11/ Not, in Connecticut, a jury. See n.4 supra,

-12=

fees to an indigent wishing to appeal a denial of welfare bene-

fits), for a number of reasons. These reasons involve both the

obvious fact that the petitioners in those actions were plaintiffs,

who have not been forced into the judicial process to resolve

their difficulties, and certain distinctive features of paternity

proceedings. These factors are enumerated below. Taken together,

they implicate a variety of constitutional rights that are at

least as fundamental as those involved in Boddie and are svoninaalll

even more basic to our constitutional system.

First. This action involves the denial of an essential

| item of evidence tu a defendant. The appellant here did not

choose to file a legal action as one of several available paths

to relief. Rather, he was summoned to court against his will by

the appellee, Boddie turned, in large part, on the fact that the

plaintiffs in that case were compelled to go to court to resolve

their difficulties. See United States v. Kras, supra, 409 U.S,

at 445, That factor is surely present here. In fact, in the

respect that his presence in court is wholly involuntary,

appellant stands in exactly the same position as a defendant in

a criminal action,

Second. In Connecticut, as in most States, a losing defen-

dant in a paternity proceeding becomes subject to a number of

potential criminal and quasi-criminal sanctions not present in

the ordinary civil case, -2/

The appellant here has, of course,

already been found liable for thousands of dollars in support

payments and is obligated to provide support for the child in

question for the duration of her minority. Conn.Gen.Stat. §46b-

215 (a) (1979). Should he subsequently fail to comply with any

12/ The perhaps unparalleled absence of such sanctions in Ohio

was the basis of Bigsby v. Bates, discussed in n.8 supra,

=13<

Support order he will be subject to imprisonment for contempt

of court, Id. He will further be subject to criminal prosecu-

tion and imprisonment for nonsupport. Conn.Gen.Stat, §53-304

(1979). Thus, his liberty, as well as Property, interests are

plainly implicated by the paternity proceeding that is the subject,

of this appeal, ?>/

Third. Although the instant case is naninally a private § -

affair, it is in fact a case in which the full power of the

State has been brought against an indigent defendant in a judi-

cial proceeding. The State, of course, lurks in the background

of every paternity Proceeding in Connecticut by virute of the

potential criminal and contempt sanctions discussed Supra. But, |

in the instant case, the State is much more directly involved,

Because the appellee is a recipient of public assistance, she

a

was compelled to disclose the name of the putative father of

her child to the Connecticut Department of Income Maintenance.

Conn.Gen.Stat. §46b-169 (1979). That state agency then referred

the instant case to her attorney for prosecution (R.29). The

State not only paid appellee's attorney to prosecute the segnhiauill:

but is the actual recipient of the several thousand dollars of

Support money awarded by the trial court (R.38-39) ,24/ —

as a practical matter, the appellant in this case was necessarily

rendered indigent by his incarceration by the State. The State

was thus involved in the practical aspects of the litigation

below in almost every conceivable way.

As this Court has stated in a somewhat different context,

"Conduct that is formally 'private’ may become so entwined with

13/ Although the Supreme Court of Connecticut has chracterized |

paternity proceedings as "civil" rather than "criminal" in

Robertson v. Apuzzo, n.4 Supra, such an adroit act of pigeon-

holing in no way erases either the existence of the criminal

and quasi-criminal sanctions discussed in the text or the fact

that these sanctions are not involved in the ordinary civil case.

It is, of course, implicit in our entire argument that paternity

proceedings are demonstrably different from garden-variety |

civil litigation and that the civil/criminal distinction is

therefore hardly talismanic.

14/ This procedure is required by 42 U.S.C. §654(4). See 45 |

C.F.R.§232.12 (1979).

aRé<

governmental policies or so impregnated with a governmental

chracter as to become subject to the constitutional limitations

placed upon state action. Evans v. Newton, 382 U.S. 296, 299

(1966). See Burton v. Wilmington Parking Authority, 365 U.S.

715 (1961). Such "state action" permeated the entire proceeding

in the instant case. Because of this undeniable fact, the legal

actions of the appellee, ostensibly a private citizen, were

essentially the actions of the State for Purposes of the

Fourteenth Amendment .}>/

The three factors of involuntariness, potential criminal

Sanctions, and state action, taken together, strongly indicate

that a celebrated line of this Court's decisions, involving the

rights of indigent criminal defendants, is applicable to the

instant case. In Griffin v. Illinois, 351 U.S. 12 (1956), this

Court held that the Fourteenth Amendment compels a State to

furnish a state-paid transcript of his criminal trial to an

indigent criminal defendant on appeal, Noting the disparity

between the ability of indigent and non-indigent defendants to

obtain adequate appellate review under then-existing practice,

a plurality of the Court decided the case on the broad ground

that "There can be no equal justice where the kind of trial a

man gets depends on the amount of money he has." 351 U.S. at

19 (plurality opinion of Mr. Justice Black). Following

Griffin, the Court required the provision of appointed counsel

on an appeal as of right from a criminal conviction in Douglas

v. California, 372 U.S. 353 (1963). The principle of these

cases has been extended to matters needed for pretrial prepara-

tion, see Britt v. North Carolina, 404 U.S. 226 (1971);

Roberts v. LaVallee, 389 uU.s. 40 (1967), and, of particular

15/ See Madeline G. v. David R., 95 Misc. 2d 273, 275-76, 407

414, 416 (Fam.Ct. 1978).

-15-

relevance to this appeal, even to a case involving a mere

$250 fine, see Mayer v, City of Chicago , 404 U.S. 189 (1971).

While criminal defendants stand on a particularly exalted

constitutional plane for obvious reasons, the underlying prin-

ciples involved in the Griffin-Roberts-Britt-Mayer line of cases

are plainly relevant to the instant case. Here, as in those

cases, the full power of the State has been brought against an

indigent defendant in a judicial proceeding. And here, as in

those cases, the defendant, because of his indigence, has been

deprived of a necessary means of presenting his case. Under

these circumstances, "The balance of forces between the accused

|

and his accuser," Wardius v. Oregon, 412 U.S. 470, 474 (1973), |

is so disproportionate as to smack of fundamental unfairness. |

In addition to the three factors of involuntariness, |

potential criminal sanctions, and state action that analogize

the instant case ee Griffin and its prozeny, certain other

factors exist that further distinguish the instant case from

United States v. Kras, Supra, and Ortwein v. Schwab, supra.

These factors involve the distinctive nature of paternity

proceedings. Considered in conjunction with the forgoing

factors, they leave no doubt that Conn.Gen.Stat. §46b-168 (1979),

as applied in this case, is inconsistent with the dictates !

of the Fourteenth Amendment.

Fourth. In Connecticut, a defendant in a pater-

nity proceeding must bear a unique evidentiary burden. Since

the enactment of Connecticut's original Bastardy statute in

1672,plaintiffs and defendants in paternity actions have been

placed in dramatically unequal positions. Under the original

statute, “the man charged by the Woman to be the Father, she

holding constant in it" was deemed to "be the reputed Father"

and, ipso facto, "liable to the charge of maintenance...not-

»16/

withstanding his denyal. Despite several intervening statu-

|

|

16/ See The Book of the General Laws for the People within the

Jurisdiction of Connecticut 6 (1673).

my me

Le eet —

|

tory changes, the Connecticut Supreme Court held in Booth v.

Hart, 47 Conn. 480, 485 (1876), that once the plaintiff ina

paternity proceeding has established a prima facie case, "the

burden of proof then changed to the defendant, and he was

required to prove himself innocent of the accusation by other

evidence than his own." (Emphasis added.) This rule was

reaffirmed in Mosher v,. Bennett, 108 Conn. 671, 674, 144 A.

297, 298 (1929). Under this rule, a defenant's own testimony,

regardless of his credibility, is legally insufficient to out-

weigh the plaintiff's testimony in the pans of justice. See

Kelsaw v. Green, 6 Conn. Cir. Ct. 516, 276 A.2d 909 (App. Div.

Cir. Ct. 1971). Given this evidentiary requirement, a blood

grouping test is even more important to the defendant than it

would otherwise be, and the balance of forces ina proceeding

against an indigent becomes egregiously unfair.

Fifth. Paternity proceedings by their nature involve the

family rights of unwed father, a right that this court is in-

creasingly recognizing as Significance. See Caban v. Mohammed,

441 U.S. 380 (1979); Stanley v. Illinois, 405 U.S. 645 (1972).

This case, to be sure, is in many ways the converse of Caban

and Stanley, The fathers in those cases were attempting to

assert their parental rights, while the appellant here denies

that he is, in fact, a parent. But the fundamental rights of

parentage are nevertheless involved, for as a result of this

paternity .actton both appellant and the child in question have

been saddled with a parent-child relationship. The State's

only interest in initiating this proceeding was, of course,

financial, but a binding determination of parentage ineluctably

carries with it a host of legal, moral, and emotional conse-

quences that perhaps cannot even be forseen at the present time.

Under these circumstances, it is in the interest of all parties

and society as well that, if a parent-child relationship exists,

its existence be determined accurately. To deny a defendant

an accurate determination of his paternity solely because of

his poverty "needlessly risks running roughshod over the

important interests of both parent and child." Stanley vy.

Illinois, supra, 405 U.S. at 657. Such a denial is inconsistent

with the fundamental requirements of the Fourteeuth Amendment,

Finally. Given the factors discussed Supra, the ultimate

result of Connecticut's blood test law is to create a particu-

larly egregious dual System of justice that has a substantial,

adverse, and recurring impact on a Significant number of defen-

'dants in paternity proceedings, =’/ Because of the extraordinary

frequency with which modern blood grouping tests conclusively

exclude falsely accused putative fathers there is, needless to

Say, no question that nonindigent defendants who dispute their

paternity will utilize these tests. In return for the payment

of a modest laboratory fee, a falsely accused nonindigent

defendant is overwhelmingly likely to obtain a swift, scientific,

and absolutely unimpeachable exoneration. The indigent

defendant, on the other hand is placed in a Swearing contest

with the plaintiff in which the pans of justice are loaded

against him. In such a contest even the fairest and most

conscientious judge can rarely claim that he has rendered a

decision not open to doubt. There are, consequently, two drama-

tically different Systems of justice: a reliable one for

defendants with assets and an unreliable one for the poor. The

observation of Mr. Justice Frankfurter in his concurring

opinion in Griffin vy, Illinois, supra, 351 U.S. at 23-24, is

particularly appropriate to this state of affairs:

/

17/ Although it may seem anomalous that scarce legal resources

are regularly exmployed to institute suits for money judgments

against indigent defendants, this result could hardly be other-

wise in a state which is compelled to initiate paternity actions

in behalf of mothers receiving public assistance. See n.14,

Supra ,and accompanying text. jfF¢ is unlikely that such recipients

will have intimately associated with people of means,

|

|

|

|

|

{

|

|

To sanction such a ruthless consequence, inevitably

resulting from a money hurdle erected by a State, would

justify a latter-day Anatole France to add one more item

to his ironic comments on the "majestic: equality" of the

law. "The law, in its majestic equality, forbids the rich

as well as the poor to sleep under bridges, to beg in the

streets, and to steal bread."

The State is not free to produce such a squalid

discrimination,

CONCLUSION

For these reasons, the Court should note probable juris-

diction of this appeal.

Respectfully submitted,

Pl me C. Blue

Legal Assistance to Prisoners

340 Capitol Avenue

Hartford, Connecticut 06106

(203) 566-2030

Counsel for Appellant

June 12, 1980

A

APPENDIX

APPELLATE SESSION OF THE SUPERIOR COURT

December, 1979, at Hartford

A.S. 806

GLORIA STREATER v. WALTER LITTLE

Argued: December 19, 1979 Decided: February 29, 198

Paternity action brought to the Court of Common Pleas in

New Haven County where the court, Melville, J., granted the defen-

dant's motion for a blood Srouping test but ordered the cost of such

test not to be paid by the state; the court, Schaller, J., adjudged

the defendant to be the father of the plaintiff's minor child and

the defendant appeals. No error.

Jon C. Blue, for the appellant (defendant).

Stephen J. McGovern, assistant attorney general, for the appellee

(state).

PER CURIAM. This case presents for the third time before this

court the question of whether in a paternity proceeding General Statutes

§ 46b-168, which makes the costs of blood Srouping tests chargeable

against the party moving for such tests, violates the due Process and

equal protection rights of an indigent defendant in such a proceeding.

In Ferro v. Morgan, 35 Conn. Sup. 689, cert. denied, 177 Conn. 753,

399 A.2d 526 (1979), we addressed and Specifically rejected these con-

stitutional claims. In Knox v. Siddell, Conn. Sup. (App. Sess.

No.734, Decided March 16, 1979), we again considered these claims

la

and as an alternative ground ruled that our decision was controlled

by Ferro v. Morgan, supra. No new arguments or authorities have been

presented to us in this case which would persuade us to come to a

different result.

There is no error.

PARSKEY, D. SHEA and BIELUCH, Js., Participated in this decision.

Deke =) \adarneact —_ + 2 Mn > as ; \\ 8O

Con rrk, Nott eeu _ aoles oN dW, IAG

eae CSinve -

Cupp i Cou

2a

eage 2o

WWOte ase eweUS & anda si

_— rr me wecy at; ao's's

- Pabitent Homes, Inc. v. Froyp Russet Et AL.

The plaintiff’s petition for certification for appeal

from the Appellate Session of the Superior Court is

“ranted by the court.

Stephen C. Gallagher, in support of the petition.

David P. Bali, in opposition.

Decided Apri! 1, 1980

180 Conn. 756

Kermit Apams, TRUSTEE, ET AL. v. PLANNING

Comission oF THE Town or BETHLEHEM

The defendant’s petition for certification for

appeal from the Superior Court in the judicial dis-

trict of Waterbury is denied by the court.

David B. Losee, in support of the petition.

James R. Healey, in opposition.

Decided April 1, 1980

Wittiam Cises et au. v. Stare Trarric Commissiox

ET AL.

The plaintiffs’ petition for certification for appeal

from the Superior Court in the judicial district of

New London is denied by the court.

Timothy D. Bates and Myron B. Bell, in support

of the petition.

Frank Rogers, assistant attorney general, and

Elizabeth R. Collins, in opposition.

Decided April 1, 1980

Guoria Strrearer v. Water LIittie

The defendant’s petition for certification for

appeal from the Appellate Session of the Superior

Court is denied by the court.

Jon C. Blue, in support of the petition.

Stephen J. McGovern, assistant attorney general,

in Opposition.

Decided April 1, 1980

180 Conn. 757

Curistixe S. Kvenyn v. Bripcerort Hospitac Et AL.

The defendants’ petition for certification for

appeal from the Superior Court in the judicial dis-

trict of Fairfield at Bridgeport is denied by the

court.

Paul E. Pollock, in support of the petition.

frederick J. Martin, in opposition.

Decided April 2, 1980

James E. Smiru v. Zontnc Boarp or APPEALS OF THE

City or Mivrorp Er at.

The petition of New Haven Bird Club, Inc., for

certification for appeal from the Superior Court in

the judicial district of Ansonia-Milford is denied by

the court.

Daniel Millstone, in support of the petition.

Decided April 2, 1980

State or Connecticut v. NicHotas Romano

The defendant’s petition for cértification for

appeal from the Appellate Session of the Superior

Court is denied by the court.

Nicholas Romano, pro se, in support of the peti-

tion.

Decided April 15, 1980

Lawrence Matto ert av. v. Fraxx R. Carpasst Et AL.

The defendants’ petition for certification for

appeal from the Appellate Session of the Superior

Court is denied by the court.

Robert W’. Lotty, in support of the petition.

Decided April 15, 1980

180 Conn. 758

BetHEL AssemBLy or Gop, Inc. v. Zonryc Boarp or

APPEALS OF THE Town oF TRUMBULL

The petition of William W. Joslin et al. for cer-

tification for appeal from the Superior Court in the

judicial district of Fairfield at Bridgeport is denied

by the court.

Harold Sobel, in support of the petition.

Gary W. Nicholson, in opposition.

Decided April 29, 1980

Hersert A. JOHNSON ET AL. V. PLANNING AND ZONING

CoMMISSION OF THE TowN OF TRUMBULL ET AL.

The p'aintiffs’ petition for certification for appeal

from the Superior Court in the judicial district of

Fairfield at Bridgeport is denied by the court.

Raymond W’. Beckwith, in support of the petition.

Stewart I. Edelstein and Burton S. Yaffe, in oppo-

sition.

Decided April 29, 1980