# Jurisdictional Statement — Little v. Streater > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0010%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1981 - **Citation:** 452 U.S. 1 ## Text ; . 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 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) « * * . . . 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. 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/ 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/ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0010%3A1. Public record. Not legal advice.