Appellants Brief — Little v. Streater

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| MICHAEL RODAK, JR., |

No. 79-6779

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

WALTER LITTLE,

Appellant,

GLORIA STREATER,

Appellee.

ON APPEAL FROM THE APPELLATE SESSION

OF THE SUPERIOR COURT OF CONNECTICUT

BRIEF FOR APPELLANT

JON C. BLUE

Legal Assistance to Prisoners

340 Capitol Avenue

Hartford, Connecticut 06106

(203) 566-2030

Court-appointed Counsel for Appellant

C e CLB PUBLISHERS « LAW PRINTING CO. e@ (202) 393 0625

(i)

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 Amend-

ment to the Constitution of the United States when applied to

deny the use of blood grouping tests to the defendant solely

because of his indigency?

PARTIES TO THE PROCEEDINGS

(1) Walter Little, the appellant, was the defendant in the

proceedings below.

(2) Gloria Streater, the appellee, was the plaintiff in the

proceedings below.

(3) Carl R. Ajello, the Attorney General of Connecticut,

is a party to this proceeding pursuant to Conn.Gen.Stat.

§ 46b-160 (1979).

(ii)

TABLE OF CONTENTS

Page

RKIVEOTION PRESENTED. .............cccccccccccce, i

PARTIES TO THE PROCEEDING .................... i

os > TS a a ii

ye ls iii

TT NN oss vs rcncuvavceceavccueetawacs ]

RE ENN a ae oD 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

ede is pec coue, hanes 2

STATEMENT OF THE CASE.................0000.5.. 3

HOW THE CONSTITUTIONAL QUESTION WAS

RAISED AND DECIDED BELOW .................. 6

SUMMARY OF ARGUMENT........................., 7

EEE SEN Re ee 8

I. THE DENIAL OF BLOOD GROUPING

TESTS TO A DEFENDANT IN A PA-

TERNITY PROCEEDING SOLELY BE-

CAUSE OF HIS INDIGENCY VIOLATES

THE DUE PROCESS CLAUSE ................. 8

A. The unique importance of blood grouping

tests in paternity litigation ..................... 9

B. The requirements of the Due Process

ECU ls ie enue uch cy. ul, 16

II. THE DENIAL OF BLOOD GROUPING

TESTS TO A DEFENDANT IN A PA-

TERNTY PROCEEDING SOLELY BE-

CAUSE OF HIS INDIGENCY DENIES

HIM THE EQUAL PROTECTION OF

as Fascia fas EUS OeL ec bk yeh 39

Oe 6) ca cs Nuc ek owen ovaschecilekues 44

(iii)

TABLE OF AUTHORITIES

Cases Page

Alderman v. United States,

Co ee). es es Terre eee 21

B. v. Superior Court,

86 Cal. App. 3d 1006, 150 Cal.Rptr. 586 (1978)....... 16

Baldwin v. Hale,

CRUG 1 We.) aS ELGG oi bade ees es 19

Beuschel v. Manowitz,

151 Misc. 899, 271 N.Y.S. 277, rev'd per curiam,

241 App. Div. 888, 272 N.Y.S. 165, motion for leave

to appeal denied, 265 N.Y. 509, 193 N.E. 295

(eR Pernt r Te Tterr et errr ree eT re Te 1]

Bigsby v. Bates,

59 Ohio Misc. 51, 391 N.E.2d 1384 (C.P. 1978)....17,18

Boddie v. Connecticut,

GBA UG, 37% CARTE) i. 0 tk cece dscie ve cent 19,20,25,39

Booth v. Hart,

Oe SPT IR Ss on divac bese nhs uasaneveeeesaen 34

Boswell’s Lessee v. Otis,

50 U.S. (9 How.) 336 (1850) 2... ccc ccceccevccsccess 19

Bounds v. Smith,

oR Se oe ne reer. ea ee ie 30

Brady v. Maryland,

pee gh e RS: | ee eer rrr rte ree 32

Breithaupt v. Abram,

pe BRE cD. +) ater Terre iyo 22

Britt v. North Carolina,

AF Bs a dink ens ex et een taepaaeee ka) 31

Burton v. Wilmington Parking Authority

Se MI FIED at xks A hacen veces cwnce a eeee ee 28,36

Caban v. Mohammed,

Se Bias PTO cols ak eos soto censeatkeunknay’s 13,38

(iv)

Civil Rights Cases,

a | ee cae 28

Cochran v. Kansas,

RW MP PO PIPED sok ccc once pale ccctenvcsceeclees. 29

Commissioners of Almshouse v. Whistelo,

3 Wheeler’s Crim. Cas. 194 (N.Y.Gen.Sess. 1808) ..... 10

Commonwealth v. Possehl,

355 Mass. 575, 246 N.E. 2d 667 SREP caVickvscdos 17,18

Commonwealth v. Zammarelli,

SFM MM, MOO ERM OON boss vc cae vi cccvaevecoccanceil 10

Cortese v. Cortese,

10 N.J. Super. 152, 76 A.2d 717 4) re 12,13,22

Cramer v. Morrison,

88 Cal. App. 3d 873 153 Cal. Rptr. 865 ti. , ae 12

Doe v. Maher,

414 F.Supp. 1368 (D.Conn. 1976), vacated,

ee De: ss Sr 28

Domonkos ex rel. Herman vy. Rotundo,

4 Conn. Supp. 29 (C.P. 1936)...........ccccccccccce, 11

Douglas v. California,

PMP PAN DUPRE ooh in v0 ove ods oe bcdineccdeccn, 31

Estelle v. Gamble,

cat Ls |) A a i eee ne ee 30

Evans v. Newton,

POO Wis BE EPID oo oes Sovic dn none oobi ccceninien, 28

Ferro v. Morgan,

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

177 Conn. 753, 399 A.2d 526 . SPR eal ican 6,7,12

Ford v. Ford,

191 Neb. 548, 216 N.W. 2d 176 CEN. o's sia snk hows 18,38

Ford vy. Ford,

Doc. 655, No. 275 (Dist. Ct. Douglas Cty. Neb.

Se NID yas ach cect ne ee 18

(v)

Franklin v. District Court,

194 Colo. 189, 571 P.2d 1072 (1977)............ 17,18,27

G. v. R.,

95 Misc. 2d 273, 407 N.Y.S.2d 414 (Fam. Ct. 1978)... 18

Gardner v. California,

I I i edo one Pevn abe dive ed Coceonys bas 31

Gomez v. Perez,

OR OME 2 5c sie es aves eksawadabiaw anes 13,37

Green v. United States,

ee NO iis ioc cnet cadet aveneavedeedes os 32

Griffin v. Illinois, a

Re ee ee ae ne ee " passim

Harper v. Virginia Board of Elections,

ES Ll ec ahvanbaendeead eaten ik 40

Hepfe! v. Bashaw,

Bee ee ae ee CR, PTD) 6 ccs cece ccesewannss 12

Hovey v. Elliott,

EL ais a oe Gna gd bl alec ie ecw ae 19

Ex parte Hull,

aE IED oo avons tipeeo ila Ve wdacbewawceune 29

Johnson vy. Avery,

Fee Wis Se (IGG). oc ce scvevcces by SaiRiiva ee sbegil wa Abs 30

Kelsaw v. Green,

6 Conn. Cir. Ct. 516, 276 A.2d 909

Se Se A Es WIPE a nce ccevcde vinescswvecancdes 35

Klapprott v. United States,

a cine ek sewed neken caseentes 29

Kovacs v. Cooper,

Be ST FD 5 ocieoc's vs kn eba5 0 6seeee ada bs vas 43

Lalli v. Lalli,

EE sos kin wae bdbiusdusceudwudens acs 13

Lane v. Brown,

ee CE ook ove iuunaccdnecenusssiocebanst 31

—

(vi)

Lascaris v. Lardeo,

100 Misc. 2d 220, 417 N.Y.S. 2d 665 (1979)....... 12,

Long v. District Court,

OE Ey iky.o iho kc cuca oc Obie cwcnedoes

Lurry v. Mills,

152 N.J. Super. 127, 377 A.2d 804 (1977) ............

M. ex rel. T. v. S.,

169 N.J. Super. 209, 404 A.2d 653 (1979) ............

Maher v. Doe,

We I odie oon see due chee bonne.

Mayer v. City of Chicago,

Meyer v. Nebraska,

ee ee

Michigan v. Tucker,

PEF WM IOP ooo ss oso vibsesesccocnceeccecs

Mosher v. Bennett,

108 Conn. 671, 144 A, 297 |. Bit Me eS eae

Mullane v. Central Hanover Bank & Trust Co.

OM NY MEIN oon ond v tans descccvchacsnneenin

Nations v. Johnson,

65 U.S. (24 How.) 195 RENE ed ase Nor em ia

Ortwein v. Schwab,

WM MIP TOD occ ricccvnsecccssecesecs 25,42,

Parham v. Hughes,

People ex rel. Van Epps v. Doherty,

261 App. Div. 86, 24 N.Y.S. 2d 821 Sareea

Pierce v. Society of Sisters,

WOU Ws I ok is kb oss sens le Cheneceevecnet

Rakas v. Illinois,

I TD on eiob eS vectbewoccececinn

Reynolds v. Kimmons,

PN PO PR oie cece c on one

( vii)

Roberts v. LaVallee,

pe A were een reer eee ae 31

Robertson v. Apuzzo,

170 Conn. 367, 365 A.2d 824, cert. denied, 429

Se TIE acca Ses 8 5b cd hee kan a bRRR ER SEN 5,26

Roe v. Norton,

Se A EE URES ois vcr scevasesSGanae wn eheeakwe 28

Ross v. Moffitt, P

ee eT CRONE oe on kta hed cbuscer casa tou eeeeee 25

San Antonio Independent School District v. Rodriguez,

ee Be Maas ov kk cewek bP ePRR Kp daaw eens Ries 41

Schmerber v. California,

eS ee US i vcceuducsss cov bieewne sneha ne 22

Shelley v. Kraemer,

eS, Ss 5 5 oy nce PRN ORE eee poner ees 27

Smith v. Bennett,

ee i ony sc Vie eRe a hk eee hE eS 26,31

Smith v. Walker,

138 N.J. Super. 187, 350 A.2d 319 (1975) ......... 17,18

Snyder v. Massachusetts,

hs cy ru eres ee aeane va es 33

Stanley v. Illinois,

ee OPO os hk nbiveess dee pau kas 13,36,38,43

State v. Damm,

64 S.D. 309, 266 N.W. 667 (1936)................ 11,22

State v. Fowler,

BLT Deda Sees BUD Bale Bee LIFT) bib hs cto ne neiis 12

State v. Sebastian,

Si Comm. 1,69 A. 1056. C1906). oo cece ncicctvccnsnss 11,34

State ex rel. Graves v. Daugherty,

266 S.E.2d 142 (W.Va. 1980)........ccccscvees 17,18,27

State ex rel. Ortloff v. Hanson,

STE CO. ae Be CR TITEP: acc nivewisecheadvesas 12

( viii)

Stone v. Powell,

GOO Ui MGS (ERIE) oo 5 nkcn vk sca vs ices

Streater v. Little, 21,22

No. 806 (App.Sess.Conn. Super. Ct. Feb. 29, 1980),

cert. denied, 180 Conn. 756, 414 A.2d 199 (1980) ...... l

Town of Chaplin v. Hartshorne,

Trimble v. Gordon,

GIG ID. TOR CANE as 66 6x 008d ieee 13

Trustees of Dartmouth College v. Woodward,

57 Was CO Wee Fe Caine c ccc eecceavienee 19

Union Pacific Railway v. Botsford,

RGN Rice EOUEN » ie 00bgcn Seen eckiees eee 21,22

United States v. Ash,

US Wi PO CNT ON. «uc is 00 04ndanneedebenan eee 33

United States v. Ceccolini,

RF Sr Se CEPR inns acs vee vkiun wens ake ee Cee 21

United States v. Kras,

Pe i EOD ono v's nas bev cw meen eeeenaes 25,29,42

United States v. Payner,

LG DA SOee CIOOOD occu sciebsscunsnelcceesdunee 21

Walker v. Stokes,

45 Ohio App. 2d 275, 344 N.E.2d 159 (1975)......... 17

Walker v. Stokes,

54 Ohio App. 2d 119, 375 N.E. 2d 1258 (1977) .... 18,27

Wardius v. Oregon,

Oe Se TS 00k Cheb &h apd cee Ca 33

Williams v. Illinois,

Be We Be I 6 on kkk evs cocwwed abeeceneeee 39

Windsor v. McVeigh,

Bs OE oa cides bcd ththecesaauti ule 19

In re Winship,

SY Py PO CATED Gah nak ot cds bac ba ek baned eee 22

(ix)

CONSTITUTIONAL PROVISIONS

i ME EW occ ticcstacdbccevetsvesvevesvds 16

RE, MUON, AAV, Bocce cccssccccvcvvvseces passim

STATUTES

Ree moe tt, 26 B12-5 (1977)... ccccecsssscsvcderess 16

Ark. Stat. Ann. §34-705.1 (1962) ......... ee eeeeeeee oe ee

Cal. Evid. Code § 894 (Deering 1966)..........-.-.eeeees 16

Conn.Gen.Stat. $17-1b (1979) 0.0... .cccccccsvcvevcvcses 3

Conn.Gen.Stat. § 46b-160 (1979) ....... ccc eee ee ee ee eee i

Conn.Gen.Stat. § 46b-168 (1979)..........655 i,2,3,6,7,40,44

Conn.Gen.Stat. § 46b-169 (1979) ....... cece eee eee e eens a

Conn.Gen.Stat. §46b-215 (1979) ....... cece eee eeeees 5,26

Conna.Gen.Stat. $52-258 (1979) ......ccccscccccccvcsvoes 5

Conn.Gen.Stat. $ 53-304 (1979) .......ccccccccccssecs 18,26

See Come PUD. Acts CRAG... ccc cccccrcccccveccess 34,35

Se ee Pee MOOS PEO, 459... cccvcccvdecvasncsves 28

Ga. Code §74-311 (Supp. 1980) ..........cceeceeeeeees 17

Haw.Rev.Stat. §584-16 (1976) ........ cee cece eee eeeeees 16

Idaho Code §7-1117 (1979) ....cccccvcscccvvvcveseeves 16

Ill.Rev.Stat. ch.106 3/4 §3 (Supp. 1980-81) ............. 16

Meme eet. ©23-132 (1974) 0... cvvcwcccvcccscvvvencs 16,23

_ La.Rev.Stat.Ann. §9:397.1 (West.Supp. 1980)........... 16

Me./Rev.Stat. tit. 19 §279 (Supp. 1980-81).............. 17

Md. Ann. Code art. 16 §66G (Supp. 1980).............. 16

ee eee, mm, BZ5:496 (19TS) oi ccccecccadsccesvoce 16

1980 Minn.Sess.Law.Serv. ch.589 § 19 (West)

(to be codified as Minn.Stat. §257.69) ............005. 16

Miss.Code Ann. §93-9-25 (1972)... ... cece eee e cece 17

Nev. Rev.Stat. $56.020 (1979)... .cvcccccresccccvsccces 17

N.H.Rev.Stat.Ann. § 522.3 (1974) ....... cee eeeee ee eens 16

(x)

N.Y.Fam.Ct.Act §532 (McKinney Supp. 1976-79) ....... 16

ee | ee ee ae 1]

N.C.Gen.Stat. §8-50.1 (Supp. 1979)............0.cc0 eee 16

N.D. Cent. Code § 14-17-15 (Supp. 1977) ............... 16

Ohio Rev. Code Ann. § 3111.16 (Baldwin 1976).......... 17

Ov. Rev, Bint 6209. 256. C107 EP ocd te ca ciclo ee kk 16

42 Pa. Cons, Stat. Ann. §6132 (Purdon Supp. 1980)...... 16

R.I. Gen. Laws § 15-8-13 (Supp. 1980)...............05. 17

ck | | RNAI gi ag ee a 28

Tenn.Code Ann. § 24-716 (Supp. 1979) .............000. 17

Tex.Fam.Code Ann. § 13.03 (Vernon Supp. 1980)........ 16

BP Mas eT MMOD oe ois ok oo 55 dbbc vice cede: 2

oR a er 28,37

Utah Code Ann. § 78-25-23 (1977) .. 00... cece cece acces 16

Va. Code §20-61.2 (Supp: 1980) ..........cccccccccsccs 17

Wash.Rev.Code Ann. § 26.26.140 (Supp. 1980-81)....... 17

Wis.Stat.Ann. §52.36 (West Supp. 1980-81).......... 17,23

bo eS oe 17

OTHER AUTHORITIES

Arther & Reid, Utilizing the Lie Detector Technique to

Determine the Truth in Disputed Paternity Cases, 45

J. Crim.L., Crimonology & Police Sci. 213 (1954)...... 15

The Book of the General Laws for the People Within the

Jurisdiction of Connecticut (1673) ...........6. ceccuee 33

GD CPM Gas ehe IPT ons vc cccccceccccccccccvecces 28

120 Cong.Rec. 40321 (1974). .......cccccccccccccccccce 37

H.R. 17045, 93d Cong., 2d Sess. (1974)...... bekecrsueas 37

(xi)

H.R. Rep. No. 93-1643, 93d Cong., 2d Sess. (1974),

reprinted in [1974] U.S. Code Cong. & Ad.

I Rndarsarie Varin k aad s eeu san hoicare acd eve 37

Interview with Herbert Silver, M.D., Director of Blood

Bank and Immunohematology, Hartford Hospital, in Hartford,

Connectiont (October 27, 1960) oo. c ic iecccsccdctecess 4

ee NO EE, ss i vic 64 his os b bende Melon a kbce es 17

Krause, Joint AMA-ABA Guidelines: Present Status

of Serological Testing in Problems of Disputed Parentage,

Pe, ED CUTE occ decays cdma eo 0 cae eke 12

Larson, Blood Test Exclusion Procedures in Paternity

Litigation: The Uniform Acts and Beyond, 13 J.Fam.L. 713

| SEE ORR ere BG Sree Pe LE tT AE at On EO OE I Me SCR 13

L. Lattes, Individuality of the Blood in Biology and in

Clinical and Forensic Medicine, (rev. ed. 1932)........ 10

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

MLE ME POPE Slee, ERE EC ark ie ep Ora 17

McCormick’s Law of Evidence (2d ed. 1972)............. 12

Oaks, Ethics, Morality, and Professional Responsibility,

ESTE dees Ba BON OPE CAFE) hve desc vnndacscceccve 22

229 Parl. Deb. H.L. (5th Ser.) 1090 (1971) (remarks

rs sd tus wealbe'e Vein bis 15

S. Schatkin, Disputed Paternity Proceedings

SOs MS BRM Cvrecass the oy eae Veh ekcaus tee kt 10,11,14

Schiff, The Medico Legal Significance of Blood Groups,

BET See EM Fal CAGES) ow cic cicdiaccoscsice GQ. 10,14

S. Rep. No. 93-1356, 93d Cong., 2d Sess. (1974),

reprinted in |1974] U.S. Code Cong. & Ad. News 8133. 37

P. Speiser & F. Smekal, Karl Landsteiner (1975)......... 10

(xii)

Sussman, Blood Grouping Tests, 40 Am.J. Clinical

Pubeinty SE GR esc ca ciscibi vcs sh.

Terasaki, Resolution by HLA Testing of 1000 Paternity

Cases Not Excluded by ABO Testing, 16 J.Fam.L.

543 (1978)

A. Weiner, Blood Groups and Transfusion (3d ed. 194)...

Te ne Oe MOE Bi 810) te Win ae ee eke ee iia ee

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1980

No. 79-6779

WALTER LITTLE,

Appellant,

Vv.

GLORIA STREATER,

Appellee.

ee }

ON APPEAL FROM THE APPELLATE SESSION

OF THE SUPERIOR COURT OF CONNECTICUT

BRIEF FOR APPELLANT

OPINIONS BELOW

The opinion of the Appellate Session of the Superior

Court of Connecticut (J.A. 25) is unreported. The order of

the Supreme Court of Connecticut denying certification is

reported at 180 Conn. 756, 414 A.2d 199 (1980). No

opinions were filed by the Superior Court of Connecticut at

the trial level.

JURIS DICTION

The jurisdiction of this Court rests upon 28 U.S.C. § 1257

(2) (1976), 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.

The judgment of the Appellate Session of the Superior

Court 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 to the Jurisdictional Statement, was

duly filed in the Appellate Session of the Superior Court on

June 3, 1980. The case was docketed in this Court and a

Jurisdictional Statement filed on June 16, 1980. This Court

noted probable jurisdiction on October 6, 1980. (J.A. 27.)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case 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:

[Nor 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.

This case also involves Conn.Gen.Stat. § 46b-168

(1979). That statute provides that:

In any proceeding in which a question of paternity is an

issue, 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 admissible 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 chargea-

ble against the party making the motion.

STATEMENT OF THE CASE

On May 21, 1975, Gloria Streater, the appellee, gave

birth to a female child, Kenyatta Chantel Streater. The sole

factual issue in this case is whether Walter Little, the

appellant, is Kenyatta’s biological father.

Appellee was, at the time of Kenyatta’s birth, a recipient

of public assistance. As a requirement of continuing eligi-

bility for such assistance, she was compelled by Conn.Gen.

Stat. §46b-169 (1979) to disclose the name of Kenyatta’s

putative father to the Connecticut Department of Social

Services.' The name she gave to a Department repre-

sentative was Walter Little. (J.A. 14.)? The Department of

Social Services then retained an attorney to bring a paternity

action against appellant. (J.A. 10.)°

'The Connecticut Department of Social Services has since been

renamed the Department of Income Maintenance. Conn.Gen.Stat.

§17-1b (1979),

*Kenyatta Streater’s Birth Certificate omits all information con-

cerning the identity of her father. (R. 30.)

The State of Connecticut expended $332.20 in court costs and

attorney's fees in suing appellant, an amount later taxed to appellant as

costs. (J.A. 20.) }

On July 11, 1977, appellee signed a petition seeking a

judgment that Walter Little was the father of her child. (J.A.

3.) The action was filed in what was then termed the Court of

Common Pleas, Geographical Area No. 6, in New Haven,

Connecticut.* Walter Little was, at the time, incarcerated in

the Connecticut Correctional Institution, Enfield. (J.A. 18.)

As discussed at pp. 10-11, infra, modern medical tech-

nology has developed standard blood grouping tests that

scientifically and conclusively exonerate more than 90% of

all falsely accused defendants in paternity proceedings.

These tests were readily available in Connecticut at the time

this action was instituted at a cost of $250.5 Appellant,

however, was completely without assets and had no income

other than a nominal prison stipend. (J.A. 7.) His incarcera-

tion, of course, precluded any chance that he would be able

to earn the laboratory fee. He was, in a word, indigent.* He

consequently filed a Motion For Blood Grouping Test In

Forma Pauperis on November 28,'1977. The 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. (J.A. 5.) On December 5,

1977, however, this Motion was denied by the court to the

extent that it requested that the cost of such tests be paid by

the State. (J.A. 8.)

‘The Court of Common Pleas was merged with the Superior Court of

Connecticut on July 1, 1978, while this case was awaiting trial.

Conn.Gen.Stat, §51-164s (1979).

‘Interview with Herbert Silver, M.D., Director of Blood Bank and

Immunohematology, Hartford Hospital, in Hartford, Connecticut

(October 22, 1980). The cost of the test has recently been increased to

$460. Id.

‘The trial court later specifically found appellant to be indigent. (J.A.

23.)

The 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. (J.A. 12.)

After the trial, on October 4, 1978, the court entered an

order finding that appellant was the father of the child in

question. (J.A. 2.)®

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

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

maintenance and support of the child in question through

October 31, 1978, and attorney’s fees. (J.A. 20.) Under

Connecticut law, appellant will be additionally obligated to

provide support for the child in question for the duration of

her minority. Conn.Gen.Stat. §46b-215(a) (1979). The

sole recipient of this judgment is the Connecticut Depart-

ment of Finance and Control. (J.A. 21.)

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

1, 1980.

"Defendants in paternity proceedings in Connecticut, irrespective of

means, may obtain jury trials only upon payment of a $45 fee.

Conn.Gen.Stat. § 52-258 (1979). See Robertson v. Apuzzo, 170 Conn.

367, 365 A.2d 824, cert. denied, 429 U.S. 852 (1976).

®Appellant admitted at the trial to a single act of intercourse with

appellee at about the time Kenyatta Streater was conceived (J.A. 17),

but presented testimony that appellee had also been intimate with a

number of other men at the same time. Although appellee admitted «

history of intimacy with one of appellant’s witnesses, she denied that she

had had sexual relations with any man other than appellant at the time of

conception. (Untranscribed portion of September 28, 1978, testimony.)

The trial judge evidently considered appellee to be the more credible

witness.

HOW THE CONSTITUTIONAL QUESTION

WAS RAISED AND DECIDED BELOW

At the earliest stage of the proceedings below, 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.” (J.A.

5.) 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 party moving for the tests irrespective of

his means. Since the statute was not considered to be

controlling by the trial court or either of the parties? there was

no occasion at the trial level to drawits 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 claims. '°

Appellant appealed to the Appellate Session of the

Superior Court of Connecticut, reiterating his constitutional

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). In

Ferro, the Appellate Session, for the first time, construed

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

*Conn.Gen. Stat. § 46b-168 (1 979) was not mentioned by the court or

either party during the hearing on appellant’s Motion. Transcript of

December 5, 1977.

‘In making its post-trial F indings, the trial court expressly rejected

appellant’s constitutional claims. (J.A. 23.)

costs of blood grouping tests be charged to the party moving

for such tests, irrespective of his means, and upheld the

Constitutionality of this newly enunciated statutory re-

quirement.

The Appellate Session considered appellant’s constitu-

tional claims in the instant case in light of its intervening

decision in Ferro v. Morgan. It explicitly considered these

claims as drawing the constitutionality of $46b-168 into

question and expressly concluded that the statute does not

violate the constitutional rights of indigent putative fathers.

(J.A. 25.) The Supreme Court of Connecticut denied

certification.

SUMMARY OF ARGUMENT

Modern blood grouping tests conclusively exonerate more

than 90% of all falsely accused defendants in paternity

proceedings. Conn.Gen.Stat. § 46b-168 (1979), which de-

nies access to such tests to all defendants unable to pay for

them, violates the Due Process Clause of the Fourteenth

Amendment. Its denial of highly probative evidence solely

on the basis of indigency is inconsistent with this Court’s

repeated concern for accuracy in the judicial process. A

hearing characterized by such a denial is, moreover, not

constitutionally meaningful where the person denied is an

involuntary litigant; where he faces potential criminal con-

sequences if he loses; where the State, with all its power and

resources, is the real party haling him into court; where his

indigence is caused by his incarceration by that very State;

where a state evidentiary rule renders his testimony legally

—

insufficient to overcome the plaintiff's testimony, thus

requiring him to produce other evidence if he is to prevail;

and where the thing at issue is not something entirely

reducible to monetary terms, but the paternity of a child.

Il.

Connecticut’s blood test rule creates two classes of

involuntary litigants; those with assets, who can purchase

swift, scientific, and reliable justice; and those without

assets, who are thrust into swearing contests in which the

pans of justice are loaded against ihem. Because there is no

rational relationship between the ability to afford a labora-

tory fee and paternity or nonpaternity, and because the

litigation at issue is fraught with criminal implications and

has a direct impact on a family relationship, the egregious

disparity in the quality of justice afforded these two classes of

involuntary litigants denies indigent putative fathers the

equal protection of the laws.

ARGUMENT

I. THE DENIAL OF BLOOD GROUPING

TESTS TO A DEFENDANT IN A PA-

TERNITY PROCEEDING SOLELY BE-

CAUSE OF HIS INDIGENCY VIOLATES

THE DUE PROCESS CLAUSE.

The novelty of the constitutional issue presented by this

case should not obscure the palpable injustice that the

appellant has suffered. The State of Connecticut caused

Walter Little to be summoned into court where he was

required to prove that he was not the biological father of

Kenyatta Streater.'’ He had a single realistic means of

defending himself. A standard laboratory test, that scien-

tifically and conclusively exonerates more than 90% of all

falsely accused putative fathers, was readily available. The

test, however, cost $250, and Walter Little had nothing. He

was, moreover, precluded from raising this modest fee

because he was incarcerated by the very State that was

haling him into court. His request that the State pay for the

test was denied. The test remained tantalizingly out of reach.

The court thereafter pronounced him a parent, with all of the

responsibilities that that status entails, and pronounced

Kenyatta Streater the daughter of a criminal, solely on the

basis of conflicting testimonial evidence. This procedure did

not comport with the fundamental requirements of the

Fourteenth Amendment.

A. The unique importance of blood grouping tests

in paternity litigation.

The fundamental unfairness involved in the denial of

blood grouping tests to an indigent putative father results

from the unique importance of those tests in paternity

litigation and from the special characteristics of paternity

proceedings that distinguish them from garden variety civil

actions. A proper appreciation of the importance of blood

tests requirés a brief description of their nature and history.

Inherited characteristics have doubless been used in the

determination of paternity since ancient times, and judicial

references to the genetic knowledge of the day date back

\1\Appellant’s evidentiary burden is discussed at pp. 30-32, infra.

almost two centuries. See Commissioners of Almshouse v.

Whistelo, 3 Wheeler’s Crim. Cas. 194, 235 (N.Y. Gen.

Sess. 1808). The discovery of human blood groups by Karl

Landsteiner in Vienna at the beginning of this century, for

which he received the 1930 Nobel Prize for Medicine, ulti-

mately made it possible to scientifically exonerate innocent

putative fathers on a wholesale basis.

Landsteiner’s announcement in 1901 that human blood

could be classified into three distinct groups (a fourth group

was discovered in 1902) explained the hitherto unintelligible

disasters that had previously resulted from attempted blood

transfusions. Although it did not occur to Landsteiner at the

time that serological propeties might be inherited, their

application to paternity problems was recognized by two of

his German colleagues in 1911. The first theory of heredity

of the classical blood groups was mathematically revised in

1924. It thus became possible to scientifically prove that a

given man could not possibly be the father of a given child.

Thereafter, nothing stood in the way of applying blood tests

in paternity actions. P. Speiser & F. Smekal, Karl

Landsteiner, 91-93 (1975).

Courts in Europe were quick to utilize this opportunity to

scientifically exclude innocent putative fathers. Blood tests

were used in more than 5000 legal actions in Germany alone

between 1924 and 1929. Schiff, The Medico Legal Sig-

nificance of Blood Groups, 217 The Lancet 921, 921-22

(1929). Courts in Austria, Scandinavia, and Italy soon

followed. L. Lattes, Individuality of the Blood in Biology

and in Clinical and Forensic Medicine 253-54 (rev. ed.

1932).

Courts in this country responded somewhat more slowly.

Although a putative father was exonerated by a blood test in

Commonwealth v. Zammarelli, 17 Pa. D.&C. 229 (1931),

a well-reasoned New York decision ordering such a test was

reversed on appeal. Beuschel v. Manowitz, 151 Misc. 899,

271 N.Y.S. 277, rev'd per curiam, 241 App. Div. 888, 272

N.Y.S. 165, motion for leave to appeal denied, 265 N.Y.

509, 193 N.E. 295 (1934). The New York Legislature,

however, quickly passed a series of iaws authorizing courts

to order blood grouping tests in a variety of legal disputes,

1935 N.Y. Laws chs. 196-98, and an irreversible evi-

dentiary trend had begun. The Connecticut courts were,

ironically, among the first to recognize the evidential value of

blood tests in paternity cases. See, Domonkos ex rel.

Herman v. Rotundo, 4 Conn. Supp. 29 (C.P. 1936). In

1936, the Supreme Court of South Dakota became the first

state court of highest jurisdiction to acknowledge the useful-

ness of blood tests in the judicial truthseeking function. State

v. Damm, 64 S.D. 309, 266 N.W. 667 (1936).

Judicial acceptance of the reliability of blood grouping

tests in excluding the paternity of innocent putative fathers is

now, for all practical purposes, complete and universal. The

most prolific commentator on paternity litigation has noted:

As far as the accuracy, reliability, dependability -

even infallibility - of the test are concerned, there is no

longer any controversy. The result of the test is

universally accepted by distinguished scientific and

medical authority. There is, in fact, no living authority

of repute, medical or legal, who may be cited ad-

versely. ...

[T]here is now. . .practically universal and ananimous

judicial willingness to give decisive and controlling

evidentiary weight to a blood test exclusion of paternity.

1 S. Schatkin, Disputed Paternity Proceedings §9.13 at 9-

38-40 (rev. ed. 1979).

As judicial acceptance of blood grouping tests has grown,

the tests themselves have become capable of exonerating a

steadily increasing percentage of innocent putative fathers. A

few years ago a falsely accused man had only a 50-55%

chance of scientifically proving his nonpaternity. See State y.

Fowler, 277 N.C. 305, 308, 177 S.E. 2d 385, 387 (1970);

McCormick’s Law of Evidence §211 at 519 (2ded. 1972),

Those statistics are now ancient history. There hias, in recent

years, been a scientific “revolution” in the use of blood group

Systems in cases of disputed paternity as a result of the

introduction of the HLA (for human, leukocyte, antigen)

system of testing. Terasaki, Resolution by HLA Testing of

1000 Paternity Cases Not Excluded by ABO Testing, 16

J.Fam.L. 543 (1978).

Whereas previous tests were based on red blood cell

groupings, the HLA test is based on tissue typing of the white

blood cells. See Cramer v. Morrison, 88 Cal. App. 3d 873,

877-78, 153 Cal.Rpotr. 865. 867 (1979) (discussing Dr.

Terasaki’s trial testimony). It is readily available, reasonably

inexpensive, and dramatically effective. It conclusively ex-

cludes 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). Accord, Hepfel v. Bashaw, 279 N.W. 2d

342, 347 (Minn. 1979): State ex rel. Ortloffv. Hanson, 277

N.W.2d 205, 207 (Minn. 1979); Lascaris v. Lardeo, 100

Misc. 2d 220, 222, 417 N.YS. 2d665, 666 (1979). This

effectiveness is sufficiently great to distinguish modern blood

"The Appellate Session of the Superior Court of Connecticut has

grounded its recent blood test decisions on this badly outdated factual

assumption. Ferro v. Morgan, 35 Conn. Supp. 679, 685, 406 A.2d 873.

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

Both of the named parties in the instant case are black.

grouping tests from virtually all other conceivable items of

potentially exculpatory evidence and to make the denial of

those tests to indigent putative fathers an injustice of

constitutional proportions.

The availability of this scientific evidence is crucial in

paternity litigation because testimonial evidence in such

proceedings is inherently susceptible to doubt. In a series of

recent cases involving discriminations against illegitimate

children, this Court has repeatedly noted the peculiar dif-

ficulties involved in proving the paternity of such children.

Parham v. Hughes, 441 U.S. 347, 355 (1979) (plurality

opinion); id. at 360 (Powell, J. concurring); Lalli v. Lalli,

439 U.S. 259, 268-69 (1978) (plurality opinion); Trimble v.

Gordon, 430 U.S. 762, 772 (1977); Gomez v. Perez, 409

U.S. 535, 538 (1973). See Caban v. Mohammed, 441 U.S.

380, 405 (1979) (Stevens, J. dissenting); Stanley v. Illinois,

405 U.S. 645, 665 (1972) (Burger, C.J. dissenting). Perhaps

the best judicial expression of these difficulties of proof was

written by Justice Brennan when he sat on the Appellate

Division of the New Jersey Superior Court:

[I]n the field of contested paternity. . .the truth is so

often obscured because social pressures create a con-

spiracy of silence or, worse, induce deliberate falsity.

The value of blood tests as a wholesome aid in the

quest for truth in the administration of justice in these

matters cannot be gainsaid in this day.

Cortese v. Cortese, 10 N.J. Super. 152, 156, 76 A.2d Tat,

719 (1950).

Testimony from accurate or reliable eye-witnesses is rarely

available in paternity cases since the sexual activities at issue

“usually take place in intimate and private surroundings, and

the self-serving testimony of a party is of questionable

reliability.” Larson, Blood Test Exclusion Procedures in

Paternity Litigation: The Uniform Acts and Beyond, 13

J.Fam.L. 713, 713 (1974). The peculiar unreliability of

testimonial evidence in paternity actions is a particularly

grave matter because every scientific Study done on the

matter indicates that a very large number of defendants in

such proceedings have been falsely accused.

The advent of blood grouping tests has made it possible to

measure the percentage of innocent putative fathers with

some precision In 5500 paternity actions litigated in Europe

in the 1920’s blood tests exonerated defendants in 8% of the

cases. Since the blood tests of that day were incapable of

excluding more than 16% of all innocent putative fathers, the

first scientific commentator observed that “roughly every

second man had been denounced unjustly.” Schiff, The

Medico legal Significance of Blood Groups, 217 The Lancet

921, 922 (1929) (emphasis added). A later study of 6655

paternity cases in several European countries also concluded

that “[H]alf of the defendants in these cases were falsely

accused.” A. Weiner, Blood Groups and T\ ransfusion 383

(3d ed. 1943). Studies in this country have reached similar

conclusions. One survey of 1000 disputed paternity cases in

New York City in which blood tests were used showed that

39.6% of men denying paternity were falsely accused.

Sussman, Blood Grouping Tests, 40 Am.J.Clinical

Pathology 38,38 (1963)."* For the results of other blood test

Studies yielding similar statistical results see 1 S. Schatkin.

'‘Perhaps even more disturbing, a companion Study demonstrated that

18% of paternity defendants who admitted paternity “were not the

Disputed Paternity Proceedings, § §9.05-9.09 at 9-12-26

(rev. ed. 1979)."°

Scientific evidence is typically superior to testimonial

evidence for a number of obvious reasons. But the gulf that

yawns between modern blood test evidence on the one hand

and the self-serving testimony of parties on the other in

paternity litigation is vast beyond compare. We do not

suggest, of course, that it is impossible for a factfinder in a

paternity case to arrive at the correct result by hearing

testimony. In some cases it will be obvious who is telling the

truth and who is not; in others the correct result may be

arrived at by what is more or less a guess. We do suggest,

however, that false testimony and innocent defendants are

commonplace in paternity proceedings and that, in the

absence of blood test evidence, it is inevitable that innocent

men will be convicted with an intolerable regularity.

The denial of this crucial evidence to indigent defendants

typically deprives them of the only persuasive evidence they

could possibly present in court, and thereby renders the

'SLie detector studies have yielded similar results. A six year study of

disputed paternity cases in Chicago, in which the parties submitted to

polygraph tests following their courtroom testimony, showed that ‘93

percent of the tested parties lied in some respect when they testified in

court as to their sexual relationship,”’ and that in over 47% of the cases

the complainant ‘’was reported lying when she denied having intercourse

with anyone else but the defendant during the conception period. In the

great majority of cases the lying mother confessed to the lie-detector

examiner that she had lied in court.”’ Arther & Reid, Utilizing the Lie

Detector Technique to Determine the Truth in Disputed Paternity

Cases, 45 J.Crim.L., Criminology & Police Sci. 213,215, 217 (1954).

Such statistical evidence corroborates the frequently cited remarks of

Lord Merthyr in the House of Lords. “In my experience of these cases,

apart from one other class - namely, fish-poaching cases - there is no

class of case in which there is a greater degree of perjury in the courts.”

229 Parl.Deb.H.L. (Sth ser.) 1090 (1961).

resulting judgmental process infinitely more Capricious.

These factual considerations, combined with the distinctive

legal characteristics of paternity proceedings discussed infra,

bring the injustice worked upon Walter Little to the heart of

the historic concerns of the Fourteenth Amendment.

B. The Requirements of the Due Process Clause.

Nothing is more remarkable in this case than the almost

total isolation of Connecticut law. The only State other than

Connecticut that requires all defendants in paternity pro-

ceedings, irrespective of means, to pay for blood grouping

tests in advance of trial or otherwise do without such evidence

altogether is North Carolina.'* The vast majority of Ameri-

can jurisdictions, either expressly or by implication, provide

some mechanism giving indigent putative fathers access to

blood tests.'’ The constitutional ruling of the court below in

See N.C.Gen.Stat. §8-50.1 (Supp. 1979).

‘Twenty-five 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, nineteen states and the District of Columbia do

so by statute. Ala. Code tit. 26 § 12-5 (1 977); Ark. Stat.Ann. § 34-705. 1

(1962); Cal. Evid. Code §894 (Deering 1966), see 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. 1980-81); 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. 1980); Mich.

Stat. Ann. § 25.496(c) (1974); 1980 Minn. Sess. Law Serv. ch. 589§ 19

(West) (to be codified as Minn. Stat. § 257.69); N.H. Rev. Stat. Ann.

§522.3 (1974); N.Y. Fam. Ct. Act § 532 (McKinney Supp. 1976-79),

see People ex rel. Van Epps v. Doherty, 261 App. Div. 86,24N.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.

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

Department of Human Resources “‘is a party of the suit’’); Utah Code

(continued)

(Jeotnote continued from preceding page)

Ann. §78-25-23 (1977); Wis. Stat. Ann. §52.36 (2) (West Supp.

1980-81) (the fees are subsequently taxes 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.2d 1072

(1977), commonwealth v. Possehl, 355 Mass. 575, 246 N.E.2d 667

(1969); State ex rel. Graves v. Daugherty, 266 S.E.2d 142 (W.Va.

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.2d 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 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. 1980-81); 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. 1980).

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 more states simply

provide that local courts “may” in their discretion, order such costs to

be paid by the parties. Ga. Code § 74-311 (Supp. 1980); Tenn. Code

Ann. § 24-716 (Supp. 1979); Va. Code § 20-61.2 (Supp. 1980); 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.

the instant case is no less idiosyncratic. Every state appellate

court outside of Connecticut that has considered the issue has

concluded that putative fathers may not constitutionally be

denied access to blood tests on the basis of indigency.

Franklin v. District Court, 194 Colo. 189, 571 P.2d 1072

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

N.E.2d 667 (1969); Walker v. Stokes, 45 Ohio App. 2d 275,

344 N.E.2d 159 (1975); State ex rel. Graves v. Daugherty,

266 S.E 2d 142 (W.Va. 1980).'* A consideration of the

(footnote continued from preceding page)

Although the relevant statutes in Alaska are unclear, courts in that

State would, in all probability, order such payment by virtue of Reynolds

v. Kimmons, 569 P.2d 799 (Alas. 1977) (holding that indigent putative

fathers have a due process right to counse! where the complainant is

represented by the State). In Nebraska, a District Court judge ordered

the costs of blood tests to be paid from public funds in an illegitimacy

case remanded by the Supreme Court of Nebraska in Ford vy. Ford, 191

Neb. 548, 216 N.W.2d 176 (1974). Ford v. Ford, Doc. 655, No. 275

(Dist. Ct. Douglas Cty. Neb. Feb. 21, 1975). The laws of the remaining

eleven States (Arizona, Delaware, Florida, lowa, Missouri, Montana.

New Mexico, Oklahoma, South Carolina, South Dakota, and Vermont)

are unclear.

'8A Family Court judge in New York has also reached this conclusion

in a particularly well-reasoned opinion. Lascaris v. Lardeo, 100

Misc.2d 220, 417 N.Y.S. 2d 665 (Fam.Ct. 1979). See Reynolds vy.

Kimmons, 569 P.2d 779 (Alas. 1977), and G. v. R., 95 Misc. 2d 273,

407 N.Y.S. 2d 414 (Fam. Ct. 1978) (giving indigent putative fathers the

constitutional right to counsel). Cf M. ex rel. T. 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 extensively

on constitutional precedent and reasoning).

This 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 tests 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),

fundamental requirements of the Due Process Clause and of

the distinctive legal characteristics of paternity proceedings,

makes it clear that the profound isolation of Connecticut law

on this issue is eminently deserved.

We start with the proposition that the fact that a man is

haled into court as a civil, as distinct from a criminal,

defendant does not wholly strip him of basic constitutional

protections. He has an indubitable right to be heard. Daniel

Webster argued in the Dartmouth College case that “the law

of the land” is “‘a law which hears before it condemns; which

proceeds upon inquiry, and renders judgment only after

trial.” Trustees of Dartmouth College v. Woodward, 17

U.S. (4 Wheat.) 518, 581 (1819). This Court noted well

before the Civil War that in our jurisprudence “‘no man shall

be condemned in his person or property without... an

opportunity to make his defense,” Boswell’s Lessee v, Otis,

50 U.S. (9 How.) 336, 350 (1850), and repeated this

observation a number of times before finally giving it

constitutional significance in Hovey v. Elliott, 167 U.S. 409,

45,444 (1897). See Windsor v. Mc Veigh, 93 U.S. 274, 277

(1876); Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1864);

Nations v. Johnson, 65 U.S. (24 How.) 195, 203 (1861).

This fundamental theme has continually. recurred in this

century.'? This Court stated in Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306, 313564950), that:

Many controversies have raged about the cryptic and

abstract words of the Due Process Clause but there can

be no doubt that at a minimum they require that

deprivation of life, liberty or property by adjudication be

preceded by notice and opportunity for hearing ap-

propriate to the nature of the case.

''See Boddie v. Connecticut, 401 US. 371, 377-78 n.3 (1971).

In a perhaps even more celebrated statement, this Court

declared in Boddie v. Connecticut, 401 U.S. 371, 377

(1971), a case involving civil plaintiffs, that ‘‘[D]ue 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 be heard.”

Boddie was, of course, concerned with a class of litigants

(in that case, would-be divorce plaintiffs) who were literally

excluded from the courtroom by a filing fee, just as the

defendants in Hovey, Windsor, and Baldwin had been totally

denied an opportunity to appear in cases involving their

property interests. Bui although the physical opportunity to

appear in the courtroom, without more, doubtless satisfies the

notice and hearing requirements of the Due Process Clause in

the typical civil case, it does not follow that such an

opportunity, in and of itself, necessarily satisfies those

requirements in every case. This Court has, by way of

analogy, never been satisfied with the mere assertion of

notice. Rather, it has assiduously scrutinized forms of notice

to ensure that such notice is meaningful. Mullane is a well-

known example of this scrutiny; other examples stretch back

to Nations and Boswell’s Lessee.

This Coutt’s pronouncements in Mullane and Boddie

similarly indicate that the requirement of the Due Process

Clause that civil defendants be granted an opportunity to

appear has a qualitative aspect and is not in every case

satisfied by the mere form of a hearing. Mullane’s language, if

not its holding, indicates that there must be an “‘opportunity

for hearing appropriate to the nature of the case,” 339 U.S. at

313 (empnasis added). Boddie emphatically states that there

must be a meaningful opportunity to be heard,” 401 U.S. at

377 (emphasis added). It is implicit in these pronouncements

that in limited circumstances, where the outcome of a

nominally civil action is particularly consequential, this court

has reserved the power to scrutinize the hearing given an

involuntary litigant to ensure that it is, in some fundamental

sense, meaningful. It is our contention that, if a defendant in a

paternity proceeding is, solely because of indigency, denied

an otherwise readily available laboratory test that con-

clusively exonerates more than 90% of all innocent de-

fendants, he has been denied a meaningful hearing in the

constitutional sense of that term.

The denial of a blood test under these circumstances is the

denial of a meaningful hearing in part because the resulting

suppression of such an overwhelmingly probative item of

evidence will inevitably “impede unacceptably the truth-

finding functions of judge and jury.” United States v. Payner,

100 S.Ct. 2439, 2445-46 (1980). Payner is only the most

recent example of this Court’s repeated concern for accuracy

in the judicial process. In a series of cases involving the fourth

Amendment tnis Court has given constitutional significance

to the jurisprudential notion that adjudications of fact should

be grounded *“‘on the basis of all the evidence which exposes

the truth.” Alderman vy. United States, 394 U.S. 165. 175

(1969). See Rakas v. Illinois, 439 U.S. 128, 137 (1978):

United States v. Ceccolini, 435 U.S. 268, 276 (1978): Stone

v. Powell, 428 U.S. 465, 490 (1976).

There is, thus, a “strong interest under any system of

justice of making available to the trier of fact all concededly

relevant and trustworthy evidence which either party seeks to

adduce.” Michigan v. Tucker, 417 U.S. 433, 450 ( 1974),

This interest is in part philosophical. “The end of litigation is

justice. Knowledge of the truth is essential thereto.” Union

Pacific Railway v. Botsford, 141 U.S. 250, 258 (1891)

(Brewer, J. dissenting).2° There is also a more pragmatic

strain to this interest. If the courts of this country either

directly or indirectly suppress highly probative evidence and

proceed on the basis of infinitely less reliable evidence to

render factual adjudications the accuracy of which is open to

obvious doubt, what this Court has called “‘the moral force”’

of the law, 7 re Winship, 397 U.S. 358, 364 (1970), will be

ineluctably diluted. Such a deflection of “the truthfinding

process. ..may well have the. . . effect of generating disrespect

for the law and the administration of justice.”’ Stone v. Powell,

. supra, 428 U.S. at 490-91.

These considerations have historically been at the heart of

judicial rulings concerning blood tests. The first appellate

decision affirming the reliability of blood tests declared that

“The primary function of the judiciary is the administration

of justice, and justice can never be rightly administered

unless truth be first ascertained as nearly as may be.”’ State

v. Damm, 64S.D. 309, 316, 266 N.W. 667,670 (1936). As

noted, supra, Justice Brennan as a state appellate judge

spoke of blood grouping tests as “‘a wholesome aid in the

quest for truth in the administration of justice.” Cortese v.

Cortese, 10N.J. Super. 152, 156,76 A.2d 717, 719 (1950).

It is particularly important that when this Court considered

the somewhat different blood tests at issue in Schmerber v.

California, 384 U.S. 757 (1966), and Breithaupt v. Abram,

352 U.S. 432 (1957), it upheld them in large part on these

grounds. Society, the Court stated in Breithaupt, has an

interest ‘‘in the scientific determination of intoxication. . . .

2’Our goals are truth and justice, and procedures are but means to

these ends.” Oaks, Ethics, Morality, and Professional Responsibility,

1975 B.Y.U. L.Rev. 591, 596 (1975).

And the more so since the test. . -may establish innocence,

thus affording protection against the treachery of judgment

based on one or more of the senses.” 352 U.S. at 439.

There are obvious and necessary limits on this Court’s

power to ensure that judicial proceedings are meaningful and

accurate in fact. The decisions of this Court cannot bestow

our society with the resources to provide, for example,

counsel and expert witnesses to uncounted numbers of civil

litigants. Such accounterments are, in any event, typically

marginally helpful rather than absolutely crucial to the

accurate adjudication of fact. The denial of readily available

blood tests to indigent putative fathers is, however, a quite

different matter. This denial is at once the deprivation of an

indispensible and irreplacable opportunity of exoneration

and an injustice readily correctible by this Court at an almost

pitifully modest cost to society.?! Justice Frankfurter sug-

gested a like distinction in the Griffin case:

Law addresses itself to actualities. . . Of course a

State need not equalize economic conditions. A man of

means may be able to afford the retention of an

expensive, able counsel not within reach of a poor

man’s purse. Those are contingencies of life which are

hardly within the power, let alone the duty, of a State to

correct, or cushion. But when a State deems it wise and

just that convictions be susceptible to review by an

appellate court, it cannot by force of its exactions draw a

line which precludes convicted indigent persons, for-

sooth erroneously convicted, from securing such a

review merely by disabling them from bringing to the

*!In this respect, it is important to note that a provision by the State of

blood tests to indigent putative fathers in advance of trial need not be a

gratuitous subsidy. The cost of the test could be taxed as costs to the

losing party. See Kan. Stat. §23-132 (1974): Wis. Stat. Ann.

§52.36(2) (West Supp. 1980-81).

notice of an appellate tribunal errors of the trial court

which would upset the conviction were practical op-

portunity for review not foreclosed.

Griffin v. Illinois, 351 U.S. 12, 23 (1956) (Frankfurter, J.

concurring). |

Similarly 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 State may not disable

indigent defendants, forsooth innocent, from bringing this

evidence to the notice of the trial court. Without this

evidence, the indigent defendant is placed in a swearing

contest”? with the plaintiff in which the judge?’ must, often

desperately, rely on his subjective instincts, rather than hard

scientific data, as to which witness is telling the truth. This

denial of evidence obviously robbed the hearing below of a

great deal of meaning. Had this not been a paternity action,

the hearing might well have remained constitutionally

meaningfui. But, in this case, considerations arising from the

unique legal character of paternity litigation and the cir-

cumstances of the defendant collectively require an un-

usually stringent standard of judicial review, which, if

exercised, must necessarily conclude that the denial of a

blood test made the proceedings below unmeaningful in a

constitutional sense.

First. This action involves the denial of an essential item

of evidence to a defendant. This Court has drawn a

constitutional distinction between the rights accorded per-

sons involuntarily ‘“ ‘haled into court’ by the State” and

221n Connecticut, moreover, this swearing contest is one that is heavily

biased in favor of the plaintiff. See pp. 30-32, infra.

23Not, in Connecticut, a jury. See n.7, supra.

voluntary litigants seeking to use rights as a sword rather

than a shielf. Ross v. Moffittt, 417 U.S. 600, 610-11 (1974).

Boddie v. Connecticut recognized that the principles of due

process enunciated by this Court over the years have

typically concerned the “rights of defendants compelled to

litigate their differences in the judicial forum.” 401 U.S. at

785. The truly novel feature of Boddie was its extension of

those rights to a class of civil plaintiffs on the basis of the

State’s monopoly of divorce adjudication. The appellant in

the instant case need not, of course, be analogized to a

defendant; he is a defendant.

This obvious fact serves to readily distinguish the instant

case trom 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 fees to an indigent wishing to appeal

a denial of welfare benefits). Ortwein and Kras were

grounded on “the existence of alternatives. . . to the Judicial

remedy” available to the litigants in those cases. Ortwein,

supra, 410 U.S. at 659. In contrast, “the utter exclusiveness

of court access and court remedy. .. was a potent factor in

Boddie.” Kras, supra, 409 U.S. at 445. The appellant here

did not choose to file a legal action as one of several available

paths to relief. Rather, the State caused the appellee to

summon him to court against his will. His presence in court

was wholly involuntarily, and he is entitled to all of the due

process protections traditionally accorded to involuntary

litigants.

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

defendant in a paternity proceeding becomes subject to a

number of potential criminal and quasi-criminal sanctions

not present in the ordinary civil case.?4 The appellant here

**The perhaps unparalleled absence of such sanctions in Ohio was the

basis of the memorandum decision in Bigsby v. Bates, discussed inn.18.

supra.

has, of course, already been found liable for thousands of

dollars in support payments and is additionally obligated to

provide support for the child in question for the duration of

her minority. Conn.Gen.Stat. §46b-215(a) (1979). Should

he subsequentily fail to comply with any support order he

will be subject to imprisonment for contempt of court. Jd.

Even more seriously, appellant will further be subject to

criminal prosecution and imprisonment for nonsupport.

Conn.Gen.Stat. §53-304(a) provides that:

Any person who neglects or refuses to furnish

reasonably necessary support to his. . . child under the

age of eighteen. . . shall be deemed guilty of nonsupport

and shall be imprisoned not more than one year, unless

he shows to the court. . . that, owning to physical

incapacity or other good cause, he is unable to furnish

such support. .. . [T]he term “‘child’’ shall include one

born out of wedlock whose father. . . has been adjudged

the father by a court of competent jurisdiction.

While § 53-304 as acriminal statute requires proof beyond a

reasonable doubt of each of the elements of nonsupport, the

statute makes it clear that the issue of paternity itself, once

adjudicated in a paternity proceeding, is res judicata and

cannot be relitigated.

The initial paternity proceeding, therefore, has ines-

capable criminal overtones. This characteristic renders the

action quasi-criminal in nature** and has been influential in

?SAlthough the Supreme Court of Connecticut characterized paternity

proceedings as “‘civil” rather than “criminal” in Robertson v. Apuzzo,

n.7 supra, such an adroit act of pigeonholing erases neither the existence

of the criminal sanctions discussed in the text nor the fact that these

sanctions are not involved in the ordinary civil case. Cf Smith v.

Bennett, 365 U.S. 708, 712 (1961) (“The availability of a procedure to

regain liberty lost through criminal process cannot be made contingent

upon a choice of labels’’). 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.

persuading a number of state courts that the denial of blood

tests in such an action is inconsistent with the dictates of the

Fourteenth Amendment. See Franklin v. District Court,

194 Colo. 189, 191 n.1, 571 P.2d 1072, 1074 n.1 (1977);

Walker v. Stokes, 45 Ohio App. 2d 275, 278, 344. N.E. 2d

159, 161 (1975); State ex rel. Graves v. Daugherty, 266

S.E. 2d 142, 146 (W.Va. 1980). Butin any event, regardless

of labels, the proceeding below implicated appellant’s

liberty, as well as property, interests, and therefore warrants

an appropriately elevated level of scrutiny.

Third. Although the instant case is nominally 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 judicial

proceeding. In the first place, of course, the proceeding

below was conducted in a state court and affirmed by a state

appellate tribunal. ‘The judicial action. . . bears the clear

and unmistakable imprimatur of the State.” Shelley v.

Kraemer, 334 U.S. 1,20(1948). The State, moreover, lurks

in the background of every paternity proceeding in Con-

necticut by virtue of the potential criminal and contempt

sanctions discussed supra. But the State is much more

directly involved in the instant case. Since appellee is a

recipient of public assistance, the decision to summon

appellant into court was made not by her but by the

Connecticut Department of Social Services. That Depart-

ment referred this case to appellee’s eventual attorney “‘for

prosecution”’(J.A. 10). The State not only paid that attorney

some $300 to prosecute appellant (J.A. 20) but is the actual

recipient of the several thousand dollars of support money

awarded by the trial court (J.A. 21).

This procedure is, in fact, mandated by both state and

federal law. Conn.Gen.Stat. § 46b-169(a) (1979) compels

the mother of any child born out of wedlock to disclose the

nameof the child’s putative father to the welfare authorities if

the child is a recipient of public assistance.** That statute

further compels her ‘‘to institute an action to establish the

paternity of said child.”’ Connecticut’s requirement is,

furthermore, mandated by 42 U.S.C. §654 (4) (1976),

which requires the States “‘to establish the paternity” of

illegitimate children receiving AFDC payments and ‘“‘to

secure support for such child from his parents.’’?’ See 45

C.F.R. §232.12 (1979). Because of these requirements,

State action has been institutionalized in paternity pro-

ceedings involving recipients of public assistance.

It has been clear since the Civil Rights Cases, 109 U.S. 3

(1883), that the abrogation and denial of rights by the States

‘““was the great seminal and fundamental wrong which was

intended to be remedied”’ by the Fourteenth Amendment.

Id. at 18. But as this Court has also observed, ‘‘Conduct that

is formally ‘private’ may become so entwined with govern-

mental policies or so impregnated with a governmental

character as to become subject to the constitutional limita-

tions 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

The constitutionality of this disclosure requirement has been twice

before this Court but was left unresolved by the Court on both occasions.

Maher v. Doe, 432 U.S. 526 (1977); Roe v. Norton, 422 U.S. 391

(1975).

7Although Connecticut's statutory requirement, originally enacted

by 1971 Conn.Pub.Acts. No. 439 § 4, predates the federal one, enacted

as part of the Social Services Amendments of 1974, 88 Stat. 2337,

2359-60, the federal statute has now largely preempted the field, and

Connecticut is no longer free to significantly alter its requirement.

[Very little area is left open for state action.”” Doe v. Maher, 414

F.Supp. 1368, 1378 (D.Conn. 1976), vacated, 432 U.S. 526 (1977).

of this undeniable fact, the legal actions of the appellee,

nominally a private citizen, were essentially the actions of

the State for purposes of the Fouirteenth Amendment.*

Fourth. It is of particular significance in this case that the

reason that Walter Little was so poor as to be unable to

afford a modest laboratory fee was that he was incarcerated

by the very State that was simultaneosly expending the

necessary funds to hale him into court. This incarceration, of

course, rendered him indigent beyond peradventure. Phy-

sically cut off by the State from any opportunity of employ-

ment, the small sums that were within the “‘able-bodied

reach” of the petitioner in bankruptcy in United State sv.

Kras, 409 U.S. 434, 449 (1973), were beyond the wildest

dreams of the appellant in this case. He quite simply had no

ability to present any defense requiring any expenditure of

funds whatsoever. See Klapprott v. United States, 335 U.S.

601, 614 (1949) (plurality opinion).

While the States are, of course, free to imprison persons in

punishment for crime, the litigational disabilities that

inevitably attend incarceration impose some corresponding

responsibilities on the incarcerating authorities. This Court

has long prohibited prison officials from physically impeding

their charges from sending petitions to the Courts. Cochran

v. Kansas, 316 U.S. 255 (1942); Ex parte Hull, 312 U.S.

546 (1941). The Court has, however, also acknowledged the

**See G.v. R., 95 Misc. 2d 273, 275-76, 407 N.Y.S. 2d 414, 416

(Fam.Ct. 1978). The facts of this case make it unnecessary for the Court

to decide the much more difficult question of whether an indigent

defendant in a paternity proceeding brought by a plaintiff unassisted by

the State is also constitutionally entitled to a blood test. We note,

however, that this latter problem is much more academic than real since

few if any private individuals, as distinct from the State, will choose to

retain counsel and pay the necessary court fees to bring a lawsuit against

an indigent.

tact that, for an incarcerated person, mere physical access to

the Courts, without more, is often constitutionally insuf-

ficient. Thus, inJohnson v. Avery, 393 U.S. 483 (1969), the

Court held that, in the absence of some viable alternative, the

States may not prohibit ‘jailhouse lawyers” from assisting

their fellow inmates in the preparation of petitions for habeas

corpus relief. In doing so, the Court recognized that “In the

case of all except those who are able to help themselves. . .

the prisoner is, in effect, denied access to the courts unless

such help is available.” 393 U.S. at 488.

But this Court has also required the States to shoulder

affirmative responsibilities to offset the litigational difficul-

ties necessarily confronting prisoners. ”? In Bounds v. Smith,

430 U.S. 817 (1977), the Court held that, in the absence of

some reasonable alternative, state prison officials must

provide their charges with adequate law libraries. The Court

emphatically stated that it will require “remedial measures

to insure that inmate access to the courts is adequate,

effective, and meaningful.”’ Jd. at 822. But just as the

physical ability to communicate with the courts is often

unmeaningful to prisoners who lack all access to legal

materials, physical presence in court will sometimes be

unavailing if a prisoner defendant lacks all access to the only

effective evidence that he could possibly produce. It follows

from Bounds that, if the States choose to litigate against their

prisoners, this Court should scrutinize the hearings given

those inmates to ensure that, in some fundamental sense,

they are “adequate, effective, and meaningful.”

Fifth. The factors of involuntariness, potential criminal

29Cf, Estelle v. Gamble, 429 U.S. 97, 103 (1976) (establishing “the

government’s obligation to provide medical care for those whom it is

punishing by incarceration’’).

sanctions, state action, and an incarcerated defendant, 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 y.

Illinois, 351 U.S. 12 (1956), this Court held that the

Fourteenth Amendment compels a State to furnish a

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.”’ Jd. at 19.

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).

Under the principle of these cases, the States are obligated

to provide indigent criminal defendants with items of

evidence necessary for pretrial preparation. See Britt y.

North Carolina, 404 U.S. 226, 227 (1971) (“[T]he State

must provide an indigent defendant with a transcript of prior

proceedings when that transcript is needed for an effective

defense or appeal’’); Roberts v. LaVallee, 389 U.S. 40, 42

(1967) (“[D]ifferences in access to the instruments needed

to vindicate legal rights, when based upon the financial

situation of the defendant, are repugnant to the Constitu-

tion’’). The Court has further made it clear that Griffin and

Douglas are not dependent upon nomenclature and that they

apply to at least some nominally civil proceedings. See

Gardner v. California, 393 U.S. 367 (1969) (habeas

corpus); Long v. District Court, 385 U.S. 192 (1966)

(habeas corpus); Lane v. Brown, 372 U.S. 477 (1963)

(coram nobis); Smith v. Bennett, 365 U.S. 708 (1961)

(habeas corpus). Even more important, this Court has

extended the principle of Griffin to a case involving a mere

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

In doing so the Court looked in part to the practical effects of

the proceeding involved. “‘A fine,” it observed “‘may bear as

heavily on an indigent accused as forced confinement.” Jd.

at 197.

While criminal defendants stand on a particularly exalted

constitutional plane for obvious reasons, the underlying

principles 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. Here,

as in those cases, the defendant is indigent because he is

incarcerated by the very State that has summoned him into

court. And here, as in those cases, the defendant, because of

his indigence, has been deprived of an item absolutely

crucial for an effective presentation of his case.

At bottom the common property of Griffin and the instant

case is an abiding, fundamental unfairness. Disparities

between private litigants and their resources are an in-

escapable fact of life and are hardly repugnant to the

Constitution. But when “‘the State with all its resources and

power,” Green v. United States, 355 U.S. 184, 187 (1957),

hales into a court a man whom it has rendered indigent by

incarceration in a case pregnant with criminal implications

and there denies him a readily available laboratory test that

has a greater than 90% chance of conclusively proving his

innocence, the heavy-handed role that the State is choosing

to assume does not rest easily with the requirements of due

process. This “suppression by the prosecution of evidence

favorable to an accused”’ may not be accomplished with the

same culpability as the suppression in Brady v. Maryland,

373 U.S. 83, 87 (1963), but it is no less real. This Court has

noted in Wardius v. Oregon, 412 U.S. 470, 474 (1973), that

“[T]he Due Process Clause. . .does speak to the balance of

forces between the accused and his accuser.” See United

States v. Ash, 413 U.S. 300, 309 (1973). In the instant case,

that ‘balance of forces” was egregiously unfair and worked a

correspondingly unfair result. It is the historic role of this

Court in such cases “‘to keep the balance true.” Snyder v.

Massachusetts, 291 U.S. 97 (1934).

Sixth. In Connecticut this imbalance of forces is further

exacerbated by a unique evidentiary burden placed upon

defendants in paternity proceedings. Since the enactment of

Connecticut’s original bastardy statute in 1672, plaintiffs

and defendants in paternity actions have been placed in

dramatically unequal positions. The language of the original

Statute gives some indication of the idiosyncracy that has

historically marked this area of the law:

[T]he man charged by the Woman to be the F ather,

she holding constant in it (especially being put upon the

real discovery of the truth of it in the time of her travel)

shall be the reputed Father, and accordingly be liable to

the charge of maintenance. . -notwithstanding his

denyal; unless the circumstances of the case and pleas

be such on the behalf of the man charged, as that the

Court. . .shall see reason to acquit him.

The Book of the Generai Laws for the People within the

Jurisdiction of Connecticut 6 ( 1673).

Bastardy actions, moreover, provided the sole exception

to the common law rule that parties to legal actions could not

testify on their own behalf. As the Supreme Court of

Connecticut later explained:

[I]n cases of illegitimate children, it was considered

SO unjust that the mother should bear, not only the

suffering and danger attendant upon maternity, but in

“

addition the whole expense of supporting her child,

when there was another equally in fault, to say the least,

in respect to its birth, that an exception was made of

suits brought by her for the maintenance of the child,

and she was allowed to testify who was its father under

certain safeguards provided by the statute.

Booth v. Hart, 43 Conn. 480, 485 (1876). The putative

father, on the other hand, was not permitted to testify, id. at

486, but was considered protected by the requirement that

the mother be examined under oath and put to “discovery in

the time of her travail,’’ Town of Chaplin v. Hartshorne, 6

Conn. 41, 44 (1825). It was “‘recognized as a fact, es-

tablished by human experience, that, at such a time, a

woman in her anguish would be apt to speak as to that matter,

and to speak the truth.”’ State v. Sebastian, 81 Conn. 1,7, 69

A. 1054, 1056 (1908). If the defendant were to prove

himself innocent, he was compelled to do so “‘by other

evidence than his own.” Booth v. Hart, supra, 43 Conn. at |

480.

This review of colonial bastardy law has been necessary

because certain of its basic evidentiary anomalies persist in

Connecticut to this day. Although 1848 Conn.Pub.Acts. ch.

44§ 1 eliminated the testimonial disqualification of parties,

including putative fathers, the Supreme Court of Con-

necticut compensated for this change by nullifying the

statutory requirement that the mother be put to the discovery

in the time of her travail. Booth v. Hart, supra. Bastardy

proceedins,s thus became swearing contests, but contests in

which the defendant was placed at a singular disadvantage.

As the Supreme Court of Connecticut explained in Mosher

v. Bennett, 108 Conn. 671, 674, 144 A. 297, 298 (1929),

the mother’s constancy of accusation is sufficient to make

out a prima facie case. ‘““The prima facie case so made out

places upon the reputed father the burden of showing his

innocence of the charge, and under our practice he must do

this by other evidence than his own.” Id. (emphasis added).

Under this rule the instrinsic imbalance present in

bastardy proceedings prior to the 1848 qualification statute

has been, if anything, exacerbated. The mother need not be

“put to the discovery” because the putative father can now

testify, but although the putative father may now testify his

testimony will do him no good unless he manages to find

other evidence to support his defense. His testimony, no

matter how credible, is legally insufficient to outweigh the

plaintiff's testimony, no matter how incredible, in the pans of

justice. This is very much the law in Connecticut today. 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

that it would otherwise be. This rule not only renders “‘the

balance of forces” in a proceeding agaist an indigent yet

more egregiously unfair, but strips a hearing where the

defendant has been denied such a test of much of whatever

meaning it might have otherwise possessed.

Finally. It is of the utmost importance that the thing at

issue in the instant case is not a contract for the delivery of

potatoes or the title to a parcel of land or the monetary

damages attendant upon an automobile accident but the

paternity of a child. This Court has long rejected the Platonic

doctrine that the State should control the parent-child

relationship according to its own notions of expediency. See

Meyer v. Nebraska, 262 U.S. 390, 401-02 (1923). “The

child is not the mere creature of the State.”’ Pierce v. Society

of Sisters, 268 U.S. 510, 535 (1925). In this case, however,

the State has brought an unwilling defendant and an

unrepresented child before its own court system and ju-

dicially established a parent-child relationship between

them while abjuring the use of the most probative available

evidence to determine whether such a relationship in fact

exists. The Court should not countenance this cavalier

treatment of the parties involved.

This Court has, in recent years, recognized that both unwed

fathers and illegitimate children possess certain substantive

rights under the Fourteenth Amendment. Stanley v. Illinois,

405 U.S. 645 (1972), established that an unwed father has

an “‘interest. . .in the children he has sired and raised [that]

undeniably warrants deference and, absent a powerful

countervailing interest, protection.” Id. at 651. Cf: Caban v.

Mohammed, 441 U.S. 380 (1979) (invalidating a gender-

based statute disabling an unwed father from blocking the

adoption of his child).

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

Caban and Stanley. The fathers in those cases were

attempting to assert parental rights, while the appellant here

denies that he is, in fact, a parent. But the establishment of a

parental relationship, even under these circumstances, not

only entails the obvious financial responsibilities that have

been thrust upon the putative father but quite possibly a host

of other legal, moral, and emotional responsibilities that

cannot even be forseen at the present time. The establish-

ment of such a relationship by judicial fiat should thus invoke

the same basic protections that would attend the termination

of that relationship.

There is, moreover, another interest present in the instant

case. The court below not only made Walter Little a parent

while depriving him of the crucial evidence necessary to

defend that ailegation, but it simultaneously made Kenyatta

Streater his daughter. The fact that the State has chosen to

use its judicial machinery to pronounce this child the

daughter of a criminal on less than the best available

evidence is a poignant indication of its cavalier approach toa

judicial proceeding that should be characterized by the most

painstaking thoroughness.

This is particularly ironic because Congress, in enacting

42 U.S.C. §654 (1976), which compels the States to bring

paternity proceedings against the putative fathers of il-

legitimate AFDC recipients, plaintly intended the States to

endeavor to establish the biological relationships involved

accurately. The Senate Committee on Finance stated in its

report:

The Committee believes that an AFDC child has a

right to have its paternity ascertained in a fair and

efficient manner unless identification of the father is

clearly against the best interests of the child. Although

this may in some cases conflict with what a social

worker considers the mother’s short term interests, the

Committee feels that the child’s right to support,

inheritance, and to know who his father is deserves the

higher social priority.

S. Rep. No. 93-1356, 93d Cong. 2d Sess. 51 (1974),

reprinted in [1974] U.S. Code Cong. & Ad. News 8133.

8154-55,%°

This Court has established that children born out of

wedlock have some minimal constitutional rights to support,

see Gomez v. Perez, 409 U:S. 535 (1973), inheritance, see

Trimble v. Gordon, 430 U.S. 762 (1977), and to a

‘Interestingly, when the Senate first considered H.R. 17045. 93d

Cong., 2d Sess. (1974), the vehicle by which 42 U.S.C. § 654 (1976)

was ultimately to be enacted, it amended that bill to establish a national

system of laboratories that would provide state courts with blood test

evidence. 120 Cong. Rec. 40321 (1974). This amendment was later

deleted by a conference committee, H.R. Rep. No. 93-1643, 93d Cong.,

2d Sess. 30 (1974), reprinted in [1974] U.S. Code Cong. & Ad. News

8161, 8162, possibly because of civil libertarian fears about the intended

use of the tests as positive, as well as negative, evidence of paternity.

continuing relationship with their biological fathers, see

Caban v. Mohammed and Stanley v. Illinois, supra. “(T]he

child’s right to support, inheritance, and to know who his

father is” recognized by the Senate Committee on Finance is

thus a judicially cognizable interest as well. The Supreme

Court of Nebraska has noted that a child’s interest in a

judicial proceeding “‘may be adverse to both parents in the

case.” Ford v. Ford, 191 Neb. 548, 549-550, 216 N.W. 2d

176, 177 (1974). The judicial determination of parentage

will have “a much deeper impact upon the children as they

grow older as to their identity, the procuring of their

necessary support from the real father, inheritance rights,

and many others.” Jd. at 550, 216 N.W. 2d at 177.

Under these circumstances, it is in the interest of both the

putative father and the child in question that, if a parent-child

relationship exists, its existence be determined accurately.

To deprive the parties of an accurate determination of

paternity solely because of the poverty of the putative father

“needlessly risks running roughshod over the important

interests of both parent and child.” Stanley v. Illinois,

supra, 405 U.S. at 657. We respectfully submit that the

State of Connecticut has indeed run roughshod over these

important interests in the instant case.

The distinguishing characteristics of this case collectively

indicate that the Court should give the quality of the hearing

afforded appellant a particularly rigorous scrutiny. If, as we

have urged, the Due Process Clause does speak to the

qualitative aspects of the hearings afforded involuntary

litigants in cases where family rights are at issue and the

balance of forces egregiously unfair, the hearing afforded

appellant in this case must be deemed deficient. The denial

of access to a readily available laboratory test, that con-

clusively excludes more than 90% of all falsely accused

men, to the defendant in this case solely because of his

proverty rendered the swearing contest in which he was

necessarily placed unmeaningful in a constitutional sense.

“[A]bsent a countervailing state interest of overriding

significance,” this denial of “a meaningful opportunity to be

heard” was a denial of due process. Boddie y. Connecticut,

401 U.S. 371, 377 (1971). But here, as in Boddie, the

State’s only legitimate countervailing interest is ‘“‘resource

allocation or cost recoupment.” Jd. at 382. That justification

was offered and rejected in Boddie. It is, if anything, even

less convincing in the instant case, where the State is

aggressively using its judicial system to gain monetary

judgments from indigent defendants. This justification

should be rejected. The State is not, under the Due Process

Clause, free to deny such overwhelmingly probative evi-

dence to indigent persons, particularly its own indigent

prisoners, that it chooses to hale into court.

Il. THE DENIAL OF BLOOD GROUPING

TESTS TO A DEFENDANT IN A PA-

TERNITY PROCEEDING SOLEY BE-

CAUSE OF HIS INDIGENCY DENIES

HIM THE EQUAL PROTECTION OF THE

LAWS.

Connecticut’s requirement that all defendants in paternity

proceedings, irrespective of means, must pay for blood

grouping tests in advanceof trial or do without them

altogether not only works a palpable injustice on the

individual parties in any given proceeding but has a per-

vasive and pernicious effect on the entire system of paternity

law. The requirement has ineluctably resulted in a dual

system of justice.

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, more than 90% of all innocent nonindigent

defendants obtain swift, scientific, and absolutely un-

impeachable exonerations. Indigent defendants, on the other

hand, are summarily placed in swearing contests in which

the pans of justice are loaded against them. These are

contests, moreover, in which even the fairest and most

conscientious judges can rarely claim to render decisions not

open to doubt. There are, consequently, two dramatically

different systems of justice: a reliable one for defendants with

assets and an unreliable one for the poor. This glaring

disparity is inconsistent with the historic requirements of the

Equal Protection Clause.

Conn.Gen.Stat. §46b-168(1979) applies on its face to

rich and poor alike. But as this Court noted in Griffin v.

Illinois, 351 U.S. 12, 17 n.11 (1956) (plurality opinion),

‘“{A] law non-discriminatory on its face may be grossly

discriminatory in its operation.” Here the Connecticut

statute worked an invidious discrimination against appellant

solely because he was unable to pay the laboratory fee. See

Williams v. Illinois, 399 U.S. 235, 242 (1970).

This Court observed in Harper v. Virginia Board of

Elections, 383 U.S. 663, 668 (1966), that “Lines drawn on

the basis of wealth or property, like those of race, are

traditionally disfavored.”’ Economic barriers are par-

ticularly disfavored when they impede effective access to the

courts. Thus, in Griffin v. Illinois, supra, the Illinois rule

requiring all defendants in noncapital criminal cases,

whether indigent or not, to purchase a Stenographic tran-

script of the trial proceedings for use on appeal was deemed

to “effectively den[y] the poor an adequate appellate review

accorded to all who have enough money to pay the costs in

advance.” Id. at 18 (plurality opinion). Griffin’s broad

holding that ‘‘There can be no equal justice where the kind of

trial a man gets depends on the amount of money he has,”’ id.

at 19, is grounded in the requirements of equal protection as

well as those of due process. This is similarly the case with

Griffin’s progeny, discussed at pp. 28-29, supra.

In its most celebrated and thorough analysis of the

requirements of the Equal Protection Clause vis-a-vis

discrimination against the indigent, this Court noted the

common properties of the Griffin line of cases:

The individuals, or groups of individuals, who con-

stituted the class discriminated against in our prior

cases shared two distinguishing characteristics: be-

cause of their impecunity they were completely unable

to pay for some desired benefit, and as a consequence,

they sustained an absolute deprivation of a meaningful

Opportunity to enjoy that benefit,

San Antonio Independent School District y. Rodriguez,

411 U.S. 1,20 (1973). The school financing system at issue

in Rodriguez was held not to violate traditional concepts of

equal protection because it did not discriminate “against a

class of definably ‘poor’ persons.” id. at 22, and because, in

that case, “lack of personal resources has not occasioned an

absolute deprivation of the desired benefit,” id. at 23. The

Court acknowledged, however, that a case involving an

inflexible tuition fee that some pupils could pay and others

could not “would present a far more compelling set of

circumstances for judicial assistance.” Jd. at 25 n.60.

In contrast to Rodriguez, the instant case presents a

classic example of a prohibited discrimination against the

poor. The inflexible laboratory fee necessary to obtain a

blood test creates two sharply distinguished classes of

paternity defendants: those who happen to have the modest

personal resources necessary to pay the fee, and those who

do not. The putative fathers lacking such resources must,

moreover, completely do without the desired scientific

evidence, while the nonindigent readily obtain that evidence

and, if falsely accused, are overwhelmingly likely to con-

clusively prove their innocence. And, just as “‘the ability to

pay costs in advance bears no rational relationship to a

defendant’s guilt or innocence,” in a criminal case, Griffin v.

Illinois, supra, 351 U.S. at 17-18 (plurality opinion), the

putative father’s ability to pay for a blood test bears no

rational relationship to his paternity or nonpaternity.

We recognize that in United States v. Kras, 409 U.S. 434

(1973), and Ortwein v. Schwab, 410 U.S. 656 (1973), this

Court found that the bankruptcy and appeal filing fees at

issue in those cases did not violate the Equal Protection

Clause. Those cases involved litigation “in the area of

economics and social welfare,” United States v. Kras,

supra, 409 U.S. at 446. Paternity litigation cannot, how-

ever, be so described. As is discussed at some length in the

due process portion of this Brief, pp. 22-36, supra, paternity

proceedings are marked by certain characteristics, notably

their quasi-criminal nature and their direct impact on family

relationships, that readily distinguish them from typical civil

proceedings involving issues entirely reducible to monetary

terms. A putative father’s interest in the accurate de-

termination of his paternity, in particular, should “come to

this Court with a momentum for respect lacking when appeal

is made to liberties which derive merely from shifting

economic arrangements.” Kovacs vy. Cooper, 336 U.S. 77,

95 (1949) (Frankfurther, J. concurring). See Stanley y.

Illinois, 405 U.S. 645, 651 (1972).

Connecticut’s draconian blood test rule is, in any event,

far more pernicious than the filing fees at issue in Kras and

Ortwein. Its influence is systemic. The litigants in those

cases were would-be plaintiffs.*! If they did not have the

necessary funds when they sought to file their claims they

could at least hope to litigate those claims at a later date

when the necessary funds had been acquired. Moreover, as

the Court emphasized, they had at least some alternatives to

the judicial remedy. Ortwein, supra, 410 U.S. at 659. But

putative fathers are, by definition, defendants. They cannot

wait for more prosperous days to litigate their claims.

Rather, they must appear in court at a date certain, with or

without the necessary evidence. It is because of this

inescapable fact that Connecticut has created a dramatic and

unconscionable disparity between classes of involuntary

litigants. Nonindigent putative fathers can purchase reliable,

Scientific justice; indigent ones cannot. In the words of

Justice Black, writing for the plurality in Griffin v. Illinois,

‘Such a denial is a misfit in a country dedicated to affording

equal justice to all.” 351 U.S. at 19. Justice Frankfurter

may, however, be permitted the final observation:

To sanction such a ruthless consequence, inevitably

resulting from a monetary 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

‘Although the welfare recipients in Ortwein were technically

appellants, they were seeking an initial judicial review of their welfare

claims in the Oregon Court of Appeals, and were thus plaintiffs in effect.

Ortwein v. Schwab, 410 U.S. 656, 658 (1973).

bridges, to beg in the streets, and to steal bread.” (John

Cournos, A Modern Plutarch, p. 27.)

The State is not free to produce such a squalid

discrimination.

Griffin v. Illinois, supra, 351 U.S. at 23-24 (Frankfurter, J.

concurring).

CONCLUSION

Conn.Gen.Stat. §46b-168 (1979), violates the Due

Process and Equal Protection Clauses of the Fourteenth

Amendments. The judgment of the Appellate Session of the

Superior Court of Connecticut should therefore be reversed.

Respectfully submitted,

JON C. BLUE

Legal Assistance to Prisoners

340 Capitol Avenue

Hartford, Connecticut 06106

(203) 566-2030

Court-appointed Counsel

for Appellant

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