Amicus Brief — Little v. Streater

Supreme Court brief1981

Ask Donna

What actually matters in this document.

Text

veyron vuull, U. oy

FILED

NOV 24 (260

No. 79-6779

MICHAEL ECDAK, JR., CLERK

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 OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE CONNECTICUT CIVIL LIBERTIES UNION

AMICI CURIAE

CHARLES S. SIMS

BRUCE J. ENNIS, JR.

(Counsel of Record)

c/o American Civil

Liberties Union

132 West 43rd Street

New York, N.Y. 10036

(212) 944-9800

TABLE OF CONTENTS

Pages

TABLE OF AUTHORITIES...... aanaes iti

INTEREST OF PICT occ ccc cc cesses 1

SUMMARY OF ARGUMENT........eeee00- 3

ee ae witatetts fis an i

I. THE HEARING BELOW, IN FORM

A CIVIL SUIT BETWEEN PRIVATE

PARTIES, WAS IN SUBSTANCE

THE MEANS BY WHICH

CONNECTICUT SOUGHT TO DE-

PRIVE APPELLANT OF

eg oe SO a re 8

II. BECAUSE THE HEARING BELOW

WAS ALSO AN ATTEMPT BY

CONNECTICUT TO IMPOSE ON

APPELLANT A FUNDAMENTAL

RELATIONSHIP WHICH WOULD

DEPRIVE HIM OF PROTECTED

LIBERTY, CONNECTICUT WAS

REQUIRED BY THE DUE PRO-

CESS CLAUSE TO TAKE

REASONABLE STEPS TO DETER-

MINE WHETHER OR NOT THAT

RELATIONSHIP EXISTS....... 14

Pages

III. ACCORDING TO THE TEST OF

MATHEWS V. ELDRIDGE, DUE

PROCESS REQUIRES THAT THE

REASONABLE COSTS OF BLOOD-

TYPE TESTING BE BORNE BY

THE STATE WHERE SUCH TEST-

ING WOULD OTHERWISE NOT

BE CONDUCTED BECAUSE OF

THE INDIGENCY OF THE

PUTATIVE FATHER....cscccccceeada

A. Both The Property

And Liberty Interests

Of The Putative

Father Are Substantial..23

B. Paternity Actions Pre-

sent Substantial Risks

Of Erroneous Depriva-

tions Of Liberty And

Property. Blood-Type

Testing Would Sub-

stantially Reduce

TNOSO RISB. oo ccccserevcAdl

C. Blood-Type Testing

Would Further Impor-

tant State Interests,

At A Nominal Cost,

And With No Additional

Administrative Burdens..36

CONCLUSIGNe«cceee enee#e 5 te ele ale ece eee

TABLE OF AUTHORITIES

Cases Pages

Armstrong v. Manzo,

Bee UsB. 545 (1965) ..ccccvccccsess LD

Ashwander v. Tennessee Valley

Authority, 297 U.S. 288 (1935).... 43

Board of Curators, University of

Missouri v. Horowitz, 435

U.S. 78 STO Teé 60 6.6 ene ene “ee ee eee 18

Boddie v. Connecticut,

401 U.S. 371 (1971) ccccccccccceces . passim

Doe v. Harder, 310 F.Supp.

Pr CM, LS7O)cccccccccccscese bt

Doe v. Shapiro, 302 F.Supp.

761 (D. Conn. 1969) ..ccccceeeesves 12

Ferro v. Morgan, 35 Conn. Supp.

689, cert. denied 177 Conn.

753, 399 A.2d 526 (1979)...... sess SA

Goldberg v. Kelly,

397 U.S. 254 (1970) .. cc ceveevscees 15

Griffin v. Illinois,

ates BE CA9SG) wo ccccvcoscccecs 2

Holmes v. McLean, 5 Conn. Cir.

476, 256 A.2d 849 (1969)... cee. 29,35

Kelsaw v. Green, 6 Conn. Cir. 516,

276 A.2€ 909 (1971) .. cee pcaweres OF

-iii-

Cases Pages

Mathews v. Eldridge,

SOG. -UsBc) FAP CEPI Gl 64 0 606446 0000s passim

Moore v. East Cleveland,

a Pe | Oe be eee ae eee re 27

Morrissey v. Brewer,

GGG Ube S7k CAFIE) 6 i cstjosndecvesers 15 ,46,224

Mullane v. Central Hanover Bank &

Trust Co., 333 UsB. 306 (1950) .06+-+ 25

Ortwein v. Schwah,

410 U.S. 656 (1973) ..cccccccccvnce 19

Parham v. J. R.,

S6a Uibc See See Te? hb b ee eee OOS 16,18

Robertson v. Apuzzo, 170 Conn. 367

(1975), 365 A.2d 824, cert.

Gensen, 629 U.8s: Boas es vs 060000 60s 8

Roe v. Wade,

SEU UsOn ERS LARS we CE ho 00 8 oh aOR 27

Stanley v. Illinois,

Se Uilc, COS CLOT EL ce e800 boo es €4 KS 27

Terrasi v. Andrews, 3 Conn. Cir.

Ct. 499, 217 A.2d 75 (1966),

cert. denied, 153 Conn. 729,

214 A.2d 130, reconsideration

denied, 153 Conn. 731, 214 A.2d

CES c cece reser recesearersesteccies 9

-iv-

Cases

United States v. Kras,

409 U.S. 434 (1973)....

Williams v. Gray, 4 Conn.

Cry. 326, 2313 A.2a 285

(1967) weccvcsvccs peesee

Wood v. Georgia,

370 U.S. 375 (1962)....

Zablocki v. Redhail,

434 U.S. 374 (1978)....

Statutes and Regulations

Calif. Evid. Code, §895..

45 C.F.R., §303.5(c¢).....

So 6 8.84.6 4 8.6 & 6. @

es. 6 @°@,.6 @ & 8 8 6

45 C.F.R., §304.20(b) (2) (1) (B)......

Conn. Gen. Stat. §46b-160

Conn. Gen. Stat. §46b-162

Conn. Gen. Stat. §46b-165

Conn. Gen. Stat. §46b-168

Conn. Gen. Stat. §46b-169(b)........

Conn. Gen. Stat. §46b-170

Conn. Gen. Stat. §46b-171

Conn. Gen. Stat. §46b-176

-V=—

Statutes and Regulations Pages

Regulations of Connecticut

State Agencies, §17-82e-4......... 40

Regulations of Connecticut

State Agencies, §17-82e-6......... 10

11 U.S.C. §523 (a) (5). eee esenceees eco So

42 U.S.C. §$§651=-662. ..ccccccscccsees 25,42

42 U.S.C. §654(4) (A) .ccccccccccvecee 43

42 U.8.C. aS Perey es eee ee oeeee 43

Other Authorities

Reid, "Utilizing The Lie Detector

Technique To Determine The

Truth In Disputed Paternity

Cases," 45 J. Crim. L.C. &

Pubs BAS TAREE) 000 ose ve cdvawwdee oo

Ellman and Kaye, "Probabilities

and Proof: Can HLA and Blood

Group Testing Prove Paternity?"

24 Nit. VedseROVe LAB -(R78) o bcos 34

Family Study Commission,

State of Illinois, Report and

Recommendations (1969).........+.. 29,32

H.E.W. Office of Child Support

Enforcement, Blood Testing to

Establish Paternity (1977)........ 36,37

-Vvi-

Other Authorities Pages

Henningsen, "Some Aspects of

Blood Grouping in Cases of

Disputed Paternity in

Denmark," 2 Methods of

Forensic Science 209 (1963)........ 34

"Joint AMA-ABA Guidelines:

Present Status of Serologic

Testing in Problems of Dis-

puted Parentage," 10 Family

Law Quarterly 247 (1976)........ pat ee

Krause, Illegitimacy: Law

and Social Policy (197I).......... passim

Poulin, "Illegitimacy and

Family Privacy", 70

Northwestern U.L.Rev.

gi ee oa rr ee ee 31

Sussman, Paternity Testing by

Blood Grouping (2d ed. 1976)...... 34

Sussman & Schatkin, "Blood

Grouping Tests in Undis-

puted Paternity Proceed-

ings," 164 J.A.M.A. 249 (1957).... 30

Teraski, "Resolution by HLA

Testing of 1,000 Paternity

Cases Not Excluded by ABO

Testing," 16 J.Fam.L. 543

OS yo ere eee ee ee ee eee seen SE

(1978)

1974 U.S. Code Cong. and Adm.

vig-tniea nie nd CECE CREE OTT CU TC OTOTT 44

INTEREST OF AMICI ef

The American Civil Liberties Union is

a nationwide, non-partisan organization of

over 200,000 members dedicated to protect-

ing the fundamental rights of the people of

the United States. Central among those

rights is the right of due process of law,

the embodiment of our constitutional

commitment to justice through procedural

fairness. Accordingly, the ACLU has

participated in numerous cases to ensure

that individuals threatened with adverse

action by the government be offered the

basic requirement of due process, a mean-

ingful opportunity to be heard.

*/netters of consent from both parties to

the filing of this brief have been lodged

with the Clerk of the Court.

In this case, as in a very few others

the Court has decided in the past, it is

necessary to explore the circumstances

under which government must ensure due

process by providing not merely an oppor-

tunity, but the means for being heard.

Amici's experience in representing a

variety of indigent litigants has led to

our conclusion that in light of the

fundamental and protected interests of the

appellant at stake, the conceded relevance

and probative value of the procedure sought,

and the interests of the state, appellant's

right to provision of the blood-type test

sought is analogous to the rights of

litigants recognized in such cases as

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

and Griffin v. Illinois, 351 U.S. 12 (1956).

Moreover, the interest of the child in-

-~ Po

volved -- the unrepresented, but central

party to the dispute -- further buttresses

appellant's claim to the procedure sought.

This case raises an extremely narrow,

but extremely important question, and we

Submit this brief amici curiae to assist

the Court in its resolution.

SUMMARY OF ARGUMENT

The question posed by this appeal is

extremely narrow: where a state causes a

paternity hearing to be instituted in

order to gain money from the putative

father, does the constitutional guarantee

of due process require that the cost of

concededly relevant and probably dis-

positive blood-type testing be borne by

the state where such testing could not

otherwise be conducted because of the

indigency of the putative father? As

-3-

”

phrased heave, the Court's decision would

be applicable to only a small category of

paternity hearings. These, like the case

below, must (1) focus on a child who is

both illegitimate and a recipient of

public assistance, (2) be initiated by the

state in order for it to gain money from

the putative father, and (3) be directed

against a man who is himself indigent.

The procedure required in all other

paternity hearings -- and all other hear-

ings of any sort -- would remain unaffected.

Actually, the question is even narrow-

er. This case arises in Connecticut which,

by law, provides that the requested test is

relevant and its results are admissible in

paternity proceedings. Connecticut law

also provides that the testimony of a

credible putative father is not of it-

self sufficient to rebut the testimony of

a credible mother.

Thus, in Connecticut indigent putative

fathers are required by law to éneiedens

some evidence other than their own dis-

Claimers of paternity, but they are pre-

vented by their indigency from introduc-

ing in evidence test results which _.

Connecticut law deems probative, and which

would confirm non-paternity with 100%

accuracy in more than 90% of all cases.

The testing costs are nominal, as low

as $200 to $300. And since the federal

government, which strongly encourages

utilization of such tests, would provide

75% reimbursement, the actual cost to

Connecticut would be only $50 to $75.

The question, then, is whether a

state can initiate a paternity proceeding,

can require the putative father to intro-

duce evidence other than his own testimony,

_and can then refuse to absorb the nominal

so San

cost of a blood-type test the state con-

cedes is relevant, highly probative, and

probably dispositive, when the putative

father is indigent.

Providing blood-type testing in those

circumstances would further important

interests of all parties. For the

innocent putative father, the test serves

as his only effective defense against the

state's attempt to deprive him of property

and force on him a fundamental family re-

lationship where none exists. Without

the test, the putative father's opportunity

to defend would be practically meaningless.

For the state, such a test will frequently

result in a net savings, since the costs

of obtaining and enforcing a judgment will

probably be greater than the payments any

indigent defendant will be able to afford.

(Appellant pays $2.00 per month).

For the child, the test would help assure

a reliable finding of paternity, perhaps

eliminating as a potential father a man

whose only distinction is his indigency.

And the state has an acknowledged interest

and responsibility to the child to make

all reasonable attempts to ensure accuracy

in the determination of paternity.

The determination of paternity or

non-paternity affects fundamental interests.

In these circumstances, due process re-

quires the state to adopt reasonable pro-

cedures for resolving disputed factual

contentions. Under the three-part test

enunciated in Mathews v. Eldridge, 424

U.S. 319 (1975), the blood-type test re-

quested by Appellant is a reasonable

procedure which Connecticut, in the cir-

cumstances of this case, is constitu-

tionally required to provide.

aFea

ARGUMENT

I. THE HEARING BELOW, IN FORM A

CIVIL SUIT BETWEEN PRIVATE

PARTIES, WAS IN SUBSTANCE THE

MEANS BY WHICH CONNECTICUT

SOUGHT TO DEPRIVE APPELLANT

OF PROPERTY.

It is indisputable that a state may not

deprive an individual of property without

due process. The proceeding below, in form

a suit between private parties, was in

reality a suit brought by the state, thus

subjecting the procedures to the require-

ments of due process.

Under Connecticut law, determination of

the paternity of an illegitimate child

takes the form of a civil action. Robertson

v. Apuzzo, 170 Conn. 367 (1975), 365 A.2d

824, cert. denied, 429 U.S. 852. The child's

mother typically assumes the role of plain-

tiff, alleging some male to be its biological

father. A determination of paternity is

made at trial if she presents a "fair pre-

=§-

ponderance of the evidence." Terrasi v.

Andrews, 3 Conn. Cir. Ct. 499, 217 A.2d

75 (1966), cert. denied, 153 Conn. 729,

214 A.2d 130, reconsideration denied,

153 Conn. 731, 214 A.2d 683.

If the illegitimate child is a re-

cipient of public assistance, the paternity

hearing remains, in form, a private civil

action. However, although the suit is

still officially filed in the mother's

name, the State of Connecticut is the

real plaintiff. The mother is powerless:

she is required by state law to "disclose

the name of the putative father" to the

state and to "institute an action to

establish the paternity of said child."

Conn. Gen. Stat. §46-169(b).

After the suit is filed, the mother's

cooperation is of no consequence. If she

neglects or refuses to name an attorney,

aGe

the state chooses one from among its list

of those willing to serve "within depart-

ment requirements". Regulations of

Connecticut State Agencies §17-82e-6. If

she is unwilling to testify, she may be

subpoenaed, Conn. Gen. Stat. §46b-162, and

will not be excused from testifying, Conn.

Gen. Stat. §46b-165. The state assures

the protection of its interests in other

ways as well. Its Attorney General is

automatically made a party to the action,

Conn. Gen. Stat. §46b-160, and no with-

drawal or settlement can be made without

his approval. Conn. Gen. Stat. §46b-170.

A finding of paternity results in

recovery from the adjudged father of all

expenses incurred by the state. The

"lying-in" costs of mother and child and

the accrued maintenance of the child are

all charged to the father. Conn. Gen. Stat.

#16e

§46b-171. "[R]easonable attorney fees" --

the costs of the state-approved private

attorney who represented the mother -- are

also charged to him. Id. Finally, if it

appears that the child will remain a re-

cipient of public assistance, future child

support will be payable by the father

directly to the state. Id.

The paternity hearing below followed

precisely this procedure. Gloria Streater,

the mother of a child receiving public

assistance, was compelled to give the

state the name of a man as its putative

father. 1/ A private attorney was appoint-

ed and the Attorney General filed an

1/see Plaintiff's Disclosure and Produc-

tion, 459, July 20, 1980. The disclosure

was made on threat of discontinuation of

appellee's eligibility for public assist-

(footnote cont'd on next page)

-ll-

appearance for the state. Appellant was

found at trial to be the child's biological

father, and was judged liable for lying-in

costs, accrued maintenance, attorney fees,

and future child support. Judgment and

Order, October 16, 1978. None of these

sums was payable to the mother or her

child. Instead, appellant was ordered to

send all installments of the entire judg-

ment to the Department of Finance and

Control, State of Connecticut. Id. The

(footnote cont'd from previous page)

ance. See Appellant's "Facts Proven," 44,

November 17, 1978, and Appellee's con-

curring "Counterfinding," 41, December 13,

1978. Oddly, neither party has noted that

the use of this threat has been specifically

enjoined for years. Doe v. Shapiro, 302

F.Supp. 761 (D.Conn. 1969); Doe v. Harder,

310 F.Supp. 302 (D.Conn. 1970).

=, 3

state's interest and role in this nominally

"private" litigation is perhaps best gauged

by the assignment of an Assistant Attorney

General to represent the mother here and

at all other appellate proceedings in this

case.

The goal and effect of the proceed-

ing below is evident. To gain money,

Connecticut compelled the mother of an

illegitimate child to name a man as its

biological father, forced her to serve as

a nominal plaintiff in a suit against him,

and then paid for and directed prosecu-

tion of that suit. Upon the determination

that the man so named was the biological

father, the state was awarded appellant's

property.

Such enrichment is, of course, well

within the power of the state. However,

in order for any state to deprive a per-

@~) 3=

son of property, it is required by the

Fourteenth Amendment to exercise "due

process of law".

II. BECAUSE THE HEARING BELOW WAS

ALSO AN ATTEMPT BY CONNECTICUT

TO IMPOSE ON APPELLANT A FUNDA-

MENTAL RELATIONSHIP WHICH WOULD

DEPRIVE HIM OF PROTECTED LIBERTY,

CONNECTICUT WAS REQUIRED BY THE

DUE PROCESS CLAUSE TO TAKE

REASONABLE STEPS TO DETERMINE

WHETHER OR NOT THAT RELATIONSHIP

EXISTS.

Even if the state had not sought a

money judgment, it did seek to impose on

Appellant a fundamental relationship

whose existence he denied. Imposition of

that relationship would deprive Appellant

of constitutionally recognized liberty

interests.

When the state threatens to deprive

a person of a liberty interest, due pro-

cess requires that he be afforded a

-ideq

"hearing appropriate to the nature of the

case." Mullane v. Central Hanover Bank §&

Trust Co., 339 U.S. 306, 313 (1950). This

hearing must be conducted "at a meaning-

ful time and in a meaningful manner."

Armstrong v. Manzo, 380 U.S. 545, 552

(1965).

These guidelines, first established

in cases where the state was merely ad-

judicating the conflicting claims of

private persons, apply a fortiorari where

the state itself is seeking to deprive a

person of protected interests. The Court's

attention has recently been focused on the

formality required of such proceedings.

In certain circumstances, the opportunity

to cross-examine witnesses and offer

evidence was found necessary, see Goldberg

v. Kelly, 397 U.S. 254 (1970) (basic wel-

fare revocation), Morrissey v. Brewer,

~1 5

408 U.S. 471 (1972) (parole revocation),

while in others it was not, see Mathews

v. Eldridge, 424 U.S. 319 (1976) (revoca-

tion of Social Security disability

benefits). Where the government official

most involved might have too great an

interest to decide a matter impartially,

the government has been required to pro-

vide an independent person or tribunal to

make the final determination. Morrissey

v. Brewer, Supra at 471. By contrast,

where the official most involved may be

considered impartial, and has relevant

expertise, his determination alone may

be adequate. Parham v. J. R., 442 U.S.

584 (1979) (admission to state mental

hospital).

Common to all these cases has been

the fact-finding role of the state. Due

process does not permit the state, as it

ise

would a private litigant, to deprive

private persons of constitutionally pro-

tected interests without concern for fair-

ness to the party it is acting against.

Rather, it imposes on the state a duty,

varying in strength depending on the

nature of the case, to conduct an impartial

study of facts relevant to the person's

protected interest, and to act only in

accordance with those facts. Cf. Wood v.

Georgia, 370 U.S. 375, 390 (1962) (grand

jury). Even where the Court has found a

formal hearing unnecessary prior to a

definitive deprivation of liberty or

property, it has done so only because of

its judgment that due process was satis-

fied by the extensive fact-finding pro-

cedures undertaken -- and paid for -- by

the state. See, e.g., Mathews v. Eldridge,

Supra, at 335-339; Parham v. J. R., Supra,

at 613-617; Board of Curators, University

of Missouri v. Horowitz, 435 U.S. 78, 80-

82 (1978).

Connecticut has given putative fathers

the protection of a formal judicial hear-

ing. However, such protection at the

point of deprivation does not always ex-

haust the requirements of due process.

Here, where the state has assumed the

unique role of raising and then deciding

whether a fundamental family relationship

exists, it assumesa significant respon-

sibility for ensuring that it acts on the

basis of reliable facts. This responsibility

is not discharged by the single act of

forcing the mother to name some man as

her child's putative father. The state

owes more to both the child and the

putative father. Specifically, as we

«16

demonstrate below, it must ensure that a

simple, reasonably-priced, concededly re-

levant and frequently dispositive test be

conducted.

The state's responsibility as fact-

finder is paralleled by its obligation to

Appellant to assure him a meaningful hear-

ing. In this regard, the present case

closely resembles Boddie v. Connecticut,

401 U.S. 371 (1971). In Boddie, the

state had monopolized the means whereby

private persons could voluntarily form

or dissolve a marital relationship. Their

interest in such a relationship was called

"fundamental". Cf. United States v. Kras,

409 U.S. 434 (1973) (bankruptcy), Ortwein

v. Schwab, 410 U.S. 656 (1973) (welfare).

In the present case, the state has monop-

olized the means whereby a relationship

as basic as marriage can be created

involuntarily and irrevocably. The state

declares two individuals to be related by

blood: to be parent and child. But the

state does not merely preside over this

creation of a fundamental family relation-

ship, it actually institutes the proceed-

ing. Appellant here is thus like the

plaintiff in Boddie: he is forced by

the state to rely on state court proceed-

ings to protect his basic interests. 2/

Obviously, his opportunity to be heard

must be meaningful in fact, as well as in

theory.

2/m defend those interests Connecticut

requires a putative father not only to

appear in court, but also to produce

evidence beyond his own testimony, even

though as a practical matter, given the.

private nature of most sexual relation-

ships, such evidence (other than blood=-

type testing) will rarely exist. See

infra n.8.

=20=

Amici do not contend that the Constitu-

tion requires the state to pay for blood-

typing tests in all cases of disputed

paternity. In most, it is enough that the

rules of evidence at the ultimate hearing

allow the admission of such tests, as

Connecticut's rules do. See Conn. Gen. Stat.

§46b-168. However, where the putative father

cannot utilize such tests because of his

indigency, the state's constitutional

responsibility as fact-finder and as

guarantor of a meaningful hearing may re-

quire positive action on its part. To

determine whether due process requires the

provision of blood-type testing under these

exceptional circumstances, we consider

those factors that determine the require-

ments of due process in any context.

= en

III. ACCORDING TO THE TEST OF

MATHEWS V. ELDRIDGE, DUE

PROCESS REQUIRES THAT THE

REASONABLE COSTS OF BLOOD-

TYPE TESTING BE BORNE BY

THE STATE WHERE SUCH TEST-

ING WOULD OTHERWISE NOT BE

CONDUCTED BECAUSE OF THE

INDIGENCY OF THE PUTATIVE

FATHER.

Due prowess, this Court has long held,

"is flexible and calls for such procedural

protections as the particular situation

demands", Morrissey v. Brewer, Supra at

481.

Whether a particular procedural safe-

guard is constitutionally required is

determined by applying the three-part test

enunciated in Mathews v. Eldridge, supra

at 3353

First, the private interest

that will be affected by the

official action; second, the

risk of an erroneous depriva-

tion of such interest through

the procedures used, and the

probable value, if any, of

additional or substitute pro-

-22-

cedural safeguards; and

finally, the government's

interest, including the

function involved and the

fiscal and administrative

burdens that the additional

or substitute procedural

requirement would entail.

In the present case, state payment

for blood-type testing is necessitated by

this test under each of the three factors.=—

A. Both The Property And Liberty

Interests Of The Putative

Father Are Substantial.

The determination of biological father-

hood of an illegitimate child receiving

3/mathews was decided after Boddie v.

Connecticut and its progeny. Accordingly,

the Court has not expressly applied the

Mathews three-part test in earlier cases

deciding whether the state must provide

particular litigants the means, as well as

the opportunity, for particular procedures

required by due process. However, the

analysis in, and holdings of, those cases

fit comfortably within the Mathews test.

public assistance results in the financial

obligations specified in Conn. Gen. Stat.

§46b-171 and reviewed in Point I, supra.

The actual dollar sums flowing from those

obligations are quite substantial.

Appellant was found liable for a

judgment made up of "lying-in expenses"

($852.02), “accrued maintenance" extending

from the day of the child's birth to the

judgment ($5,790.26), and the "costs of

Suit plus reasonable -torney's fees"

($332.20). These sums total $6,974.48.

In addition, Appellant was ordered to make

payments to cover "child support" at the

rate of $163.58 a month. Computed to

cover the remaining fifteen and a half

years of the child's minority, these pay-

ments come to $30,425.88. Appellant was

thus ordered to pay a judgment of over

$37,000.00 -- all payable to the State of

Connecticut. Judgment and Order,

October 16, 1978.

Little of this substantial judgment

was ordered payable immediately. Apparent-

ly because of Appellant's indigency, the

court directed the payment of only $2.00

per month. Although this sum is minimal,

the judgment itself remains payable

throughout Appellant's life. It cannot

be discharged in bankruptcy, 11 U.S.C.

§523(a) (5), and cannot be escaped by mov-

ing to a different state, 42 U.S.C. §§651l-

662. If Appellant should cease to be

indigent, the court can order an increase

in his payments to the state. See Conn.

Gen. Stat. §46b-171. Failure to meet any

of the ordered payments may result in

imprisonment. for contempt of court. Id.

~25-

A period of up to six months of hard labor

could then be served, although still with-

out any discharge from his liability.

Conn. Gen. Stat. §46b-176.

At the time of the hearing, the only

practical method of demonstrating Appellant's

non-paternity, i.e., the blood-type test

(see Section IIIB, infra), was beyond his

means. Later, when he may have the income

to pay for such tests, it will be too late

to do so. Res judicata has fixed his legal

paternity for all time, so his new-found

income can only be devoted to the dis-

charge of the state's $37,000.00 judgment

against him.

More drastic than even this depriva-

tion of property, or the deprivation of ™

physical liberty with which Connecticut

threatens him for failure to satisfy the

judgment, is the deprivation of

“96<

fundamental liberty that the judgment

effects. Appellant has a constitution-

ally protected and fundamental interest

in choosing whether to associate with

others in a family. — In cases as

diverse as Roe v. Wade, 410 U.S. 113

(1973), Stanley v. Illinois, 405 U.S.

645 (1972), Moore v. East Cleveland, 431

U.S. 494 (1977), Zablocki v. Redhail,

434 U.S. 374 (1978), and Boddie v.

Connecticut, supra, the Court has pro-

tected the right of adults to engage in,

or separate themselves from, familial

relationships sanctioned by state power.

4/ amici do not, of course, dispute that

the state may impose obligations on real

fathers of illegitimate children.

=2Fa

Connecticut has acted through its

courts to impose on Appellant a familial

relationship, and consequent familial ob-

ligations, which he does not choose to assume

and for which he claims not to be respon-

sible. Under this Court's cases, assuming

the facts are as he alleges, he has a

fundamental right not to have a father-

relationship imposed on him. =

B. Paternity Actions Present

Substantial Risks Of Erro-

neous Deprivations Of

Liberty And Property. Blood-

type Testing Would Substan-

tially Reduce Those Risks.

Paternity hearings are plagued with

"coercion, corruption, perjury and indiffer-

3/tn United States v. Kras, 409 U.S. 434

(1973), this Court read Boddie v. Connecticut,

supra, to apply only where a civil litigant's

fundamental interest was at stake and where

the state had monopolized resolution of dis-

putes concerning that interest. This case

plainly satisfies both those criteria.

See generally, Tribe, American Constitutional

Law, at , 1118-1122.

=2Qe0

ence to the rights of the individual de fend-

ant." Family Study Commission, State of

Illinois, Report and Recommendations 55

(1969), as quoted -in H. Krause, Illegitimacy:

Law and Social Policy, 107 (1971). This

sad situation results from the insufficiency

of court time allotted such case, see id.,

and the common assumption that, where the

mother's and putative father's testimony

conflict, the former is in the right. See

id., Kelsaw v. Green, 6 Conn. Cir. 516, 276

A.2a 909 (1971); Holmes v. McLean, 5 Conn.

Cir. 476, 256 A.2d 849 (1969). Also

responsible is the peculiarity of the

issue being adjudicated: conception is a

biological event about which ordinarily

only two persons might have probative

evidence. Disinterested witnesses are a

rarity.

The extent of perjury and simple

=29=

ignorance manifested under these circun-

stances is understandable, if shocking.

One study found that fully "93% of the

tested parties lied in some respect...as

to their sexual relationship." Arthur &

Reid, “Utilizing The Lie Detector Technique

To Determine The Truth In Disputed Paternity

Cases,* 45 3. Crim. -&.C. & BiB. 213, 2:5

(1954), as quoted in Krause, Illegitimacy,

supra at 107. Results from another study

demonstrate that paternity findings are

grossly inaccurate even when based on ad-

missions of both sexual intercourse and

paternity: 18% of those men who volun-

tarily admitted paternity were not, in

fact, the fathers of the children in

question. Sussman & Schatkin, "Blood

Grouping Tests in Undisputed Paternity

Proceedings," 164 J.A.M.A. 249-50 (1957),

=30-

as cited in Krause, Illegitimacy, supra

at 108.

The problem of unreliability is espe-

cially serious when the state causes the

paternity hearing to be undertaken. Forced

to name a putative father, the mother may

wish to protect the actual father or pro-

tect herself from retribution:from him.

See Poulin, "Tllegitimacy and Family Privacy,"

70 Northwestern U. L. Rev. 910, 923-924

(1976). Alternatively, where she simply

does not know which of two or more men is

the biological father, she is nevertheless

constrained to name one and testify against

him. See Point I, supra.

Finally, the standard of proof used

in paternity hearings further aggravates

the problem. Previously, when paternity

was considered a criminal offense (as it

was in Connecticut), it had to be demon-

ale

strated beyond a reasonable doubt. See

Krause, Illegitimacy, supra at 109. Now,

usually reclassified as a civil action, the

measure of proof is generally that of a

"preponderance of the evidence." Id.;

see supra, at g-9 , 9/ Faced with "an accusa-

tion by the woman and a denial by the

defendant..., the judges feel constrained

to enter a finding of paternity." Family

Study Commission, supra.

In stark contrast to the unreliability

of human testimony concerning paternity

stands the well-developed technology of

blood-type testing. Such laboratory pro-

cedures compare various genetic qualities

6/whether that low standard satisfies the

requirements of due process is not at issue

in this case.

~33~=

of the blood of the child with that of its

mother and putative father. Where the

child's carries a characteristic that

neither of the others' has, the putative

father is absolutely excluded as the true

father. See generally, Krause, Illegitimacy,

Supra at 123-136; works cited infra at n.7.

So reliable is this method that some states

require that where non-paternity is so

indicated the issue of paternity must be

resolved accordingly. See, e.g., Calif.

Evid. Code, §895.

In 1976, a joint AMA-ABA committee

issued a report recognizing the precision

achieved by blood-type testing. Joint AMA-

ABA Guidelines: Present Status of Serologic

Testing in Problems of Disputed Parentage,

10 Family Law Quarterly 247 (1976). The

report also set forth a battery of seven

=~33<

tests recommended “for routine use". Id.

at 254. Statistically, more than nine out

of ten men -- 91 to 93% -- would be definite-

ly excluded through its application. Id.

at 257. 2/

Blood-type testing thus introduces the

element of scientific precision into an

adjudicatory context in which inaccuracy

is common. Instead of perjury or the un-

reliable testimony of interested parties,

it offers disinterested evidence. And

7/purther literature attesting to the

accuracy of blood-type testing includes:

Terasaki, "Resolution by HLA Testing of

1,0°0 Paternity Cases Not Excluded By ABO

Testing,” 16 J.Fam.L. 543 (1978); L.

Sussman, Paternity Testing by Blood Group-

ing (2a ed. 1976); and fitness and Kaye,

robabilities and Proof: Can HLA and

Blood Group Testing Prove Paternity?" 54

N.Y.U.L.Rev. 1131 (1979). A report of re-

sults surpassing 99% exclusion appears in

Henningsen, "Some Aspects of Blood Grouping

in Cases of Disputed Paternity in Denmark,”

2 Methods of Forensic Science 209, 224-25

(1963).

=34e

such evidence corrects an evidentiary im-

balance. Where, as in Connecticut, the

state's burden of proof is satisfied by

nothing more than the mother's allegation

and testimony, even if disputed by the

putative father, the father is in need of

some evidence beyond his denial to rebut

her claim. 8/ This -- if he is indeed

innocent of the charges -- can be supplied

by blood-type tests with 100% accuracy in

more than 90% of the cases.

8/connecticut provides, as a matter of

law, that the testimony of a putative

father is not, of itself, sufficient to

rebut the mother's accusations. See

Holmes v. McLean, 5 Conn. Cir. 476, 256

A.2d 849 (1969); Williams v. Gray, 4 Conn.

Cir. 326, 231 A.2d 285 (1967). Testimony

concerning earlier accusations is admissible

to prove the truth of those accusations

under a statutory exception to the usual

hearsay rules. See Conn. Gen. Stat.

§46b-160.

=35=

C. Blood-rype Testing Would

Purther Important State

Interests, At A Nominal

Cost, And With No Addi-

tional Administrative

Burdens.

State-paid blood-type tests where the

putative father is indigent will often save

the state money, and will facilitate accuracy

in determining the parentage of the child,

its ward.

Connecticut presumably resists pay-

ment for blood-type testing for indigent

putative fathers because of the cost in-

volved. Hospitals surveyed in an H.E.W.-