Amicus Curiae Brief — Rivera v. Minnich

No. 86-98

{iu the Supreme Court

of the United States

OCTOBER TERM, 1986

GREGORY L. RIVERA

Appellant,

JEAN MARIE MINNICH

Appellee.

On Appeal from the Supreme Court

of Pennsylvania

BRIEF AMICUS CURIAE OF THE

STATE OF OREGON

IN SUPPORT OF APPELLEE

DAVE FROHNMAYER

Attorney General of Oregon

WILLIAM F. GARY

Deputy Attorney General

VIRGINIA L. LINDER

Solicitor General

MICHAEL D. REYNOLDS

Assistant Solicitor General

ROBERT M. ATKINSON

Assistant Attorney General

400 Justice Building

Salem , Oregon 97310

Phone: (503) 378-4402

Council for Amicus Curiae

State of Oregon

——

ES ES

INTEREST OF AMICUS CURIAE

Amicus State of Oregon has filiation procedures similar in

some respects to those of Pennsylvania. For purposes of this

case, most important among those procedures is Oregon's

requirement, like Pennsylvania’s, that paternity be estab-

lished by a preponderance of the evidence. Or. Rev. Stat.

§ 109.155(2) (1985). Oregon appears in this case in order to

defend the balance struck by its state legislature, a balance

which accommodates the interests at stake in a way that is

both fair and constitutional.

TABLE OF CONTENTS

Interest of Amicus Curiae

Summary of Argument l

Argument

I. The Private Interests

Il. The Risk of Error |

Ill. The State’s Interests 1]

Conclusion 12

Ll]

TABLE OF AUTHORITIES

Page

Cases Cited

Addington v. Texas, 441 U.S. 418 (1979) 9,12

Fox v. Hohenshelt, 19 Or. App. 617, 528 P.2d 1376

(1974)

In re Winship, 397 U.S. 258 (1970) 810,11

Lassiter v. Department of Social Services, 452 U.S. 18

Sy weeseseeseeeveennn

Lehr v. Robertson, 463 U.S. 248 (1983) 3 4

Little v. Streater, 452 U.S. 1 (1981) 11

Mathews v. Fidridge, 424 U.S. 319 (1976) 2,12

Santosky v. Kramer, 455 U.S. 745 (1982) ..... .. 2,3,8,9,10-11,12

Sieben v. Richards, 8 Or. App. 487, 494 P.2d 253 (1972)

Speiser v. Randall, 357 U.S. 513 (1958) ....... .)

State ex rel. Oregon State Bar v. Wright, 280 Or. 713, 573

en PE OEE 2ccicctesccctdacesecessene

State v. Timmons, 75 Or. App. 678, 706 P.2d 1018, re

denied, 300 Or. 451, 712 P.2d 110 (1985) 6

Wagner v. Savage. as Adm’r, 195 Or. 128, 244 P.2d 161

Te . cc ldeeecueeebeneeeee wes

Statutory Provisions

23 Pa. Cons. Stat. Ann. § 4345 (1986)

Or. Rev. Stat. § 109.010 (1985) ........ 6

Or. Rev. Stat. § 109.125(1) (1985) 3

Or. Rev. Stat. § 109.155(2) (1985)

Or. Rev. Stat. § 109.155(4) (1985) 6

163.555(1) (1985)

SI?

Or. Rev. Stat.

TABLE OF AUTHORITIES—Continued

Page

Other Authorities

Bane and Ellwood, “The Dynamics of Dependence: The

Routes to Self-Sufficiency,” published by Urban

Systems Research and Engineering, Inc., under

H.H.S. contract No. HHS-100-82-0038, June

MD non ccce 0006606 6660808546588 ENN S 446 056068

Dukeminier and Johanson FAMILY WEALTH TRANSAC-

rions: WILLS. TRUSTS, FUTURE INTERESTS,

AND ESTATE PLANNING (1972) .....-cccccccccccccces 5

Oberheu, Howard, “Time On Assistance,” H.H.S. Staff

Report, February, 1982, S.S.A. Publication No.

en pce edeeeebseeheuee Se SEEEEEOCSCOCER 6-7

vl

l

SUMMARY OF ARGUMENT

Contrary to appellant’s argument, the Due Process Clause

does not mandate a “clear and convincing” standard of proof

in filiation proceedings. Appellant’s argument rests in large

part on the assertion that filiation is “simply the reverse’ of

termination of parental rights for constitutional pur-

poses. This attempted equation is flawed because the inter-

ests involved in the two types of proceedings are

fundamentally different. Appellant’s asserted interests all

reduce to economics: he seeks to avoid the financial burden

the mother seeks to impose. The mother’s interest in obtain-

ing financial assistance in caring for her child is similarly

economic in nature. The child’s interest, like the mother’s, is

in obtaining support from the father. Thus, in a filiation

proceeding, the interests on both sides of the litigation are

financial. They therefore are of equal constitutional signifi-

cance, and any justification for a heightened standard of proof

evaporates.

The mandate for placing a greater burden on one party

stems from the recognition that the other party has a constitu-

tionally protected interest of greater import at stake. For

example, in a criminal trial or involuntary mental commit-

ment proceeding, the defendant’s physical liberty is at

stake. In a termination proceeding the parents’ familial lib-

erty is at risk. In these examples, the government acts in its

sovereign capacity to withdraw or withhold liberty. An

erroneous “deprivation” only occurs when the state prevails in

a case it should lose. Due process mandates an elevated

standard of proof in order to reduce the risk of an erroneous

deprivation. The higher standard of proof does not reduce the

risk of error in the factfinding process; it merely tilts the risk

of error away from the individual. In order to provide the

individual greater protection from erroneous government

2

interference with constitutional liberty, the government must

bear a greater share of the risk of error.

Unlike criminal prosecutions, civil commitment proceed-

ings or termination cases, a filiation proceeding such as the

present case is not a unilateral attempt by the government to

withdraw constitutional liberty. In a filiation proceeding

individual interests are at stake on both sides of the litiga-

tion. The interests of the private litigants are of equal or

approximately equal significance. An erroneous victory for

either party necessarily results in an erroneous interference

with the losing party’s interests. To elevate the standard of

proof in cases with competing individual interests of equal

weight on each side of the proceeding would unjustifiably

favor one party over the other. Rather than mandating an

elevated standard of proof, due process might well mandate a

standard that avoids such essentially arbitrary favoritism. At

8 minimum, states are not constitutionally foreclosed from

providing dispute resolution mechanisms that treat the inter-

ests of all parties in a filiation proceeding equally and which

evenly apportion the risk of error.

ARGUMENT

The Due Process Clause of the Fourteenth Amendment

commands that “No State shall. . . deprive any person of life,

liberty, or property, without due process of law.” In Santosky

v. Kramer, 455 U.S. 745 (1982), this Court invoked the

familiar three-part balancing test of Mathews v. Eldridge, 424

U.S. 319 (1976),' to conclude that, in parental rights termina-

! [I]dentification of the specific dictates of due process generally requires

consideraton of three distinct factors: first, the private interest that will be

affected by the officiai action; second, the risk of an erroneous deprivation of

such interest through the procedures used, and the probable value, if any, of

additional or substitute procedural 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.

Mathews, 424 U.S. at 335.

3

tion proceedings, due process mandates the heightened “‘clear

and convincing” standard of proof. Application of the Math

ews test to filiation proceedings demonstrates that due process

does not require and may prohibit imposition of tha elevated

standard.’

I. The Private Interests.

A. The putative father’s interests are purely eco-

nomic and do not implicate the familial rights

at stake in Santosky.

Appellant’s assertion that paternity proceedings are “sim-

ply the reverse of the termination of parental rights proceed-

ings considered in Santosky,” (App. Br. 12), is insupport-

able. Termination of parental rights works “a unique kind of

deprivation.” Santosky, supra, 455 U.S. at 759, quoting

Lassiter v. Department of Social Services, 452 U.S. 18, 27

(1981). The “deprivation” that results from a finding of

paternity does not implicate the constellation of constitu-

tionally protected familial values at stake in termina-

tions. Rather, the putative father’s interests are purely

economic.

This Court recently has noted the difference between the

constitutional significance of a mere biological link and the

greater weight given to a fully developed familial rela-

tionship. In Lehr v. Robertson, 463 U.S. 248 (1983), the Court

considered a challenge to a New York statutory scheme that

permitted the adoption of illegitimate children without notice

2 Our analysis is based on the situation presented by this and the

majority of filiation proceedings, where the mother, either independently or

with the assistance of the state, sues the putative father asserting that he is

the father of her child. In addition to suits brought by the mother, however,

Oregon law permits filiation proceedings to be filed, inter alia, by the child,

or by a man claiming to be the father of a child born out of wedlock or of an

unborn child who may be born out of wedlock. Or. Rev. Stat. § 109.125(1)

(1985)

4

to putative fathers who had not taken steps either to exercise

parental rights or to accept parental responsibilities. The

Court stressed the linkage between right and duty, and went

on to emphasize the importance of love and emotional attach-

ments in the creation of constitutionally protected familial

rights. 463 U.S. at 257-61.

The difference between the developed parent-child

relationship that was implicated in Stanley [v. /llinois,

405 U.S. 645 (1972)] and Caban [v. Mohammed, 441

U.S. 380 (1979)], and the potential relationship

involved in Quilloin [v. Walcott, 434 U.S. 246 (1978)]

and this case, is both clear and significant. When an

unwed father demonstrates a full commitment to the

responsibilities of parenthood by “com|{ing] forward to

participate in the rearing of his child,”. . . his interest

in personal contact with his child acquires substantial

protection under the Due Process Clause. At that

point it may be said that he “act[s] as a father toward

his children.” . . . But the mere existence of a biolog-

ical jink does not merit equivalent constitutional pro-

tection. The actions of judges neither create nor sever

genetic bonds. “[T]he importance of the familial rela-

tionship, to the individuals involved and to the society,

stems from the emotional attachments that derive

from the intimacy of daily association, and from the

role it plays in ‘promot{ing] a way of life’ through the

instruction of children . . . as well as from the fact of

blood relationship.”

463 U.S. at 261 (citations and footnote omitted),

As the Court’s statement suggests, fully developed familial

relationships involving the assumption of parental duties and

mutual love and affection are entitled to a significantly greater

level of due process protection than the inchoate relationship

at issue in this case. Appellant’s assertion that his interests

are equal to those of a parent facing termination is, thus,

incorrect as a general proposition. His more specific proposi-

tions are no more persuasive.

Despite his attempts to suggest that he has a multiplicity

of interests at stake (App. Br. 7-10), the putative father’s

constitutionally cognizable interest in a paternity proceeding

is limited to property: his funds will be chargeable for the

child’s benefit. It is undoubtedly true that the support obliga-

tion that will flow from an adjudication of paternity, including

provision of medical care, wage garnishment, et cetera, can be

substantial. The same, of course, may be said for the judg-

ment following a determination of negligence in an ordinary

tort action. The magnitude of the financial liability simply

does not govern the standard of proof.

Appellant also asserts that the child may have rights

against his estate through the laws of intestacy. In Oregon, as

in all states except Louisiana, a parent may avoid this pos-

sibility by the simple expedient of writing a will and expressly

disinheriting any child. See Sieben v. Richards, 8 Or. App.

487, 494 P.2d 253 (1972); see generally J. Dukeminier and 3S.

Johanson FAMILY WEALTH TRANSACTIONS: WILLS,

TRUSTS, FUTURE INTERESTS, AND ESTATE PLANNING 555-56

(1972) (in all states except Louisiana there is no statutory

protection against disinheritance). The appellant is attempt-

ing to increase the weight of his property interest by suggest-

ing that he is entitled to constitutional protection against his

own future lack of planning.

Appellant also relies on the potential deprivation of liberty

that could result from imprisonment for non-payment of his

support obligation. (App. Br. 8-9). That interest is derivative

only: it only arises in the event that the father-elect fails

without cause to meet his economic obligations. In Oregon, as

in Pennsylvania, see 23 Pa. Cons. Stat. Ann. § 4345 (1986), an

adjudication of contempt requires wilful disobediance of a

court order. See State ex rel. Oregon State Bar v. Wright, 280

Or. 713, 573 P.2d 294 (1977). Similarly, criminal non-support

requires refusal or neglect to support “‘without lawful

excuse.” Or. Rev. Stat. § 163.555(1) (1985). Financial

inability to pay support that is not of a defendant’s own

6

making is a lawful excuse. See State v. Timmons, 75 Or. App.

678, 706 P.2d 1018, rev. denied, 300 Or. 451, 712 P.2d 110

(1985). Thus, the possibility of incarceration is real only if

appellant defies the court’s order without justification. His

future irresponsibility, and its legitimate consequences,

should not be a valid reason for granting him enhanced

constitutional protection.

B. The mother’s interests are entitled to the same

level of constitutional protection as the

father’s.

The plaintiff-mother’s interests, like the putative father’s,

are primarily economic. She seeks financial assistance in

caring for her child. That assistance can take the form of

monthly support payments, medical insurance and such other

support as state law may provide.*

Even in those cases where the state brings the filiation

proceeding on the mother’s behalf for the purposes of recoup-

ing public assistance paid to the child, the mother’s interest

remains substantial. The average time that a mother receives

Aid to Dependent Children is brief, leaving the father-elect as

a direct resource to the mother and child for many years.‘

‘Or. Rev. Stat. § 109.155(4) (1985) provides that after a determination

of paternity:

The court shall have the power to order either parent to pay

such sum as it deems appropriate for the past and future support

and maintenance of the child during its minority and while the

child is attending school and the reasonable and necessary expenses

incurred or to be incurred in connection with prenatal care,

expenses attendant with the birth and postnatal care. The court

may grant the prevailing party reasonable costs of suit, and reason-

able attorney fees at trial and on appeal.

Or. Rev. Stat. § 109.010 (1985) provides, in pertinent part:

Parents are bound to maintain their children who are poor and

unable to work to maintain themselves... .

* Studies conducted for the Department of Health and Human Services

confirm that the average family receives Aid to Dependent Children for less

than two years. See Oberheu, Howard, “Time On Assistance,” H.H.S. Staff

(Footnote continued on next page)

i

The mother’s interest is, in effect, the mirror image of the

father’s. Every collar that he contributes to the cost of child

raising is a dollar not otherwise available to the mother or

child. The father’s liberty is at risk if he fails to support the

child to the extent of his capability because he may be found to

be in contempt or guilty of criminal non-support; but so, too,

is the mother’s liberty at risk, for she also is subject to the

statutory obligation to support the child. A finding of pater-

nity is final and may not be relitigated; but so, too, by

operation of res judicata, is a finding of non-paternity.*

The plaintiff mother is in the same position as any other

civil litigant: if the defendant is the biological father of her

child she is entitled, as a matter of state law, to receive his

contributory assistance in defraying the substantial economic

costs of raising their child. Her rights are no less substantial

than his and entitled to no less protection.

C. Raising the standard of proof increases the

likelihood of an erroneous deprivation of the

child’s interest in gaining a source of support.

The child’s primary interest is in obtaining support from

the father. Children obviously are not well served by

erroneous findings of non-paternity, which deprive them not

(Footnote continued from previous page)

Report, February, 1982, S.S.A. Publication No. 13-11979 (of 411,000 A.D.C.

families whose grants were opened January through March of 1976, only 41.7

percent continuously received benefits through March 1977); Bane and

Ellwood, “The Dynamics of Dependence: The Routes to Self-Sufficiency,”

published by Urban Systems Research and Engineering, Inc., under H.H.S.

contract No. HHS-100-82-0038, June 1983 (of 676 A.D.C. families who

received grants of at least $250 per month and were followed from 1968

through 1979, one-half received A.D.C. less than two years, two-thirds were

off A.D.C. within four years and only seventeen percent remained on

assistance for eight years.)

5 See Fox v. Hohenshelt, 19 Or. App. 617, 528 P.2d 1376 (1974) (filiation

proceedings are suits in equity); and Wagner v. Savage, as Adm’r, 195 Or.

128, 147, 244 P.2d 161 (1952) (principles of res judicata apply to suits in

equity).

8

only of support, but also of the opportunity to know their

heritage. Arguably, an erroneous finding of paternity, while

providing a source of support, may be undesirable to the child

for psychological reasons. There is, however, no principled

basis for contending that the child is better served by decreas-

ing the risk of erroneous findings of paternity at the cost of

increasing the risk of erroneous findings of non-paternity.®

Because a heightened standard of proof increases the risk

of erroneous findings of non-paternity at the child’s expense,

consideration of the child’s interests militates strongly

against the clear and convincing standard.

II. The Risk of Error.

Two potential errors that might occur in any given judicial

proceeding should be distinguished. The first is the risk of an

erroneous decision; the second is the risk of an erroneous

deprivation. An erroneous decision occurs whenever the fact-

finding process fails. When an innocent defendant is con-

victed, when a guilty defendant goes free or when a mer-

itorious defense is rejected by a jury, there is an erroneous

decision. A mistake is made. See In re Winship, 397 U.S. 358,

370-71 (1970) (Harlan, J., concurring). In the due process

context, however, an erroneous deprivation eccurs only when

an erroneous decision impairs a constitutionally protected

interest in life, liberty or property.

In a termination of parental rights case, only one party,

the parent, has a constitutionally protected interest at

stake. Santosky v. Kramer, supra, 455 U.S. at 759-61,

765. The state, acting in its sovereign capacity, seeks to

deprive the individual of that interest. Similarly, in a criminal

prosecution, the only constitutionally protected interest at

risk is the defendant’s liberty. In both contexts, the state may

6 In fact, it is reasonable to assert that the child is better served by an

erroneous finding of paternity than an erroneous finding of non-pater-

nity. The former at least provides a potential source of financial support.

9

have compelling reasons for acting, but the character of the

proceeding is essentially unilateral. The government acts

against an individual. An erroneous deprivation results only

when an innocent defendant is convicted or a fit parent's

rights are terminated. Acquittals of guilty defendants or

failures to terminate the rights of unfit parents, on the other

hand, although plainly “erroneous” decisions with undesirable

social consequences, do not result in erroneous deprivations of

interests protected by the Due Process Clause.

Because a criminal conviction or a parental rights termi-

nation works a unique and grievous form of deprivation to the

defendant, due process mandates an elevated standard of

proof. The state must assume a greater share of the risk of an

erroneous decision in order to reduce the risk of an erroneous

deprivation. See Speiser v. Randall, 357 U.S. 513, 525-26

(1958).

However, when litigation involves competing private

interests of equal or approximately equal weight, a higher

standard of proof serves no useful constitutional pur-

pose. Any advantage accorded to one party by changing the

standard of proof necessarily imposes a corresponding disad-

vantage on the other party. For example, in a civi’ action for

money damages, a wrongful verdict for either private party

results in the erroneous deprivation of the other party's

property. Because the litigants’ interests are of equal weight

in the constitutional scales—both risk only property—the

risk of error properly is distributed in a “roughly equal

fashion.” Santosky v. Kramer, supra, 455 U.S. at 755, quoting

Addington v. Texas, 441 U.S. 418, 423 (1979).’

It is the nature of the interest, not its significance to the individual

plaintiff or defendant, that is germane. Thus, the standard of proof will not

vary because one civil defendant can and another cannot afford the financial

consequences of losing. See Santosky v. Kramer, supra, 455 U.S. at 757

(standard of proof must be based on the generality of cases, not on case-by-

case exceptions).

10

As discussed above, in a filiation proceeding a finding of

paternity results in a deprivation of the putative father’s

property. A finding of non-paternity works a virtually identi-

cal deprivation of the mother and child’s interest in receiving

support. While elevating the standard of proof likely would

reduce the number of instances in which a putative father

erroneously would be found to be the father and hence reduce

the risk of erroneous deprivations of the father’s property, it

would increase the number of instances in which the actual

father would escape responsibility, thus increasing the risk of

erroneous deprivations of the mother’s interest in the receipt

of support. Justice Harlan made our point:

In a lawsuit between two parties, a factual error can

make a difference in one of two ways. First, it can

result in a judgment in favor of the plaintiff when the

true facts warrant a judgment for the defendant. The

analogue in a criminal case would be the conviction of

an innocent man. On the other hand, an erroneous

factual determination can result in a judgment for the

defendant when the true facts justify a judgment in

plaintiff's favor. The criminal analogue would be the

acquittal of a guilty man.

The standard of proof influences the relative fre-

quency of these two types of erroneous outcomes. If,

for example, the standard of proof for a criminal trial

were a preponderence of the evidence rather than

proof beyond a reasonable doubt, there would be a

smaller risk of factual errors that result in freeing

guilty persons, but a far greater risk of factual errors

that result in convicting the innocent. Because the

standard of proof affects the comparative frequency of

these two types of erroneous outcomes, the choice of

the standard to be applied in a particular kind of

litigation should, in a rational world, reflect an assess-

ment of the comparative social disutility of each.

In re Winship, supra, 397 U.S. 358, 370-71 (1970) (Harlan, J.,

concurring).* See also Santosky v. Kramer, supra, 455 U.S.

* This discussion was described by Justice Harlan as a “corollary” of his

(Footnote continued on next page)

1]

785-791 (Rehnquist, J., dissenting).

In filiation proceedings the comparative social disutility of

erroneous decisions is in relative equipoise. Because there is

no rational basis for preferring the putative father’s rights

over those of the mother and child, a heightened burden of

proof creates an unjustified inequality in the risk of

error. Due process does not mandate inequality in the burden

of proof in addition to the inequality the plaintiff-mother

faces in her need to preponderate.®

III. The State’s Interests.

In prior cases where this Court has considered standards

of proof, government has been a direct adversary to an

individual citizen whose constitutionally protected interests

were at risk. In filiation cases the state either stands in the

shoes of the mother, seeking to assert her property interest or,

in cases brought directly by the mother, plays a more neutral

role. In either situation, however, the state’s chief interest lies

in providing a fair mechanism for resolving disputes of fact in

which interested individuals share equally in the risk of error.

Appellant asserts that the mother and the state have no

interest in an erroneous determination of paternity. (App. Br.

13). This assertion incorrectly ignores the interest, shared by

the mother, child and state, in avoiding incorrect findings of

non-paternity—an interest that would be impaired by the

elevated standard the appellant urges. While it would be

y (Footnote continued from previous page)

often-cited statement that the function of a standard of proof is “to instruct

the factfinder concerning the degree of confidence our society thinks he

should have in the correctness of factual conclusions for a particular type of

adjudication.” Jn re Winship, supra, 397 U.S. at 370.

It goes without saying that the risk of error in filiation proceedings is

substantially reduced in comparison with termination cases by the nature of

the evidence. As this Court noted in Santosky, the evidence relied on in

terminations is imprecise and subjective. 455 U.S. at 762. In filiation

proceedings, by contrast, blood test evidence is objective and highly reli-

able. See Little v. Streater, 452 U.S. 1, 6 et seg. (1981).

12

naive to suggest that many litigants do not desire an erroneous

decision that works to their benefit, no one can assert a

legitimate or constitutionally protected interest in an

erroneous result. This is as true of private litigants, whatever

the interest at stake, as it is of the state. Thus, it adds nothing

to the analysis to assert that the state has no interest in an

erroneous determination of paternity. The state has equally

little interest in an erroneous determination of non-pater-

nity. The putative father, also, cannot assert a legitimate

interest in an erroneous verdict of non-paternity.

In Santosky the Court noted that it would be incorrect to

presume at the factfinding stage of a parental termination

case that the parents and the child are adversaries. The Court

went on to state:

[U]jntil the State proves parental unfitness, the child

and his parents share a vital interest in preventing

erroneous termination of their natural rela-

tionship. Thus, at the factfinding, the interests of the

child and his natural parents coincide to favor use of

error-reducing procedures.

455 U.S. at 760-61 (footnote omitted).

It is not accurate to describe an elevated standard of proof

as an “error-reducing” procedure. As discussed above, an

elevated standard of proof does not reduce the risk of error, it

merely shifts it from one side to the other. A heightened

burden of proof, while decreasing erroneous determinations of

paternity, inevitably would increase the number of erroneous

determinations of non-paternity. The state’s legitimate inter-

est in providing a fair mechanism for resolving disputes can be

realized only by an equal distribution of the risk of error. A

preponderance standard best accomplishes that result. See

Addington v. Texas, 441 U.S. 418, 423 (1979).

CONCLUSION

Application of the Mathews v. Eldridge criteria in light of

all of the relevant private interests at stake demonstrates that

13

a clear and convincing standard does not decrease the overall

risk of erroneous deprivation of those interests in filiation

proceedings. Accordingly, the decision of the Supreme Court

of Pennsylvania upholding the constitutionality of the pre

ponderance standard of proof should be affirmed.

Respectfully submitted,

DAVE FROHNMAYER

Attorney General of Oregon

WILLIAM F. GARY

Deputy Attorney General

VIRGINIA L. LINDER

Solicitor General

MICHAEL D. REYNOLDS

Assistant Solicitor General

ROBERT M. ATKINSON

Assistant Attorney General

Counsel for Amicus Curiae