Petition for Writ of Certiorari — South Dakota Department of Social Services ex rel. Dotson v. Serr

JS Seen | as, ws

OFFIGE OF THE CLERK

No.

IN THE

SUPREME COURT OF '3E UNITED STATES

OCTOBER TERM, 1993

STATE OF SOUTH DAKOTA, BY AND

THROUGH THE DEPARTMENT OF

SOCIAL SERVICES EX REL.

GAIL A. DOTSON, IN HER OWN

BEHALF AND ON BEHALF OF JARED DOTSON,

A MINOR CHILD,

Petitioner,

Vv.

MERYL D. SERR,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF

SOUTH DAKOTA

MARK BARNETT

ATTORNEY GENERAL

State of South Dakota

Counsel of Record

John P. Guhin

Deputy Attorney General

Patricia J. Froning

Assistant Attorney General

500 East Capitol

Pierre, SD 57501-5070

Telephone: (605) 773-3215

Attorneys for Petitioner

QUESTION PRESENTED

WHETHER A TWO-YEAR STATUTE OF LIMITATIONS

ON PATERNITY ACTIONS MAY BE APPLIED TO SHIELD

A PUTATIVE FATHKR FROM SUIT, CONSISTENT WITH

THE EQUAL PROTECTION AND DUE PROCESS CLAUSES

OF THE UNITED STATES CONSTITUTION?

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED 1

TABLE OF AUTHORITIES aa5

OPINIONS BELOW 1

JURISDICTIONAL STATEMENT 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS 3

STATEMENT OF THE CASE 5

FEDERAL QUESTION PRESENTED BELOW 8

REASON FOR GRANTING THE WRIT 13

CONCLUSION 32

APPENDIX

TABLE OF AUTHORITIES

CASES : PAGE

Campbell v. Holt, 115 U.S. 620 _ =-

(1885) iy

Chase Securities Corp. v.

Donaldson, 325 U.S. 304

(1945) ave ae 29, 30

Clark v. Jeter, 486 U.S. 456

(1988) passim

Electrical Workers v. Robbins &

Myers, Inc., 429 U.S. 229 29

(1976)

G.D. Searle & Co. vy. Cohn,

455 U.S. 404 (1982) 29

Mills v. Habluetzel,

456 U.S. 91 (1982) passim

Pickett v. Brown, 462 U.S. 1

(1983) passim

State v. Serr, 506 N.W.2d 421

(S.D. 1993) passim

Weber v. Aetna Casualty and

Surety Co., 406 U.S. 164

(1972) a0, Aa2

CONSTITUTIONAL PROVISIONS:

U.S. Const. art. XIV, § 1 3

(111)

STATUTORY REFERENCES :

45 C.F7.R.

26 U.S.C.

42 U.S.C.

1983 S.D.

1986 S.D.

1989 S.D.

SDC 1939

§ 302.70(5)

§ 1257

§§ 601, 666

Sess. L. ch.

Sess. L. ch.

Sess. L. ch.

S 37.4404

SDCL 15-2-22 (1)

SDCL 25-8-9

SDCL 29-1-15.1

(1)

(1988)

207, § 2

218, § 57

222

(iv)

32

23

passim

24

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

STATE OF SOUTH DAKOTA, BY AND

THROUGH THE DEPARTMENT OF

SOCIAL SERVICES EX REL.

GAIL A. DOTSON, IN HER OWN

BEHALF AND ON BEHALF OF JARED DOTSON,

A MINOR CHILD,

Petitioner,

.

MERYL D. SERR,

Respondent.

The Petitioner, State of South Dakota,

respectfully prays that a writ of certiorari

issue to review the judgment and Opinion of

the Supreme Court of the State of South Dakota

entered in the above-entitled proceeding on

October 6, 1993.

OPINIONS BELOW

The opinion of the South Dakota Supreme

Court was delivered On October 6, 1993; it

2

appears at 506 N.W.2d 421 (S.D. 1993) and is

printed in the Appendix at A-2. The Findings

of Fact and Conclusions of Law of the circuit

court relating to the statute of limitations

defense are set out at Appendix A-21, and the

accompanying Order Denying Motion to Dismiss

is set out at Appendix A-29. Findings of Fact

and Conclusions of Law on the merits are set

out at Appendix A-32 and the Judgment of

Paternity and Support is set out at Appendix

A-43. Additional Findings of Fact and

Conclusions of Law were thereafter entered,

Appendix A-46, and an Amended Judgment of

Paternity and Support was entered on the same

day. Appendix A-54. A Second Amended

Judgment of Paternity and Support was

subsequently entered. Appendix A-58.

, JURISDICTIONAL STATEMENT

The opinion of the South Dakota Supreme

Court was rendered on October 6, 1993. State

v. Serr, 506 N.W.2d 421 (S.D. 1993); Appendix

J

at A-2. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution, art. XIV, § 1

states:

No State ... shall... 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.

The statute at issue here, SDCL 25-8-9, as

Originally enacted in 1939 (SDC 1939

§ 37.2131) and as effective in 1978 states’:

Proceedings to enforce the

obligation of the father shall not

be brought after the lapse of more

than two years from the birth of the

child, unless paternity has been

judicially established, or has been

acknowledged by tthe father in

‘A two-year statute of limitations on

enforcing the child Support obligation was

enacted in 1923 (SL 1923, ch. 295, § 32) and

was amended in 1931 (SL 1931, ch. 263) to

provide that the time spent by the putative

father outside the state would not be included

in the computation. The 1939 version referred

to above did not include the language which

had been added in 1931.

i

4

writing or by the furnishing of

support.

SDCL 25-8-9, as revised in 1983 (1983 S.D.

Sess. L. ch. 207, § 2) states:

Proceedings to enforce the

obligation of the father may not be

brought after the lapse of more than

six years from the birth of the

child, unless paternity has been

judicially established, or has been

acknowledged by the father in

writing or by the furnishing of

support.

SDCL 25-8-9, as revised in 1986 (1986

S.D. Sess. L. ch. 218, § 57) states:

Proceedings to establish paternity

and enforce the obligation of the

father may be brought at any time

prior to the eighteenth birthday of

the child. The provisions of this

section apply to all children who

have been born since July 1, 1968.

SDCL 25-8-9, as revised in 1989 (1989 S.D.

Sess. L. ch. 222) states:

Proceedings to establish paternity

and enforce the obligation of the

father may be brought at any time

before the eighteenth birthday of

the child.

5

STATEMENT OF THE CASE

In this case, the State cf South

Dakota, on behalf of a minor child, seeks

review of the determination of the Supreme

Court of the State of South Dakota that a two-

year statute of limitations in effect in 1978

could bar a paternity action against a

putative father brought Slightly less than

thirteen years after the birth of the child.

The relevant facts are as follows.

On June 6, 1978, Gail Dotson gave birth to a

son, Jared Dotson, in Pennsylvania. State v.

Serr, 506 N.W.2d at 422; Appendix A-3. The

putative father, Respondent Meryl D. Serr, had

no contact with Ms. Dotson or the child until

1988 or 1989 when Ms. Dotson made contact with

Mr. Serr by way of a letter and photograph of

Jared Dotson. State v. Serr, 506 N.W.2d at

422; Appendix A-3. In December of 1989,

Ms. Dotson began to receive Aid to Dependant

Children in Pennsylvania and applied for child

'

6

Support services under Pennsylvania’s Revised

Uniform Reciprocal Enforcement of Support Act.

A Pennsyivania court determined that Mr. Serr

could owe a duty of support to Jared Dotson.

State Vv. Serr, 506 N.W.2d at 422;

Appendix A-4. Thereafter, pursuant to South

Dakota’s Revised Reciprocal Enforcement of

Support Act, paternity petitions were

initiated in South Dakota circuit court to

establish Mr. Serr’s paternity and to compel

the support. Id.

The circuit court found that Ms. Dotson

and Mr. Serr had regular sexual intercourse

during the relevant time period, see Appendix

A-38, and also found that the Defendant,

Mr. Serr, was the "biological father of Jared

Dotson." Appendix A-39. The circuit court

also concluded that the "statute of

limitations is not applicable to the Defendant

as an affirmative defense." Appendix A-41.

7

Defendant did not take issue with the

circuit court’s factual findings in the state

Supreme Court, see Appellant’s Brief, Appendix

A-84, but did appeal on legal grounds and the

State Supreme Court reversed. As noted above,

when the minor child was born in 1978, South

Dakota statute provided a two-year statute of

limitations on a paternity action "unless

paternity has been judicially established, or

has been acknowledged by the father in writing

or by the furnishing of support." SDCL 25-8-9

(as effective in 1978) (set out above at oS).

The Supreme Court impliedly held, in a brief

decision, that the two-year statute of

limitations, as it existed in 1978, barred any

action for paternity or support two years

after the birth of the child. See State v.

Serr, 506 N.W.2d at 422-423; Appendix A-4 to

A-5, Ae7. The Court further held that

subsequent South Dakota legislation which

extended the time for bringing paternity

8

actions would not be construed to. be

retroactive because revival of "previously

time-barred claims impermissibly interferes

with a defendant’s vested rights and violates

due process," State v. Serr, 506 N.W.2d at

423; Appendix A-8 to 9, and because the

legislative intent to have the statutes apply

retroactively did not plainly appear. State

v. Serr, 506 N.W.2d at 423; Appendix A-8.

FEDERAL QUESTION PRESENTED BELOW

The constitutional question relating to

the statute of limitations was adequately

raised in the state Supreme Court.? Mr. Serr,

as Appellant in the South Dakota Supreme

Court, argued that the State and "the trial

court below relied heavenly [sic] on the

Supreme Court decision in the case of Pickett

"See, as to the proceedings in the circuit

court, an excerpt from the State’s trial brief

at Appendix A-74 and especially A-76, and

State ex rel. Weidner v. Tyburec (lst Jud.

Cir. August 3, 1989) at A-64, which was relied

upon in the State’s trial brief.

vV._Brown, 462 U.S. 1..." Appellant’s

Brief; Appendix A-90. Mr. Serr also argued

that the South Dakota statute was

distinguishable from the Tennessee statute

found "violative of the equal protection

clause" in Pickett. Appendix A-91.

The State, as Appellee before the South

Dakota Supreme Court, argued that the "Equal

Protection rights concerning a child’s

interest should be paramount to a putative

father’s claim of due process, by applying

SDCL 25-8-9 retroactively." Appendix A-108.

The State also quoted the Mills v. Habluetzel,

456 U.S. 91 (1982), "standard in the context

of paternity actions." See Appendix A-111 to

A-112.

Perhaps most Significantly for present

purposes, the State set out the argument of

Mr. Serr that the "1978 version of SDCL 25-8-9

[the two-year statute of limitations] should

apply because the State and its citizenry need

10

to be protected _ from, ‘the burden of

litigating state [sic] claims.’" Appendix A-

112. The State refuted this argument through

an analysis of Clark v. Jeter, noting that the

case had held the Pennsylvania six-year

Statute of limitations unconstitutional,

Appendix A-112, and briefly comparing the 1978

South Dakota statute with Pennsylvania’s. See

Appendix A-113, n. 1. Finally, the State

quoted Pickett, 406 U.S. at 7-8, which in turn

quoted Weber v. Aetna Casualty and Surety Co.,

406 U.S. 164, 175 (1972), including language

that "the Equal Protection Clause does enable

us to strike down discriminatory laws relating

to the status of birth. .. ." Appendix A-

445.

The South Dakota Supreme Court

necessarily had to reject this constitutional

argument to come to the conclusion that the

1978 two-year statute of limitations could

constitutionally be applied in this case. See

ac aaa ala

11

State _ vy, Serr, 506 N.W.2d at 422, 423;

Appendix A-5, A-7.

Other indicators also make it Clear that

the South Dakota Supreme Court considered

whether the two-year statute of limitations in

effect in 1978 was constitutional. The three

members of the majority stated:

Dotson did not specifically raise

any constitutional issues on her own

behalf. However, her brief

discussed several U.S. Supreme Court

decisions concerning Equal

Protection and paternity/statute of

limitation issues, all of which have

been distinguished by this writing

and our reliance upon and discussion

in Hove.

State v. Serr, 506 N.W.2d at 423 n. 1;

Appendix A-9, n. 1.

The majority particularly drew attention

to Pickett v. Brown, 462 U.S. 1 (1983)

asserting (incorrectly) that it had not

revived a cause of action which was previously

barred. State v. Serr, 506 N.W.2d at 423.

Appendix A-9. The state Supreme Court further

12

distinguished Pickett on the alleged grounds

that "the interested parties did not have

adequate time to obtain child support. We do

not face such an assertion here." State v.

Serr, 506 N.W.2d at 423; Appendix A-9 and

A-10.

Two members of the five-member court

dissented separately. Justice Wuest stated:

In the present case, the majority

As I have

previously stated, the South Dakota

statute of limitations fails the

SES Oe

of the __ Fourteenth __ Amendment .

Therefore, the provision is void,

and offers no protection to Serr.

State - Serr, 506 N.W.2d at 423;

Appendix A-11. (Wuest, J., dissenting)

(emphasis added).

Justice Sabers, also in dissent, stated:

As clearly outlined in Pickett. .

SDCL 25-8-9 was unconstitutional at

all times prior to 1986 because it

violated the Equal Protection Clause

of the Fourteenth Amendment.

NT |

13

State v. Serr, 506 N.W.2d at 425; Appendix

A-18. (Sabers, J., dissenting) (emphasis

added).

The State, therefore, submits that the

constitutional question was adequately raised

below.

REASON FOR GRANTING THE WRIT.

THE DECISION OF THE SOUTH DAKOTA SUPREME

COURT CONFLICTS WITH THE DECISIONS OF THIS

COURT.

A. The decisions of this Court preclude the

application of a two-year statute of

limitations to paternity claims.

In Weber v. Aetna Casualty and Surety

Company, 406 U.S. 164, 175 (1972), this Court

Said:

The status of illegitimacy has

expressed through the ages society’s

condemnation of irresponsible

liaisons beyond the bonds of

marriage. But visiting this

condemnation on the head of an

infant is illogical and unjust.

14

Moreover, imposing disabilities on

the illegitimate child is contrary

to the basic concept of our system

that legal burdens should bear some

relationship to individual

responsibility or wrongdoing.

Obviously, no child is responsible

for his birth and penalizing the

illegitimate child is an

ineffectual--as well as an unijust--

way of deterring the parent.

In Clark v. Jeter, 486 U.S. 456, 461

(1988), this Court quoted part of this

language in explaining its adoption of the

"Intermediate scrutiny" test to determine

whether a statutory classification which

discriminated on the basis of illegitimacy was

valid under the Equal Protection Clause. The

Court explained that to pass muster under the

intermediate test "a statutory classification

must be substantially related to an important

governmental objective." Id.

Pursuant to the intermediate scrutiny

analysis, this Court has invalidated a one-

year statute of limitations on paternity

suits, see Mills v. Habluetzel, 456 U.S. 91

lh

15

(1982); a two-year statute of limitations on

paternity suits, Pickett v. Brown, 462 U.S. 1

(1983); anda six-year statute of limitations

on paternity suits, Clark v. Jeter, 486 U.S.

at 464.

The Court also developed in Mills a

"pParticular framework for evaluating equal

protection challenges to statutes of

limitations that apply to suits to establish

paternity. ..." Clark v. Jeter, 486 U.S. at

461-462. According to the Mills Court:

First, the period for obtaining

Support .. . must be sufficiently

long in duration to present a

reasonable opportunity for those

with an interest in such children to

assert claims on their behalf.

Second, any time limitation placed

on that opportunity must be

substantially related to the State’s

interest in avoiding the litigation

of stale or fraudulent claims.

Mills v. Habluetzel, 456 U.S. at 99-100.

Both prongs of this analysis must be

Satisfied for a statute to pass constitutional

16

muster. See generally, Clark v. Jeter,

486 U.S. at 464.

1 T wo-yea 1 r1o

vided j h Dal

in 7 t

c rov

- b] brj

suit.

In Pickett v. Brown, 462 U.S. 12-13, this

Court applied the Mills test and found that

Tennessee’s two-year statute of limitations

did not provide a reasonable opportunity to

bring suit. The Tennessee statute in Pickett,

like South Dakota’s statute, provided that the

limitations period did not run if the father

"has provided support for the child or has

acknowledged his paternity in writing." See

Pickett v. Brown, 462 U.S. at 12; SDCL 25-8-9

(as effective 1978) (set out above at p. 3).

The Tennessee statute, however, was more

generous than the South Dakota statute at

issue in that Tennessee also allowed suits to

be brought "by the State or by any person at

a?

any time prior to a child’s eighteenth

birthday if the child is, or is liable to

become, a public charge." Pickett, 462 U.S.

—

at 12. South Dakota had no corresponding

clause in 1978.

Despite the exceptions in the Tennessee

Statute, this Court found that its "2-year

limitations period severely restricts [an

illegitimate child’s] right to paternal

Support." Id. The Court recognized that the

mother’s "‘continuing affection for the

child’s father, [along with] a desire to avoid

disapproval .. .or emotional strain and

confusion’ .. . may inhibit a mother from

filing a paternity suit on behalf of the child

within two years after the child’s birth."

Pickett, 462 U.S. at 12-13, quoting Mills,

456 U.S. at 100. The Court concluded:

These considerations compel a

conclusion that the 2-year

limitations period does not provide

illegitimate children with ‘an

eT

18

adequate opportunity to obtain

support.’

Pickett, 462 U.S. at 13, quoting Mills,

456 U.S. at 100.

South Dakota’s 1978 statute fails the

Pickett test. It provides for a two-year

statute of limitations with certain exceptions

that were also found in the Tennessee statute.

Indeed, the 1978 South Dakota statute provides

even fewer opportunities to establish

paternity than the Tennessee statute at issue

in Pickett because the South Dakota statute

did not contain the exception regarding the

likelihood of a child becoming a public

charge.

19

The two-year limitation period is

not justified by the interest in

avoiding litigation of stale or

fraudulent claims.

Pickett v. Brown, 462 U.S. at 13, held

that a two-year time limitation was not

"substantially related to the State’s interest

in avoiding the litigation of stale or

fraudulent claims." The Court found that the

two years allowed by the Tennessee statute

amounted to a "restriction effectively

extinguishing the support rights of

illegitimate children that cannot be justified

by the problens of proof surrounding paternity

actions." Id. The Court also found that the

State’s interest in avoiding stale or

fraudulent claims could not justify the two-

year statute of iimitations in light of other

Tennessee statutes which provided for longer

Statutes of limitations in similar actions.

In particular, an eighteen-year statute of

limitations applied to illegitimate children

nie ’

20

in Tennessee who were likely to become public

charges, and Tennessee provided that most

other actions were tolled during the child’s

minority. Id. at 14-15. In addition, the

Court found that the state’s interest in a

short statute of limitations "had become more

attenuated" because of "Scientific advances in

RiGee Cesting. . . 3" Jey Ge st.

Clark v. Jeter reinforces and indeed

broadens Pickett in that it invalidates the

six-year Pennsylvania statute of limitations

on paternity actions.’ Clark v. Jeter, 486

*It is of note that, according to State ex

rel. Stearns v. Blume, 333 N.W.2d 721 (S.D.

1983), paternity actions may be brought as

"common law" actions to enforce the duty of a

father to support his minor child and a six-

year statute of limitations would apply. This

point is not of decisive relevance here,

however, because (1) even if a six-year

statute of limitations were before the court,

it had expired and offers no assistance to the

Petitioner here or those in ae_— similar

Situation; (2) this Court has, of course,

invalidated Pennsylvania’s six-year statute of

limitations in Clark v. Jeter; and (3) the

action was not brought as a "common law"

(continued...)

ee

21

U.S. at 464, pointed out that the six-year

Statute of limitations in Pennsylvania could

not be found to be "substantially related to

Pennsylvania’s interest in avoiding the

litigation of stale or fraudulent claims"

because in "a number of circumstances,

Pennsylvania permits the issue of paternity to

be litigated more than six years after the

birth of an illegitimate child." Thus,

Pennsylvania allowed an action to enforce the

obligation of the father after the six-year

period had expired in the event the father had

furnished support; in such cases, an action

could be brought for two years after the

support payment. 1. In addition,

Pennsylvania’s intestacy statute placed no

limit on when paternity could be litigated, as

long as a child could show clear. and

7(...continued)

action, but as an action under SDCL ch. 25-8

and that is of critical importance to the

State court; see Blume, 333 N.W.2d at 724.

22

convincing evidence to establish paternity.

Id. Furthermore, this Court noted in Clark

that the Pennsylvania Legislature had recently

"enacted a statute that tolls most other civil

actions during the child’s minority." Id.

Clark v. Jeter, 486 U.S. at 465, also

recognized that "increasingly sophisticated"

genetic testing allowed very high confidence

in excluding prospective fathers regardless of

the delay in the taking of the blood test.

Under the analysis of Pickett and Clark,

South Dakota’s two-year statute of limitations

is not "substantially related" to the interest

in avoiding stale or fraudulent claims.‘

First, as in Pickett and Clark, the

"stale" claims argument is belied by the fact

‘The State, of course, denies Mr. Serr’s

interest in this issue and there is a

Significant issue whether he has standing to

raise the State’s interest in this case.

Mr. Serr’s interest in avoiding "stale"

litigation is confined to his own alleged due

process right discussed below.

23

that most civil actions in South Dakota are

now, and were at the time of the 1978 statute,

tolled "within the age of minority" SDCL

15-2-22(1). Indeed, unlike Clark v. Jeter,

the South Dakota statute regarding most civil

actions was already in effect at the time of

the 1978 statute, making the claim to

constitutional validity of the South Dakota

Statute even weaker.

Second, the State’s interest in

preventing stale claims is further undermined

by the 1978 statute itself which does not

apply to proceedings to enforce the obligation

of (1) a father for whom paternity has been

judicially established or (2) a father who has

acknowledged paternity in writing or through

the furnishing of Support. SDCL 25-8-9 (as

effective in 1978) (set out above at p. 3).

Third, the South Dakota statutes relating

to intestacy proceedings were amended in 1991

to provide that an illegitimate child could

24

inherit from his declared father on the basis

of clear and convincing proof after his death.

SDCL 29-1-15.1.

Fourth, SDCL 25-8-9, the statute at issue

here, was amended in 1983 to provide for a

six-year statute of limitations, 1983 S.D.

Sess. L. ch. 207, § 2, (set out above at p. 3)

and amended again in 1986 to provide for an

eighteen-year statute of limitations. 1986

S.D. Sess. L. ch. 218, § 57 (set out above at

p. 4). A further amendment in 1989 removed

the explicit retroactivity provision, 1989

S.D. Sess. L. ch. 222, (set out above at p. 4)

but the Legislature, at least in 1986,

apparently saw no "stale claim" impediment to

an eighteen-year statute of limitations on

paternity suits.

Finally, Clark emphasizes that’ the

purported interest in avoiding stale evidence

has been undermined by "increasingly

sophisticated tests for genetic markers

ee eee eee

45

[which] permit the exclusion of over 99% of

those who might be accused of paternity,

regardless of the age of the child." Clark v.

Jeter, 486 U.S. at 465. Mr. Serr appealed to

the South Dakota Supreme Court solely on the

legal issues and therefore no transcript of

the circuit court proceedings was ordered.

See generally, Mr. Serr’s Appellant’s Brief,

Appendix A-84. The State, however, is

informed by the State’s attorney, trial

counsel below, that no scientific evidence of

paternity was admitted into evidence in this

case. Paternity was, of course, found to

exist, Findings of Fact and Conclusions of

Law, Appendix A-39, and no appeal was taken

from this factual finding by Mr. Serr.®

"Mr. Serr appealed to the South Dakota

Supreme Court solely on the legal issues and

no transcript of the circuit court proceedings

was ordered. See generally, Mr. Serr’s

Appellant’s Brief, Appendix A-84. The State,

however, is informed by the State’s Attorney,

trial counsel below, that no_ scientific

(continued...)

26

Application of this Court’s analysis, in

Mills, Pickett and Clark, to the two-year

statute of limitations in effect in South

Dakota in 1978 demonstrates that the South

Dakota statute is inconsistent with the Equal

Protection Clause of the United States

Constitution.°®

B. The due process right of the putative

father does not overcome the _ equal

protection rights of the illegitimate

child.

The South Dakota Supreme Court

essentially held that when the Legislature had

established a statute of limitations, and when

the period of time under the statute had run,

>(...continued)

evidence of paternity was admitted into

evidence in this case. (Paternity was, of

course, found to exist, Findings of Fact and

Conclusions of Law, Appendix A-39, and no

appeal was taken from this factual finding by

Mr. Serr.)

‘Indeed, the patent inconsistency of the

South Dakota statutes with Mills, Pickett and

Clark may merit consideration of summary

reversal of the decision below.

ll

27

an attempt to revive it by a_ subsequent

Statute "impermissibly interferes with a

defendant’s vested rights and violates due

process." State v. Serr, 506 N.W.2d at 423;

Appendix A-8 to A-9.

The decision of the state Supreme Court

was Clearly incorrect under Chase Securities

Corp. v. Donaldson, 325 U.S. 304 (1945). In

Chase, certain non-registered securities had

been sold in Minnesota in 1929. The six-year

Statute of limitations ran in 1935 and suit

was commenced in 1937. The defendant asserted

the statute of limitations as a defense but

during the pendency of the litigation the

Legislature effectively extended the statute

of limitations. The defendant argued that

extension of the statute of limitations

violated the Due Process Clause. See Chase,

325 U.S. at 309, 311. This Court rejected

defendant’s claim, affirming its prior holding

in Campbell _v. Holt, 115 U.S. 620 (1885):

28

(W)here lapse of time has not

invested a party with title to real

or personal property, a state

legislature, consistently with the

Fourteenth Amendment, may repeal or

extend a statute of limitations,

even after right of action is barred

thereby, restore to the plaintiff

his remedy, and divest the defendant

of the statutory bar. This has long

stood as a statement of the law of

the Fourteenth Amendment, and we

agree with the court below that its

holding is applicable here and fatal

to the contentions of appellant.

Chase, 325 U.S. at 311-312. The Court held

that Campbell v. Holt was "sound and should

not be overruled," because the "Fourteenth

Amendment does not make an act of state

legislation void merely because it has some

retrospective operation." Id. at 315. The

Court noted that the defenses raised by the

defendant had not been undertaken on the

"assumption that the old rule would be

continued." Id. at 316. The Court concluded:

Whatever grievance appellant may

have at the change of policy to its

disadvantage, it had acquired no

immunity from this suit that has

ea

29

become a federal constitutional

right.

Id. See also Electrical Workers v. Robbins &

Myers, Inc., 429 U.S. 229, 243-244 (1976); see

generally, G.D. Searle & Co. v. Cohn, 455 U.S.

404, 408 (1982).

It follows from Chase that, for the

purpose of constitutional analysis, a statute

of limitations goes only to remedy and not to

the creation of a substantial right

protectable, at least under ordinary

circumstances, by the due process clause.

Therefore, the state Supreme Court was wrong

when it concluded that the federal due process

clause mandated application of the expired

Cwo-year statute of limitations in this case.

Furthermore, this Court’s holdings in

Clark, Pickett and Mills preclude a finding

that the putative father’s due process right

Supersedes an illegitimate child’s right under

the Equal Protection Clause to a determination

30

of paternity and support. See generally

Mills, 456 U.S. at 101, n. 9 (citing Chase

Security Corp. v. Donaldson, 325 U.S. at 314).

Acceptance of the South Dakota Supreme Court’s

decision here would surely undermine, perhaps

fatally, those decisions.

The judgment of the South Dakota Supreme

Court effectively denies children born out of

wedlock between 1981 and 1976 the right to

bring a paternity action.

A total of approximately 8,600 children

(less, of course, any children who have

already somehow established paternity) could

be harmed by this decision.’

"The number of children affected is as

follows:

Calendar year Out of wedlock births

1976 1391

1977 1498

1978 1524

(continued...)

ae ae ee

31

Not only could South Dakota children be

harmed by this decision, but the State of

South Dakota’s ability to provide support for

those children could also be undermined

because of the potential inconsistency of

South Dakota law with the Federal Child

Support Enforcement Amendments passed by

Congress in 1984. See 42 U.S.C. §§ 601, 666

7(...continued)

1979 1659

1980 1782

1981 865 (see below)

Table compiled from the following annual

reports, all of which were authored by South

Dakota Department of Health, Vital Records

Program: "South Dakota Vital Statistics

1981" p. 11; "South Dakota Vital Statistics"

1980" p. 11; "South Dakota Vital Statistics"

1979" p. 13; "South Dakota Vital Statistics"

1978" p. 22; "South Dakota Vital Statistics"

1977" p. 35; "South Dakota Vital Statistics"

1976" p. 31; "South Dakota Vital Statistics"

(The 1983 statute, which went into effect

July 1, 1983, 1983 S.D. Sess. L. ch. 207 § 2

(set out above at p. 3), would preserve the

rights of children born within two years of

that effective date, i.e. about one-half of

the children born in 1981; the 1981 number

used above has been adjusted accordingly. )

32

(1988). See also 45 C.F.R. § 302.70(5) (i).

It may well be that South Dakota will now be

threatened with the loss of funding because of

this noncompliance.

More important, of course, is that as a

result of the state Supreme Court decision in

State v. Serr, children are not being treated

equally under the law.

CONCLUSION

For the foregoing reasons, the Petitioner

respectfully requests this Court grant the

petition for writ of certiorari.

Respectfully submitted,

MARK BARNETT

ATTORNEY GENERAL

State of South Dakota

Counsel of Record

John P. Guhin

Deputy Attorney General

Patricia J. Froning

Assistant Attorney General

500 E. Capitol

Pierre, SD 57501-5070

Telephone: (605) 773-3215