Opposition Brief — South Dakota Department of Social Services ex rel. Dotson v. Serr

No. 93-1091

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 ¢ SERR,

Respondent.

— °

On Petition For Certiorari

To The Supreme Court Of The

State Of South Dakota

+

RESPONDENT’S BRIEF IN OPPOSITION

¢

WALLY EKLUND

JOHNSON, EKLUND, NICHOLSON,

DouGHerty & ABOUREZK

P.O. Box 149

Gregory, SD 57533

Telephone (605) 835-8391

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether This Court Should Consider A Constitu-

tional Issue Not Raised Before Or Decided By The

South Dakota Courts When The Question Raised Is

Not One Which Presents An Important Federal Ques-

tion?

Whether the South Dakota Supreme Court’s Holding

In State v. Serr Conflicts With Any Decisions Of This

Court?

li

TABLE OF CONTENTS

OCuestions Presented os. <sicscvenesbeaeuaeeueeeas

I. Whether This Court Should Consider A Consti-

tutional Issue Not Raised Before Or Decided By

The South Dakota Courts When The Question

Raised Is Not One Which Presents An Important

Federal Question? ... ..cissvevacenehaveaaeuewees

Il. Whether the South Dakota Supreme Court's

Holding In State v. Serr Conflicts With Any Deci-

sions CF This Coutt?l 5s. ccsvcceduuceveveeseerss

Summary of the Argumne.....cccecscerctuctastecers

Statement of ee Case inc cccccvesevcceracsseassencs

A. Relevant Statutory Provisions..............

B. Oplsdons Demew voici csssvesststesssceseees

Statement of Fact... +ccsiaxssansessaenueueseane

Reasons for Denying the Writ ...............0seee

I. This Court Should Not Consider A Constitu-

tional Issue Not Raised Before Or Decided By

The South Dakota Courts When The Question

Raised Is Not One Which Presents An Important

Federal Cmestigit .6662+ncdscceessee eas eee

A. The State Failed To Present The Constitu-

tional Question It Now Advances To The

South Tretn COG ci civosccwcsusecPacers

B. The South Dakota Courts Did Decide The

Constitutional Question Posed To This Court

eegeseaeeseeaeeceecoeoesgeesees ese eeeeeeeceaescesena esa eee ea eee &

e+e

TABLE OF CONTENTS - Continued

Page

C. The South Dakota Supreme Court’s Holding

In State v. Serr Does Not Raise An Important

no oe cp aad here eed 17

Il. The South Dakota Supreme Court’s Holding In

State v. Serr Does Not Conflict With Any Deci-

SE Se NS pode vocevececcvceoevccevess 19

A. The South Dakota Supreme Court’s Holding

That An Amended Statute May Not Be Ret-

roactively Applied Does Not Conflict With

Any Decision Of This Court............... 19

a caebbeecesoeuves 27

iV

TABLE OF AUTHORITIES

Page

Statutes CITED

ee Seas Oe OM vin dd cb ech peues he seve Casceeseuces passim

Oe RRs ee ee COO Ciiice 5: c50 03 4euscnneens 16, 19

i ER dS dd bbe bee eeeececsdepewne 4, 20, 22, 26

Ne OO oo os vnc duedeccssasdcaenwes¥ttens 4, 20

ee ND ves Setirevecereecdeceswereuti 2, 13, 14

oe a 2 PPP ereerrrr reer ririsr rT rete 2, 13, 14

es Oe SES 5 ckovncccdenecesseeescoucessccne tu ie ie

Sete SI an adoedeuucreceeticnesducestewcess passim

SDCL § 25-8-9, 1989 S.D. Sess. L., ch. 222............ 4

SDCL § 25-8-9, 1986 S.D. Sess. L., ch. 218, § 57...... 4

SDCL § 25-8-9, 1983 S.D. Sess. L., ch. 207, § 2....... 3

Cases CiTeD

Application of Northwestern Bell Telephone Co., 326

POPU Dy BOO GE BOMED Sec dcvencesovccoevecees 14

Bayer v. Johnson, 349 N.W.2d 447 (S.D. 1984)......... 15

Cardinale v. Louisiana, 394 U.S. 437, 89 S.Ct. 1161,

ee ee ee Gh ob oS cuev ceansawad bade sen seu )

Carr v. Core Industries, 392 N.W.2d 829 (S.D. 1986) .... 15

Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65

to: | Mery rr rr rey rr ery rer rr 20

TABLE OF AUTHORITIES - Continued

Page

Claridge Apt. Co. v. C.I.R., 323 U.S. 141, 65 S.Ct. 72,

ee OB: | eee errr re ee 20

Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100

L.BG.2e 465 (ISEB). occ cccccccccccess 12, 16, 23, 24, 25

Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35

Scan Gee PENG ohne €5-n00 cn aduneteceutenaaauaie 25

Graham v. State, 328 N.W.2d 254 (S.D. 1982)......... 14

Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28

L.Ed.2d 484 (1971)............. BR Pps a8 he Ao )

Lalli v. Lalli, 429 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d

Bh, Pee er errr rer rer Pore? Pep 25

Mayrose v. Fenrich, 347 N.W.2d 585 (S.D. 1984) ...... 15

Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71

LGAs Foe Cems ¢ o c'uvse 6040 000040000sse ee 12, 23

Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33

Le ee Pee COs 0 csc bee eva se coceeesonedsacereu Y

M.S. v. Dinkytown Day Care Center, Inc., 485

he e ft | Or rrr 14

Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742, 60

mk he fe, SR rr rae 25

Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76

Rs 8 Re | | rer er rere 12, 23

Sharp v. Sharp, 422 N.W.2d 443 (S.D. 1988)....... 14, 15

Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31

Be ES 8 eee re rer erry 9

aa ananaeQuGajE=»&

vi

rABLE OF AUTHORITIES — Continued

State of South Dakota ex rel. Dotson v. Serr, 506

N.W.2d 421 (S.D 1993)

State of Minn. ex rel. Hove v. Doese, 501 N.W 2d 366

(S.D. 1993) 20,

Tacon v. Arizona, 410 U.S. 351, 92 U.S. 998, 35

L.Ed.2d 346 (1973)

Trimble v. Gordon, 430 U.S. 162, 97 S.Ct. 1459, 1466,

52 L.Ed.2d 31 (1977)

University of California Regents v. Bakke, 438 U.S

265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978).

Webb v. Webb, 451 U.S. 493, 101 S.Ct. 1889, 65

L.Ed.2d 392 (1981) Fy

Misc. CrrATIONS

28 U.S.C.A. §1257, D. Siwcet, “Commentary on the

1988 Revision,” pp. 96-98 (1993)

U.S. Sup.Ct. Rule 10.1

U.S. Sup.Ct Rule 14

SDC 1939 §37.2131

82 C.J.S. § 414

Page

passim

22, 23

9g

25

)

10, 11

17

17

y

2

20

JURISDICTIONAL STATEMENT

The Respondent suggests that jurisdiction by this

Court can not be evoked pursuant to the provisions of 28

U.S.C. § 1257(a).

Specifically, the Respondent disputes that the present

issue is properly before this Court as it was never pre-

sented or argued to either the South Dakota trial court or

the South Dakota Supreme Court and, therefore, the state

courts were not afforded a fair opportunity to address the

federal question that is sought to be determined here.

Additionally, the Respondent urges that, respectively, the

present issue does not raise an important federal ques-

tion.

SUMMARY OF THE ARGUMENT

[he Respondent, Mery! Serr, respectfully prays that

this Court deny the State of South Dakota’s petition for a

writ of certiorari in the matter of State of South Dakota ex

rel. Dotson v. Serr, 506 N.W.2d 421 (S.D. 1993) [hereinafter

State v. Serr], a judgment and opinion issued by the

Supreme Court of the State of South Dakota on October 6,

1993

The Respondent contends that review of this opinion

is not proper because jurisdiction pursuant to 28 U.S.C.

§ 1257 is not established where the South Dakota state

courts did not have a fair opportunity to address the

constitutional question sought to be reviewed and where

the record establishes that the question raised is not,

relatively, an important issue of federal concern. The

Respondent alternatively asserts that the South Dakota

Supreme Court’s holding in State v. Serr does not conflict

with any prior decision of this Court.

+

STATEMENT OF THE CASE

A. Relevant Statutory Provisions

A wholly discretionary statute, 28 U.S.C. § 1257(a)

provides in relevant part as follows:

Final judgments or decrees rendered by the

highest court of a State in which a decision

could be had, may be reviewed by the Supreme

Court by writ of certiorari where . . . any title,

right, privilege, or immunity is specially set up

or claimed under the Constitution or the treaties

or statutes of . . . the United States.

In addition, South Dakota law regarding the appro-

priate scope of review in its appellate system is relevant

here. Pursuant to South Dakota’s rules of appellate pro-

cedure, parties seeking review in the South Dakota

Supreme Court shall provide to the court:

a concise statement of the legal issue or issues

involved, omitting unnecessary detail. Each

issue shall be stated as an appellate court would

state the broad issue presented. Each issue shall

be followed by a concise statement of how the

trial court decided it.

SDCL § 15-26A-60(4). An appellee need not reply to the

appellant’s statement of the issues “ . unless the

appellee is dissatisfied with the statement of the appel-

lant.” SDCL § 15-26A-61.

eT

Additionally, an appellate party may petition for

rehearing before the South Dakota Supreme Court within

twenty days after a decision:

The petition shall state briefly the ground upon

which a rehearing is asked and the points sup-

posed to have been overlooked or misap-

prehended by the court, with proper reference

to the particular portion of the printed record

and the authorities relied upon.

SDCL § 15-30-4.

Finally, the statutory provision now challenged by

the State comes from a version of SDCL § 25-8-9 which

was in effect in 1978. At that time, SDCL § 25-8-9 pro-

vided as follows:

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 estabiished,

or has been acknowledged by the father in writ-

ing or by the furnishing of support.

(See former SDC 1939 § 37.2131)

In 1983, South Dakota amended this statute to read as

follows:

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 writ-

ing or by the furnishing of support.

(1983 S.D. Sess. L., ch. 207, § 2).

In 1986, SDCL § 25-8-9 underwent further change:

Proceedings to establish paternity and enforce

the obligations 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.

(1986 S.D. Sess. L., ch. 218, § 57).

A final change to SDCL § 25-8-9 was wrought in 1989

when the legislature deleted the retroactive language so

that the present South Dakota statute reads as follows:

Proceedings to establish paternity and enforce

the obligations of the father may be brought at

any time before the eighteenth birthday of the

child.

(1989 S.D. Sess. L, ch. 222).

Salient to this final statutory revision is SDCL

§ 2-14-21, which addresses the issue of retroactive appli-

cation of statutes in South Dakota courts. That statute

provides:

No part of the code of laws enacted by § 2-16-13

shall be construed as retroactive unless such

intention plainly appears.

B. Opinions Below

The procedural history underlying this paternity

action is somewhat lengthy, though not difficult. The

State of South Dakota instituted an action for paternity

against the Respondent, Meryl Serr, on May 17, 1991 on

behalf of a Pennsylvania citizen, Gail Dotson, and her

thirteen year-old son. Serr, making a special appearance,

moved to dismiss the action based upon a statute of

limitations defense. Following a hearing on the motion on

July 27, 1991, the trial court altered its bench ruling and

entered Findings of Fact and Conclusions of Law and an

Order denying Serr’s motions to dismiss. (Petitioner’s

Appendix, A-21; A-29, A-31) ;

The matter proceeded to trial on April 20, 1992. At no

time was the issue raised by the State in this petition

presented to the trial court. The trial court entered its

Findings of Fact and Conclusions of Law and a Judgment

of Paternity and Support, determining Mr. Serr to be the

child’s biological father on May 12, 1992. (Petitioner’s

Appendix, A-32; A-43)

On June 12, 1992, further proceedings were heard

before the trial court to establish the appropriate amount

of support. Following that hearing, the trial court entered

separate Findings of Fact and Conclusions of Law and an

Amended Judgment of Paternity and Judgment of Sup-

port. (Petitioner’s Appendix, A-46; A-54) Notice of Entry

was given on June 29, 1992. Mr. Serr appealed.

In the meantime, the trial court entered a Second

Amended Judgment of Paternity and Order of Support,

dated July 8, 1992. (Petitioner’s Appendix, A-58) Notice

of Entry of the Second Amended Judgment for Paternity

and Support was given on July 9, 1992. Serr renewed his

appeal pursuant to South Dakota’s appellate procedure,

arguing that South Dakota law did not permit retroactive

application of statutes absent an express legislative inten-

tion.

The matter was briefed and argued to the South

Dakota Supreme Court. On October 6, 1993, the South

Dakota Supreme Court issued its opinion, reversing the

trial court and holding that the present version of SDCL

§ 25-8-9 is not retroactive. State v. Serr, 506 N.W.2d at 423.

Thereafter, the State of South Dakota petitioned this

Court for its writ of certiorari to review that judgment on

a constitutional issue that it failed to properly present

before either of the South Dakota courts. The Respondent,

Meryl Serr, respectfully requests that this Court decline

the State’s petition.

STATEMENT OF THE FACTS

The following facts are not contested. On June 6,

1978, Gail Dotson gave birth to a child out-of-wedlock.

From that time to the present, Ms. Dotson and her child

have been Pennsylvania residents. According to Ms. Dot-

son, she became pregnant while living in Nevada in 1977,

where she became acquainted with the respondent, Meryl

Serr, and began to have sexual relations with him. Ms.

Dotson also admits that during this same time-frame, she

had intercourse with another man.

For reasons not revealed by this record, Ms. Dotson

hesitated some thirteen years before naming a putative

f her for the child. In 1988 or 1989, she sent a letter with

a picture of the child enclosed to Mr. Serr at his South

Dakota address, indicating her belief that he was the

child’s father. The receipt of this belated birth announce-

ment was the first indication Mr. Serr had of either Ms.

Dotson’s pregnancy or the subsequent birth. Conse-

quently, he had neither been adjudicated to be the father,

nor had he acknowledged paternity or offered support

for the child.

When Ms. Dotson began to receive Aid to Dependent

Children in December, 1989, she applied for child support

services under Pennsylvania’s Revised Uniform Recipro-

cal Enforcement of Support Act. Once a Pennsylvania

court determined that Mr. Serr could owe a duty of

support, a paternity petition was initiated in South

Dakota circuit court to establish paternity and compel

support on May 17, 1991.

Mr. Serr responded to the paternity complaint by

asserting that the statute of limitations to bring the action

against him had run. As discussed above, Mr. Serr made a

special appearance at a hearing to determine the viability

of this defense and the trial court ultimately rejected Mr.

Serr’s statute of limitations defense,! specifically finding

that the South Dakota legislature intended the 1989 ver-

sion of SDCL § 25-8-9 to apply retroactively.

(Petitioner’s Appendix, A-21 (Conclusion of Law

IV)). Significantly, the equal protection argument now

espoused by the State was never presented to the trial

court. Thereafter, the paternity/support action pro-

ceeded, with the trial court ultimately finding that Mr.

Serr was the child’s father and that this status obligated

him to make support for the child. Mr. Serr timely

appealed.

On appeal, the South Dakota Supreme Court

reversed, holding that the current version of SDCL

§ 25-8-9 did not have retroactive application. Serr, 506

! The trial court ruled from the bench in favor of Mr. Serr,

then reversed its position in a brief letter opinion. (Petitioner’s

Appendix, A-31)

N.W.2d at 423. Importantly, the South Dakota Supreme

Court noted that Dotson did not specifically raise any

constitutional issues on her own behalf. The South

Dakota Supreme Court did not undertake to pursue that

issue for her and, therefore, did not decide that particular

question. Id. at 423.

REASONS FOR DENYING THE WRIT

I.

This Court Should Not Consider A Constitutional Issue

Not Raised Before Or Decided By The South Dakota

Courts When The Question Raised Is Not One Which

Presents An Important Federal Question.

A. The State Failed To Properly Present The Fed-

eral Question It Now Advances To The South

Dakota State Courts.

The State of South Dakota now argues at length to

this Court that SDCL § 25-8-9, as it was in effect in 1978,

violated the Equal Protection Clause of the Fourteenth

Amendment. It is respectfully submitted that, as a matter

of procedural and appellate propriety, this argument

comes too late: neither the South Dakota circuit court nor

the South Dakota Supreme Court was ever properly pre-

sented with this question.

Because this case comes to this Court from the South

Dakota state court, the relevant jurisdictional statute is 28

U.S.C. § 1257. As applied to the circumstances of this

case, that statute mandates that in the state courts, the

petitioner shall “have specially set up or claimed under

the Constitution ... of... the United States” that right

which it now seeks to have this Court enforce. 28 U.S.C.

§ 1257(a).

Likewise, Supreme Court Rule 14(h) requires each

petitioner to “specify the stage in the proceedings, both in

the court of the first instance and in the appellate court,

at which the federal questions sought to be reviewed

were raised; the method or manner of raising them and

the way in which they were passed upon by the court.” A

review of this record reveals that the petitioner, the State

of South Dakota, failed to raise or preserve a claim of

violation of the Equal Protection Clause of the Fourteenth

Amendment in the South Dakota courts: the question

raised here simply was not decided in State v. Serr, 506

N.W.2d at 421.

This Court “has consistently refused to decide fed-

eral constitutional issues raised here for the first time on

review of state court decisions.” Cardinale v. Louisiana, 394

U.S. 437, 438, 89 S.Ct. 1161,,.1162, 22 L.Ed.2d 398 (1969).

See also Webb v. Webb, 451 U.S. 493, 496, 101 S.Ct. 1889,

1892, 68 L.Ed.2d 392 (1981); Tacon v. Arizona, 410 U.S. 351,

352, 92 U.S. 998, 999, 35 L.Ed.2d 346 (1973); Moore v.

Illinois, 408 U.S. 786, 799, 92 S.Ct. 2562, 2570, 33 L.Ed.2d

706 (1972); Stanley v. Illinois, 405 U.S. 645, 658 n.10, 92

S.Ct. 1208, 1216 n.10, 31 L.Ed.2d 551 (1972); Hill v. Califor-

nia, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971);

University of California Regents v. Bakke, 438 U.S. 265, 283,

98 S.Ct. 2733, 2744, 57 L.Ed.2d 750 (1978).

“Questions not raised below are those on which the

record is likely to be inadequate since it certainly was not

compiled with those questions in mind,” Cardinale, 394

10

U.S. at 438, 89 S.Ct. at 1163. The Court’s jurisdictional

reservation was more fully explained by the Court in a

latter case as follows:

.. . [T]here are powerful policy considerations

underlying the statutory requirement and our

own rule that the federal challenge to a state

statute.—_be_presented first to the state courts.

These considerations strongly indicate that we

should apply this general principle with suffi-

cient rigor to make reasonably certain that we

entertain cases from state courts only where the

record clearly shows that the federal issue has

been properly raised below.

Webb v. Webb, 451 U.S. at 500, 101 S.Ct. at 1983. These

considerations include a respect for the principles of com-

ity? as well as practical reasons which permit state courts

to exercise their authority to construe state statutes,

insure that independent state grounds will be identified

and acted upon in an authoritative manner by state

courts, and require litigants to adequately prepare and

present claims to state courts where the issue may be

disposed of in a manner that obviates any reason for

unnecessarily consuming the Supreme Court’s time and

effort. Webb, 451 U.S. at 500, 101 S.Ct. at 1894. In short,

proper presentation of federal questions in the first

2 Historically, the “federal-state comity” policy stems from

the exhaustion-of-state-remedies doctrine applicable to federal

habeas corpus review of the constitutional claims of state pris-

oners which has been adhered to as a means to allow state

courts the first instance to correct constitutional violations. See

Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d

438 (1971).

11

instance preserves this Court’s resources for cases which

are truly ready and important enough to review.

Of course, this rule has never been applied with

inflexible specificity. At the very minimum, however,

“there should be no doubt from the record that a claim

under . . . the Federal Constitution was presented in the

state courts and that those courts were apprised of the

nature or substance of the federal claim at the time and in

the manner required by state law.” Webb, 451 U.S. at 500,

101 S.Ct. at 1894.

Consider, for example, the result in Webb v. Webb. The

Petitioner there sought review of a Georgia Supreme

Court decision that she alleged failed to give full faith

and credit to a Florida custody decree. Webb, 451 U.S. at

493, 101 S.Ct. at 1890. The Court granted a writ of cer-

tiorari, only to discover later that the petitioner had not

properly presented the issue regarding the application of

the Full Faith and Credit Clause of the Federal Constitu-

tion to the Georgia courts; instead, the record revealed

that the petitioner had merely used the phrase “full faith

and credit” at several points in the proceedings below.

Webb, 451 U.S. at 496, 101 S.Ct. at 1891. Thus, where the

Georgia Supreme Court “neglected to pass on the import

of the federal Full Faith and Credit Clause,” Webb, 451

U.S. at 504, 101 at 1897 (MARSHAL, J., dissenting), this

Court concluded that it did not have jurisdiction to hear

the case due to the petitioner’s failure to properly raise

the question in the state court proceedings. Webb, 451 U.S.

at 500, 101 S.Ct. at 1894. is

12

Indeed, that is an immediate distinction between the

present petition and the cases cited by the State as sup-

porting authority. In each of those cases, the record dem-

onstrated that the federal question reviewed had initially

been appropriately presented to and decided upon by the

respective state courts. See Clark v. Jeter, 486 U.S. 456, 460,

108 S.Ct. 1910, 1913, 100 L.Ed.2d 465 (1988) (petitioner

specifically argued federal constitutional question to

lower and appellate state courts); Pickett v. Brown, 462

U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983) (same); Mills

v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770

(1982) (petitioner specifically appealed federal constitu-

tional question to state appellate court).

The State does not suggest that it presented the fed-

eral question it now raises to the South Dakota trial court.

It did not; instead, the State successfully argued there

that the present version of South Dakota’s paternity stat-

ute should be retroactively applied to Mr. Serr’s case.

(Petitioner's Appendix, A-31) Mr. Serr appealed to the

South Dakota Supreme Court upon the argument that

retroactive application of the statute violated his due

process and equal protection rights. (Petitioner’s Appen-

dix, A-80) Though South Dakota appellate procedure pro-

vided the State with the opportunity to do so, the State

merely responded to Mr. Serr’s issues and failed to raise

any federal constitutional arguments on its own behalf.%

3 According te the State’s own appellate arguments to the

South Dakota Supreme Court, these were the sole legal issues to

be addressed:

1. CAN A LEGISLATURE REVIVE A CAUSE OF

ACTION FOR PATERNITY BY GIVING THE

STATUTE OF LIMITATIONS RETROACTIVE

13

Though South Dakota procedural law also provides

appellate parties an opportunity for rehearing where

“points supposed to have been overlooked or misap-

prehended by the court” can be brought to the court’s

attention for reconsideration, SDCL § 15-30-4, the State

did not submit a petition for rehearing to the South

Dakota Supreme Court before seeking this Court’s writ of

certiorari.

The State now argues that its constitutional question

was “adequately raised below” by implication through

citation to three United States Supreme Court decisions in

its appellate brief. However, this is an assumption that

the record does not bear out. Specifically, the South

Dakota Supreme Court’s holding in Serr was that SDCL

§ 25-8-9 does not have retroactive effect. Serr, 506 N.W.2d

at 423. In dicta, the Serr court expressly stated: “Dotson

did not specifically raise any constitutional issues on her

own behalf.” Id. Thus, there was no consideration of the

issue by the South Dakota Supreme Court. Indeed, the

South Dakota Supreme Court merely noted, without

EFFECT, WITHOUT DENYING A PUTATIVE

FATHER DUE PROCESS OF LAW AND EQUAL

PROTECTION AS GUARANTEED BY THE

FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION?

2. DOES THE CURRENT VERSION OF SDCL 25-8-9

HAVE RETROACTIVE APPLICATION?

(See Petitioner’s Appendix, A-100, 101). South Dakota law

requires appellate parties provide to the court “a concise state-

ment of the legal issue or issues involved . . . followed by a

concise statement of how the trial court decided it.” See SDCL

§ 15-26A-60(4); SDCL § 15-26A-61.

14

explanation, that the State’s facts and citations were dis-

tinguishable. Id. at 423.

B. The South Dakota Courts Did Not Pass Upon

The Constitutional Question Posed To This

Court.

Rather than direct the Court's attention to the fact

that the present issue was never even identified as an

issue before the South Dakota Supreme Court, the State

posits that the South Dakota Supreme Court simply

rejected the constitutional argument that it now

advances. (Petitioner's Brief, p. 10) However, its analysis

assumes too much, for it assumes that South Dakota

Supreme Court must consider any issues implied by the

parties on appeal.

Clearly, the South Dakota Supreme Court is under no

obligation to consider issues not properly raised by the

parties, whether constitutional in nature or not. Under

South Dakota law, failure to properly identify the issues

to be considered on appeal is a waiver of all issues not

raised, briefed and argued. SDCL §§ 15-26A-60,

15-26A-61. See Graham v. State, 328 N.W.2d 254, 255 n.2

(S.D. 1982); Application of Northwestern Bell Telephone Co.,

326 N.W.2d 100, 104 (S.D. 1982). Thus, the South Dakota

Supreme Court has consistently held that the constitu-

tionality of a statute will not be considered where raised

for the first time on appeal. See e.g., M.S. v. Dinkytown Day

Care Center, Inc., 485 N.W.2d 587 (S.D. 1992) (equal protec-

tion argument raised on appeal by abused minors

declined because not presented to trial court); Sharp v.

Sharp, 422 N.W.2d 443 (S.D. 1988) (refusing to consider

15

the constitutional question raised at the appellate level

where the issue was not thoroughly submitted to the

court). See also Carr v. Core Industries, 392 N.W.2d 829

(S.D. 1986); Bayer v. Johnson, 349 N.W.2d 447 (S.D. 1984);

Mayrose v. Fenrich, 347 N.W.2d 585 (S.D. 1984).

In addition to specific appellate procedure statutes,

the South Dakota Supreme Court has explained its judi-

cial reservation in Sharp v. Sharp as follows:

For an appellate court to consider an issue and

make a decision on an incomplete record on

questions raised before it for the first time

would, in many instances, result in injustice,

and for that reason courts ordinarily decline to

review questions raised for the first time in the

appellate court.

Sharp, 422 N.W.2d at 445. The South Dakota Supreme

Court has also noted that this general rule of appeilate

procedure is not applied where the court is faced with “a

compelling case” and where an issue is as “thoroughly”

presented to the appellate court as it could have been

presented below. Id. at 466.

The South Dakota Supreme Court was not convinced

that either exception to the general rule applied here. The

record does not support a claim that this was a compel-

ling case. For example, the South Dakota courts were

never provided with the statistical information the State

cites in its present petition and Mr. Serr has had no

opportunity to rebut or question the reliability of those

numbers. (See Petitioner’s Brief, pp. 31 n.7) The statistics

16

advanced by the State, like the lion’s share of its argu-

ments, are not a part of the appellate record.*

The State also informs this Court that South Dakota

will be threatened by the “potential” loss of funding

because of its alleged “noncompliance” with the provi-

sions of the Federal Child Support Enforcement Amend-

ments, 42 U.S.C. §§ 601-666 (1988). (Petitioner’s Brief, pp.

31-32) Again, there is absolutely nothing on the record to

support this bald assertion. The State also failed to raise

the question of whether this federal statute preempted

state law. See e.g., Clark v. Jeter, 486 U.S. at 460, 108 S.Ct. at

1913 (declining to review where petitioner failed to ade-

quately raise claim of federal pre-emption by 42 U.S.C.

§ 666(a)(5) in lower courts). L

Like the petitioner in Webb v. Webb, the State of South

Dakota can only point out fleeting references to the

phrase “equal protection” and passing citations to United

States Supreme Court cases. However, South Dakota

appellate procedure clearly establishes that one can not

raise an appellate issue by mere implication. Moreover,

the South Dakota Supreme Court has the authority to

determine when an issue has been properly raised before

it. Here, the court expressly stated that the State had not

properly presented a constitutional issue. Serr, 506

N.W.2d at 423. In short, the constitutional question

4 Note that if the State believed that the South Dakota

Supreme Court had overlooked or misapprehended any argu-

ment on the record, it could have petitioned to that court for a

rehearing.

SDCL § 15-30-4.

17

argued here was neither fairly raised before or decided

by the state courts.

It is uncontested that the only issue raised and

addressed in the South Dakota Supreme Court in State v.

Serr was: “DOES THE 1989 AMENDMENT TO SDCL

25-8-9 HAVE RETROACTIVE EFFECT?” Id. The holding

in Serr was limited to the finding that SDCL § 25-8-9 is

not entitled to retroactive effect. Id. The Serr Court did

not determine whether South Dakota’s former statute is

constitutional: that question remains to be developed,

presented to and determined by the lower courts in South

Dakota before it can rightfully be decided here.

C. The South Dakota Supreme Court’s Holding in

State v. Serr Does Not Raise An Important Fed-

eral Question.

The jurisdictional requisites established by Congress

in 28 U.S.C. § 1257 grant recognition to the Supreme

Court’s “finite time” and allow the Court to judge each

potential case on not only its own merits, but against all

the other cases seeking the Court’s review. See 28

U.S.C.A. § 1257, D. Siegel, “Commentary on the 1988

Revision” pp. 96-98 (1993). Review by this Court on a

petition for certiorari is a matter of judicial discretion

rather than a matter of right; review is granted “only

when there are special and important reasons therefor.”

U.S. Sup.Ct. Rule 10.1.

The State can not, especially given the state of this

record, demonstrate a compelling or important reason for

this court to review the South Dakota Supreme Court's

decision in State v. Serr, 506 N.W.2d at 421. It implies,

18

without any support whatsoever on the record, that sev-

eral thousand children in South Dakota are going to be

harmed — indirectly — by the Serr decision. First, the State

quotes the Court to statistics that it failed to present to

the South Dakota courts and speculates that “approx-

imately 8,600 children, (less, of course, any children who

have already somehow established paternity) could be

harmed by this decision.” (Petitioner’s Brief, pp. 30-31).

Aside from the fact that this “evidence” is undisputedly

not on the record, it is facially misleading. Under the lightest

examination, it is revealed as meaningless nurnbers. By its

own admission, the State does not know how many children

born out-of-wedlock in South Dakota during the identified

time pericd have already established paternity: it is possible

that all of the approximately 8,600 children so generally

referred to have established paternity. This record is barren

of any sort of reference to the numbers of children who

could somehow be affected by the Serr decision (whether

from South Dakota or elsewhere) and that it is too late for

the State to submit that evidence now.

Additionally, the State implies that federal funding

for its child support programs is in jeopardy because of

its alleged noncompliance with the Federal Child Support

Enforcement Amendments.® It offers even less support

for this unadorned claim ~— and there is even less evidence

to support it. In a word, it is sheer speculation.

This Court should determine the relative importance

of this question based upon the actual facts and the

>° As noted above, the State also failed to raise the pre-

emption issue regarding the provisions of this federal enact-

ment before the South Dakota courts.

19

record of the case, not suppositions and belated, unsup-

ported statistical information. The record offers no foun-

dation: the State can not actually claim that even one

South Dakota child has been or will be affected by its

decision in Serr.© Perhaps the State’s present claim that

the Serr opinion is of great import to a great number of

South Dakota children would carry more credence if the

State had petitioned for rehearing on this issue before the

South Dakota Supreme Court: it did not. In fact, the state

of the record and the State’s belated efforts to offer some

support for its argument that this is an important federal

question only emphasize the fact that this argument was

never appropriately presented to the South Dakota

courts.

II.

The South Dakota Supreme Court’s Holding In State v.

Serr Does Not Conflict With Any Decisions Of This

Court.

A. The South Dakota Supreme Court’s Holding

That An Amended Statute May Not Be Retroac-

tively Applied Does Not Conflict With Any

Decision Of This Court.

To effectively discuss whether this case is an appro-

priate one for Supreme Court review, the actual holding

of State v. Serr must be emphasized. Contrary to the

6 Ms. Dotson and her child are residents of Pennsylvania.

Of course, there remains a question of whether the Serr decision

affects Ms. Dotson’s child where it is uncontested that federal

legislation may pre-empt South Dakota state law. See 42 U.S.C.

§ 666(a)(5).

20

State’s position, the South Dakota Supreme Court con-

cluded only that an amended statute may not be retroac-

tively applied so as to revive a cause of action previously

barred. Serr, 506 N.W.?d at 423.

This Court has long-recognized that retroactive legis-

lation, when permissible, is not favored. Claridge Apt. Co.

v. C.LR., 323 U.S. 141, 65 S.Ct. 72, 89 L.Ed. 139 (1944);

Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct.

1137, — L.Ed. — (1945). This basic principle has assumed

the proportions of horn-book law. According to one

source,

[i]t is well settled and a fundamental rule of

statutory construction, variously stated, that all

statutes are to be construed as having only a

prospective operation, and not as operating ret-

rospectively. It is equally well settled as a funda-

mental rule of statutory construction supported

and established by numerous judicial decisions

that statutes are not to be construed as having

retroactive effect.

82 CJ.S. § 414.

Consistent with the general rule, South Dakota law

specifically addresses the issue of retroactive application

of statutes in South Dakota courts. That statute provides:

No part of the code of laws enacted by § 2-16-13

shall be construed as retroactive unless such

intention plainly appears.

SDCL § 2-14-21. Most state courts which have considered

the issue of retroactivity of statutes have held that legisla-

tion which attempts to revive previously time-barred

claims impermissibly interferes with vested rights of the

defendant, and thus violates due process. State of Minn.

21

Ex Rel. Hove v. Doese, 501 N.W.2d 366, 369 (S.D. 1993) (cit-

ing a legion of supporting cases)[hereinafter State v.

Doese}.

The history of the statute involved in Serr indicates

that the statute, SDCL § 25-8-9, has undergone substantial

change since the birth of the Dotson child in 1978. At that

time, a version of SDCL § 25-8-9 provided as follows:

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 the father in writ-

ing or by the furnishing of support.

In 1983, South Dakota amended the legislation to

read as follows:

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 writ-

ing or by the furnishing of support.

In 1986, SDCL § 25-8-9 underwent further change:

Proceedings to establish paternity and enforce

the obligations 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

ciiidren who have been born since July 1, 1968.

A fiwal change to SDCL § 25-8-9 was wrought in 1989

when the legislature deleted the retroactive language so

that the present South Dakota statute reads as follows:

Proceedings to establish paternity and enforce

the obligations of the father may be brought at

22

any time before the eighteenth birthday of the

child.

It was this latest version of SDCL § 25-8-9 that the South

Dakota trial court applied to the facts of the present case,

a legal posture which necessarily required the retroactive

application of the statute despite the absence of any

legislative approval. Contra SDCL § 2-14-21.

At the time that Serr was appealed, the retroactive

application of SDCL § 25-8-9 was untested in South

Dakota. In the interim, however, the South Dakota

Supreme Court decided State v. Doese, 501 N.W.2d at 366.

In Doese, the South Dakota Supreme Court was presented

with a nearly identical factual scenario in a paternity

case. As in Serr, the State (this time the state of Minne-

sota) did not urge the pre-emption of federal laws or raise

any equal protection claim. Doese, 501 N.W.2d at 366

(“Minnesota and Hove did not .. . claim the statute

infringes upon Hove's constitutional rights. Rather, they

only allege tha? thre 1989 statute can be applied retroac-

tively.”). Though the Doese Cow:i did come much closer

to addressing the constituti-ial issue,” the Doese Court

also indicated that the barren state of the record made it

difficult. Doese, 501 N.W.2d at 371. Thus, the Doese Court

7 In a dissenting opinion, one justice indicated that he

believed the equal protection question should have been consid-

ered by the majority. Doese, 501 N.W.2d at 371 \ NUEST, J.,

dissenting).

Another dissenting opinion indicated that the 1989 version

SDCL 25-8-9 should have been considered retroactively effec-

tive. Id. at 374 (SABERS, J., dissenting).

23

also declined to pass upon the constitutiona! muster of

SDCL § 25-8-9.8

Finally, a comparison between the cases cited by the

State in its petitics indicate that the holding in State v.

Serr is not in conflict with this Court’s holdings in Clark v.

Jeter and Pickett v. Brown. First of all, both Clark and

Pickett directly address the issue of an equal protection

violation.? Clark, 486 U.S. 460-64, 108 S.Ct. 1914-16; Pick-

ett, 462 U.S. 7-19; 1{3 S.Ct. 2204-08. On the other hand,

Serr addresses only the retroactive application of SDCL

§ 25-8-9 and expressly notes that the equal protection

argument was not raised by the State. Serr, 506 N.W.2d at

426.

The earlier of the two cases, Pickett v. Brown, involved

an equal protection challenge to Tennessee’s former

paternity statute. At that time, its statute provided that a

paternity and support action must have been filed within

two years of the child’s birth unless the father had pro-

vided support, had acknowledged his paternity in writ-

ing or unless the child was, or was liable to become a

public charge, in which case the state or any person could

bring suit at any time prior to the child’s eighteenth

birthday. Pickett, 462 U.S. at 3 n.1, 103 S.Ct. at 2201 n.1. It

was significant that Tennessee’s claim that the interest

® No effort was made to seek a writ of certiorari regarding

the Doese holding — a procedural failure which also suggests

against the compelling nature of the present question.

? Pursuant to this Court’s holding in Mills v. Habluetzel, 456

U.S. at 99, 102 S.Ct. at 1554-55, statutes regarding illegitimate

children are treated to intermediate scrutiny when analyzed on

equal protection grounds.

24

advanced by the-statute_was to prevent stale or fraudu-

lent claims was “seriously undermined” by the fact that if

the child were likely to partake of public revenue, the

statutory period would be readily extended. Id. at 15; 103

S.Ct. at 2207. Thus, the Court concluded that the Tennes-

see statute violated the Equal Protection Clause, noting

“ ... some illegitimate children in Tennessee are treated

differently from, and less favorably than, legitimate chil-

dren.” Id. at 11; 103 S.Ct. at 2206.

In Clark v. Jeter, the Court considered an equal protec-

tion challenge to a Pennsylvania statute which barred

paternity claims with a six year statute of limitations. As

in Serr, the retroactive application of an amended statute

was addressed - and rejected - by the Pennsylvania

courts. Clark, 486 U.S. at 460, 108 S.Ct. at 1913. However,

there the equal protection argument had clearly been

properly raised in the state courts. /d.

Upon review, the Clark Court outlined the requisites

of a statute of limitation for paternity actions:

First, the period for obtaining support... must

be sufficiently long in duration to present a

reasonable opportunity for those with an inter-

est in such children to assert claims on their

behalf. Second, any time limitation placed upon

that opportunity must be substantially related to

the State’s interest in avoiding the litigation of

state or fraudulent claims.

Id. at 460, 108 S.Ct. at 1914. The Clark Court held that

Pennsylvania’s statute of limitations violated the Equal

Protection Clause, adding that “even six years does not

necessarily provide a reasonable opportunity to assert a

25

claim on behalf of an illegitimate child.” Id. Note, how-

ever, that Clark was not decided on that conclusion:

We do not rest our decision on this ground,

however, for it is not entirely evident that six

years would necessarily be an unreasonable lim-

itations period for child support actions.

Id. at 464, 108 S.Ct. at 1915.

The primary purpose in enacting a statute of limita-

tions in paternity actions is to protect persons from the

burden of litigating stale or fraudulent claims. The “lurk-

ing problems” of proving paternity have been frequently

recognized by this Court. Parham v. Hughes, 441 U.S. 347,

355, 99 S.Ct. 1742, 1748, 60 L.Ed.2d 269 (1979); Lalli v.

Lalli, 429 U.S. 259, 265, 99 S.Ct. 518, 523, 58 L.Ed.2d 503

(1978); Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 874,

35 L.Ed.2d 56 (1973). Evidence of paternity may take a

variety of forms, some creating more significant problems

of inaccuracy than other. See Trimble v. Gordon, 430 U.S.

762, 771, 97 S.Ct. 1459, 1466, 52 L.Ed.2d 31 (1977).

The State correctly asserts that scientific methods of

blood testing now make a state’s interest in avoiding stale

and fraudulent claims more attenuated. See e.g., Clark, 486

U.S. at 465, 108 S.Ct. at 1916 (citation omitted) (recogniz-

ing that “increasingly sophisticated tests for genetic

markers permit the exclusion of over 99% of those who

might be accused of paternity, regardless of the age of the

child.”). This, of course, can only be true where such

scientific evidence is available. However, in cases where

the State offers no scientific evidence of paternity, unde-

niably, the long-recognized troubles associated with

26

establishing paternity still exist. Recognizing that scien-

tific evidence is not always at the fingertips of those who

seek to establish or deny paternity, South Dakota’s statute

should not be considered violative of the Equal Protection

Clause merely because of the advancement of science in

general if the actual practice in South Dakota does not

partake of that progress.!°

Interestingly, in 1989 South Dakota deleted that por-

tion of SDCL § 25-8-9 which authorized retroactive appli-

cation. The State-contends that this earlier version of the

statute demonstrates that the legislature, at one time, felt

that there was little danger of stale or fraudulent litiga-

tion if the statute were to be applied retroactively. Mr.

Serr suggests this most recent, critical deletion indicates

just the opposite: the legislature amended the statute so

that it is no longer retroactive for the purpose of encour-

aging persons to bring timely claims, while memories are

fresh and witnesses are available. Again, the record does

not provide any insight into this question.

Pursuant to South Dakota law, specifically SDCL

§ 2-14-21, the South Dakota Supreme Court correctly held

that under South Dakota law, SDCL § 25-8-9 will not be

applied retroactively unless an express intention other-

wise appears. State v. Serr, 506 N.W.2d at 423. This hold-

ing does not violate any previous holding of this Court.

While there may be more of an issue regarding the consti-

tutional caliber of the 1978 version of SDCL § 25-8-9, that

question has yet to be addressed to or by the South

10 For example, it would be extremely helpful to have some

indication on the record as to how many paternity cases in

South Dakota actually utilize scientific evidence.

ee re

27

Dakota courts. Until there is such a determination by the

South Dakota court, jurisdiction by this Court is not

proper.

CONCLUSION

If the State’s presently unsupported assertions are

true, the day will not be long in coming before it has

another opportunity to prepare a proper record and ade-

quately present its equal protection argument to the

South Dakota courts. In the meantime, however, the ques-

tion should not be wrested away from the South Dakota

state courts; nor should this Court’s resources be

expended on an issue that has yet to be weighed for

constitutional validity - tested first on alternative

grounds — in the state courts. The State’s failure to iden-

tify and raise appropriate issues of pre-emption and con-

stitutional merit should not now be construed in its favor

so that the South Dakota state courts have no opportunity

to test the merit of the claims in the first instance.

For all of the foregoing reasons, the Respondent

respectfully requests that this Court deny the State of

South Dakota’s petition for writ of certiorari.

Respectfully submitted,

Wa .ty EKLUND

JOHNSON, EKLUND,

NICHOLSON, DOUGHERTY

& ABOUREZK

P.O. Box 149

Gregory, South Dakota 57533

Telephone (605) 835-8391

Counsel for Respondent