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

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“

No. 93-1091

IN THE FER 70 1994

SUPREME COURT OF THE UNITED Oba THES! exe |

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.

REPLY TO OPPOSITION TO

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

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTRODUCTI

CONCLUSION

THE QUESTION PRESENTED WAS

CONSIDERED BELOW.

A TWO YEAR STATUTE OF LIMITA-

TIONS ON PATERNITY ACTIONS MAY

NOT CONSTITUTIONALLY BE APPLIED

TO SHIELD THE PUTATIVE FATHER

FROM SUIT CONSISTENT WITH THE

EQUAL PROTECTION AND DUE PRO-

CESS CLAUSES OF THE UNITED

STATES CONSTITUTION.

TABLE OF AUTHORITIES

Cissna v. Tennessee, 246 U.S. 289 (1918) 4

Mills v. Habluetzel, 456 U.S. 91

(1982) ‘Poe Pie Pee

New York ex rei. Bryant v. Zimmerman,

278 U.S. 63 (1928) 4

Pickett v. Brown, 462 U.S. 1

(1983) passim

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

(S$.D. 1993) passim

Sweringen v. St. Louis, 185 U.S. 38 (1902) 4

Weber v. Aetna Casualty and Surety Co.,

406 U.S. 164, 175 (1972) 1

Yazoc and Mississippi Valley

Railroad Co. v. Adams, 180 U.S. 1 (1901) 4

}--

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,

Vv.

MERYL D. SERR,

Respondent.

INTRODUCTION

This Court held, twenty-two years ago,

that

imposing disabilities on the

illegitimate child is contrary to

the basic concept of our system that

the legal burden should bear some

relationship to individual

responsibility or wrongdoing.

Weber v. Aetna Casualty and Surety Co., 406

U.S. 164, 175 (1972). Accordingly, eleven

2 M<« mile ~ > - ar TT —~ =

years ago in Pickett v. Brown 46 U.S

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That is not, of course, the law. In

Sweringen v. St. Louis, 185 U.S. 38, 45-46

(1902), this Court said

We do not hold it >was necessary to

plead the claim in order to show it

was specially set up, but it must

have been so referred to and men-

tioned as to show that it was pre-

sent in the minds of the parties

claiming the right, or must have

been in some way presented to the

court.

Similarly, in New York ex rel. Bryant v.

Zimmerman, 278 U.S. 63, 67 (1928), this Court

said:

No particular form of words

phrases is essential, but only th

the claim of invalidit and t

ground therefor be brought to t

attention of the state court wi

fair precision and in due time.

See also Cissna v. Tennessee, 246 U.S. 2839,

293-294 (1918); Yazoo and Mississippi Valley

Railroad Co. v. Adams, 180 U.S. 1, 15 (1901).

The record in this case shows that the

South Dakota Supreme Court did, in fact,

consider and answer the question. The issue

was appropriately raised in the State’s

Supreme Court brief in a long passage which

the Respondent has assiduously ignored. The

State argued:

In the case of Clark v Jetter, [sic]

486 U.S. 456 (1988), our Supreme

Court was asked to determine the

constitutionality of Pennsylvania’s

six-year statute of limitations on

paternity actions.

Appellee’s Brief, Appendix A-110. A factual

description follows. The State then

commented:

In examining Clark’s Equal Protec-

tion argument, Jetter [sic] applied

an intermediate scrutiny standard on

the discriminatory classification of

illegitimacy. 16. 86 462. In

applying this standard in the con-

text of paternity actions, the Court

recognized that in the case of Mills

v. Habluetzel, 456 U.S., 91 (1982),

it established the following frame-

work.

Appellee’s Brief, Appendix A-111.

The State then examined the argument

which the Respondent insists is not part of

this case. The State said:

Serr argues that the 1978 version of

SDCL 25-8-9 should apply because the

State and its citizenry need to be

protected from, ‘the burden of liti-

gating state [sic] claims.’ (Serr

brief p. 9.) Speaking on this

issue, Jetter [sic] held Penn-

sylvania’s six-year statute of

limitations unconstitutional and

stated, ‘[wle are, however, con-

fident that the six-year statute of

limitations is not substantially

related to Pennsylvania’s interest

in avoiding the litigation of stale

or fraudulent claims.’ Id. at 464.

Appellee’s Brief, Appendix A-112.

The State’s brief pointed out that there

were other circumstances in which the state of

Pennsylvania allowed paternity actions to be

litigated after more than six years.

Appellee’s Brief, Appendix A-112. The State

then compared Pennsylvania’s statute to the

South Dakota statute in a footnote:

Similarly, South Dakota statutes in

1978 also allowed an action to be

brought after six years, if

paternity had ‘been acknowledged by

the father in writing or by the

furnishing of support.’ SDCL 25-8-9

(June 6, 1978).

Appellee’s Brief, Appendix A-113 n.1.

“

Thus, the state of South Dakota in

essence rejected Serr’s argument that the 1978

version of SDCL 25-8-9 should apply on the

grounds that it was unconstitutional. In

association with rejecting this claim, the

state cited and analyzed Clark v. Jeter, 486

U.S. 456 (1988), Mills v. Habluetzel, 456 U.S.

91 (1982), and also Pickett v. Brown, which

the State described as striking down

"Tennessee’s two year statute." Appellee’s

Brief, Appendix A-114.

The issue was certainly adequately raised

before the state Supreme Court. Did, then,

the South Dakota Supreme Court decide the

question? The court’s decision first set out

the statute in effect in 1978. State v. Serr,

506 N.W.2d 421, 422 (S.D. 1993); Appendix A-5S.

It stated further:

Serr contended that under the facts

of this case a cause of action for

paternity became barred in June

1980.

cs The state Supreme Court also drew

specific attention to the holding of the trial

court as follows:

Also, the trial court held that

‘{t})he statute of limitations is not

applicable to [Serr] as an

affirmative defense.’

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

A-7. (Brackets in original.)

The decision again drew specific atten-

tion to the statute of limitations as in

effect in 1978. The Court said:

Serr contends that the statute of

limitations found in SDCL 25-8-9, as

it existed in 1978, controls and

barred any action for paternity and

Support after June 6, 1980.

Id. Further, the state Supreme Court stated:

Dotson did not specifically raise

any constitutional issues on her own

behalf. However, her brief dis-

cussed several U.S. Supreme Court

decisions concerning Equal Protec-

tion and paternity/statute of limit-

ation 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.*; Appendix

A-9 n.1 (emphasis added).

The state Supreme Court’s comment that

Dotson (i.e. the State) did "not specifically

raise any constitutional issues on her own

behalf," id., simply constitutes a recognition

by the state Supreme Court that the State did

raise constitutional issues in response to the

argument made Mr. Serr. The remainder of the

quotation simply confirms that state court

considered and rejected the constitutional

argument made on the basis of the cases cited

by the State, i.e. Pickett, Mills and Clark,

with regard to the two year statute of

limitations. According to the state Supreme

Court, "faJll" of this Court’s decisions

"concerning Equal Protection and paternity/

Statute of limitations issues," id., cited by

the State were distinguishable.

Mr. Serr, in addition, has failed to make

any reference to the two dissents in this

case, both of which held the two year statute

of limitations on paternity suits unconstitu-

tional. Justice Wuest, in dissent, found that

the "South Dakota statute of limitations

failed the intermediate scrutiny test and

violates the Equal Protection Clause of the

Fourteenth Amendment." State v. Serr, 506

N.W.2d at 423; Appendix A-il (Wuest, J.

dissenting).

Justice Sabers, also in dissent, found

that:

As clearly outlined in Pickett

(two year statute of limitations

unconstitutional) SDCL 25-8-9 was

unconstitutional at all times prior

to 1986 because it violated the

Equal Protection Clause of the

Fourteenth Amendment.

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

18 (Sabers, J., dissenting).

It is also worth noting that at least one

of the state’s lower courts has come to the

conclusion that the State v. Serr decision has

foreclosed further examination of whether the

1978 statute of limitations is unconstitu-

tional. In a case which has just come to the

attention of this office, Weegar and Aurnger

v. Bakeberg, (Civ. 92-2769) (Second Judicial

Circuit) a maternal grandmother of Cassie Lane

Kenyon sought a determination of the paternity

of this 14-year-old. The putative father

moved to dismiss on the grounds that the 1978

Statute of limitations had run. The attorneys

for the child argued that the two year statute

of limitations was unconstitutional stating:

In 1979, when Cassie Lane Kenyon was

born, SDCL 25-8-5 allowed only two

(2) years for the parent of an ille-

gitimate child to seek establishment

of the child’s paternity and child

Support. In 1983, the U.S. Supreme

Court declared that a two (2) year

Statute of limitations in paternity

cases violated the Equal Protection

Clause of the United States Consti-

tution. Pickett v. Brown, 462 U.S.

1. . . . This declaration made two

year statutes of limitations void

and not enforceable.

Weegar and Aurnger v. Bakeberg, (Brief Regard-

ing Constitutionality of SDCL 25-8-5) at 1.

Lawyers for the child also cited Clark v.

Jeter, 486 U.S. 456 (1988), for the

proposition that SDCL 25-8-9 was unconstitu-

tional. Id. at 2.

The circuit court, however, granted the

dismissal. According to a brief letter

opinion:

Dear Counsel: The defendant has

filed a motion to dismiss the pro-

ceedings because of the statute of

limitations provided in SDCL 25-8-9.

Upon review of the recent South

Dakota Supreme Court decisions of

State of South Dakota, ex rel Dotson

v. Serr (opinion filed October 6,

1993) and State of Minnesota, ex rel

Hove v. Doese (opinion filed June 9,

1993), this Court finds the defen-

dant’s motion meritorious. Both

decisions have held that once an

action has been barred by the

statute of limitations, it cannot be

revived by subsequent legislation.

The Supreme Court in those decisions

has not found the statute unconsti-

tutional.

Mr. Farrell should draft an Order

dismissing the plaintiff’s claim.

Letter of Circuit Judge Meierhenry,

December 1, 1993.

iain

}

WWJ

Thus State v. Serr was cited for the

proposition that the two year statute oO

limitations was essentially unreviewable with

regard to constitutional attacks.’

‘e, . > ‘on! } _ >

State in its brief in

In sum, th

state Supreme Court argued the constitution-

ality of the 1978 statute of limitations. The

state Supreme Court, on review, noted the

reliance of Mr. Serr on that very statute.

the state concerning this Court’s decisions

"Concerning Equal Protection and paternity/

Statute of limitations issues" nd indicated

that "all .. . have been distinguished by

this writing and our reliance upon discussion

in Hove." State v. Serr, 506 N.W.2d at 423

n.*; Appendix A-9 n.l. Taking the Supreme

Court’s decision at face value, it considered

ithe state has been informed that this

case is being appealed to the South Dakota

Supreme Court.

and rejected the arguments made by the state

with regard to the two year statute of

limitations. Further, two of the Justices of

the Supreme Court in dissent did find the two

year statute of limitations as it existed in

1978 to be unconstitutional. Finally, it now

appears clear that the state’s circuit courts

regard the Serr case as binding on the issue

of whether the two year statute is

constitutional.

The argument that the South Dakota

Supreme Court did not consider the issue now

presented to this Court is accordingly without

merit.*

*Webb v. Webb, 451 U.S. 493 (1981), which

is relied on so heavily by Respondent, is

easily distinguishable. In Webb, the state

Supreme Court had not even "mentioned" the

federal question nor had it been "mentioned by

the dissenting opinion." Webb, 451 U.S. at

495. Further, the Petitioner had not, in the

state Supreme Court, cited to the federal

constitution or cases interpreting the Full

Faith and Credit Clause said to be at issue in

Webb. Here, of course, the state set out the

argument and federal case authority, including

A TWO YEAR STATUTE OF LIMITATIONS ON

PATERNITY ACTIONS MAY NOT CONSTITU-

TIONALLY BE APPLIED TO SHIELD THE

PUTATIVE FATHER FROM SUIT CONSISTENT

WITH THE EQUAL PROTECTION AND DUE

PROCESS CLAUSES OF THE UNITED STATES

CONSTITUTION.

Mr. Serr makes little serious effort to

evade the direct holdings of Mills v.

Habluetzel, 456 U.S. 91 (1982); Pickett v.

Brown, 462 U.S. 1 (1983); and Clark v. Jeter,

486 U.S. 456 (1988), which invalidated one,

two and six year statutes of limitations on

paternity actions. He mainly repeats his

claim that the issue had not been considered

by the state Supreme Court and argues that the

state Supreme Court had considered only the

issue of retroactive application of the

Mills, Pickett, and Clark, but the argument

and cases were deemed distinguishable by three

members of the court. The two dissenting

members of the court, in contrast to those in

Webb, specifically reached the question and

would have decided it adversely to the

Respondent.

}

| f

statute of limitations. Respondent’s Brief,

p. 19 et seq.

Respondent thus simply compounds his

other errors. An issue may indeed arise as to

whether a new statute of limitations may

revive an expired cause of action. This issue

should not arise, however, if the statute of

limitation which has allegedly run_ was

unconstitutional in the first place. As

Justice Sabers stated in his dissent in State

v._ Serr, 506 N.W.2d at 425; Appendix A-19

(Sabers, J., dissenting) :

Therefore, as in Pickett and Clark,

because the statute at issue was

unconstitutional, it is not, nor was

it ever, available to the defendant

as an affirmative defense.

Justice Sabers also stated on the footnote to

the text above:

Absent the statute, the child is on

equal footing with legitimate

children, and Dotson would have

until the child reached the age of

eighteen to establish paternity and

seek child support.

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

A-19 n.3.

Thus the retroactivit issue which

Mr. Serr brought to the attention of the South

Dakota Supreme Court is actually of little

relevance if, as the state argues, the two

year statute of limitations which is relied

upon is itself unconstitutional.

Mr. Serr also quibbles over the number of

children who could be harmed by the upholding

of the two year statute of limitations. He

does not, it should be noted, suggest any

reason to doubt the validity of statistics

from annual reports authored by the "South

Dakota Department of Health, Vital Records

Program." Nor can he offer any support for

his outlandish suggestion that "it is possible

that all of the approximately 8,600 children

so generally referred to have established

paternity." Respondent’s Brief 18. Evidence

before this Court does establish that at least

two children have been unable to establish

paternity: Jared Dotson, whose case is at

issue here and Cassie Lane Kenyon who has been

refused an opportunity to prove the paternity

of her alleged father on the basis of Serr.

CONCLUSIONS

The State of South Dakota thus

respectfully requests that this Court grant

the Petition for Writ of Certiorari, vacate

the decision below, and remand to the South

Dakota Supreme Court for reconsideration in

light of Mills, Pickett and Clark.

Respectfully submitted,

MARK W. BARNETT

ATTORNEY GENERAL

Counsel of Record

John P. Guhin

Deputy Attorney General

Patricia J. Froning

Assistant Attorney General

500 E. Capitol

Pierre, SD 57501-5090

Telephone: (605) 773-3215

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