# Petition for Writ of Certiorari — Hunter v. Porter > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1425%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 543 U.S. 1034 ## Text Supreme Court, U.S. (i) FILED 04-483 SEP 2 8 2004 IN THE Supreme Court of the United States NOREEN JUDITH HUNTER, PETITIONER Vv. NONA PORTER, ADMINISTRATRIX OF THE ESTATE OF JOSEPH 8S. HUNTER PETITION FOR A WRIT OF CERTIORARI TO THE APPEALS COURT FOR THE COMMONWEALTH OF MASSACHUSETTS PETITION FOR A WRIT OF CERTIORARI Noreen Judith Hunter 137 Nahant Street Lynn, Massachusetts 01902 (781) 842-3468 —————————— CURRY & TAYLOR @ WASH D.C. @ (202) 223-3160 @ USSCINFO.COM i QUESTIONS PRESENTED 1. Is it consistent with due process for the State court to dismiss with prejudice and without a trial as time-barred the plaintiffs civil action for declaratory relief filed prior to her putative father’s estate being settled, seeking adjudication that she is an out of wedlock child with a right to inherit from her putative father’s estate? . z.. Does it square with fundamental fairness to deny the plaintiff the right to a trial on the merits of her claim by denying her equitable tolling of the one year limitation in M.G.L. c. 197 s. 9 since the Legislature's standard in passing the M.G.L. c. 190 s. 7 was too strict and when the plaintiff was already asserting her right to inherit in earlier litigation which case did not become final for over a year after her putative father’s death? 3. Does the treatment of this plaintiff deny her rights under the Massachusetts Constitution and the Fourteenth Amendment, by providing unequal treatment of illegitimate children and _ favoring legitimate children. il TABLE OF CONTENTS QUESTIONS PRESENTED......cccsssscscsecscsssescsssececssserseeneccssssscssossesees i PARTIEG TO THE PROCTRIM I scssscscsisesiisiescssiiniiasscantemsennennnannni iii TABLE OF CONTENT G cvscccsnicsrcesniscisssesnsinetansnnctesinsnsmenninanennn iv TABLE OF A. UTRIORITUIG cccicicnccissccsntrsnnesannessnsascnceninnnnesionecness Vv OPINIONS BELOW ccsscessssssscssssnntivossnannnsesapsanentinatashsesensummnmannenanness 1 JURIBIICTION, ocsaciissarocosiinnadnsnianenstainanasdnandennaneiecsaliiemianmadaimmaiaaenth 1 RELEVANT PROVISIONS INVOLVED .........sscssssssssssssescseseeseseeeees 1 STATEMENT snccinsiscainiisnicsnsuttaninshsnhaniininiiaaneamnanaannaaaant 3 REASONS FOR GRANTING THE PETITION ....0.......cccsssssssseseeseenesees 11 CONCLUSION osccsossnnscinssisnissisiissdasicanichaitalsaheaianbiihaiianindaadnaiaianaiicae 22 APPENDIX APPEALS COURT DECIGION cssccinsisesscrscssscsesemnsenvensonsscoontecne la APPEALS COURT DECISION .......ssssscccscescnssccessosscscscocsossce 12a NORFOLK PROBATE & FAMILY COURT JUDGMENT....47a SIC FAR DENIAL. ..ccccccscsscssescscsascessescsccenssesesccnecessonsssosesess 48a ill TABLE OF AUTHORITIES BLIXT V. BLIXT, 437 MASS. 649 (2002), CERT. DEN., 537 U.S. RIES Nena eR 22 CHRISTO V. EDWARD G. BOYLE INS. AGENCY, 402 MASS. 815 RSE SEE eo nee et eT ee OR 17 COMMONWEALTH V. CHASE, 385 MASS. 461 (1982).............. 15 COMMONWEALTH V. GRUTTNER, 385 MASS. 474 (1982)....... 14 FLYNN V. CONNORS, 39 MASS. APP. CT. 365 (1995)........ 16,17 G.L.C. 209C, DEPARTMENT OF REVENUE V. ROE, 29 MASS. I a alah ince tahini 16,17 Re Wg i, GI 00 ci, Ot cscnccecsescesnenescecnenensnsonantenesscenniann 19 GOODRIDGE V. DEPARTMENT OF PUBLIC HEALTH, 440 nan En 22 HOUGHTON V DICKINSON, 196 MASS. 389 (1907) .................. 13 _ LOWELL V. KOWALSKI, 380 MASS. 663, 670 (1980) .....11, 12, 22 LYONS V. LABOR RELATIONS COMMISSION, 19 MASS. APP. EE ED yee Ea ee OC 15 MACKEEN V. KASINSKAS, 333 MASS. 695 (1956) ................... 17 Se , ssesaeeeseiosoinieacen 6 MATHEWS V. LUCAS, 427 U.S. 495, 506 ...........ccccccceseee 18, 21, 22 MCLEARN V. HILL, 476 MASS. 519 (1931)...........cccccccscsscesseees 17 MILLS V. HABLUETZEL, 456 U.S. 91 (1982)................ 15, 18, 21 NOREEN JUDITH HUNTER VS. NONA PORTER ADMINISTRATRIX OF THE ESTATE OF JOSEPH S. HUNTER, sa a cceuniieuneiinaninanabes 1 PAQUETTE V. KOSCOTAS, 12 MASS. APP. CT. 52 (JUNE 10, ISERIES Re ae ee a Re 13 POWERS V. WILKINSON, 399 MASS. 650 (1987) .........cccececeseee- 16 REED V. CAMPBELL 477 U.S. 852 (1986)........ccccccccosecssesecseseee 19 SHAFNACKER V. RAYMOND JAMES & ASSOC., 425 MASS. 724 alt cipieiaeaibbdasbiiaabiiaadaes 17 SULLIVAN V. FARRELL, 383 MASS. 119 (DECEMBER 3, 1980) Ssaaisiielashseieieebeasaelcaicnaieeiedinithbintainbindintnaindiieninaiibebbentlbiaaas 13 TELESETSKY V. WIGHT, 395 MASS. 868 ........cccccccececececesesoeseees 16 TRIMBLE V. GORDON, 430 U.S. 762 (1977)..........ccc.ccccccceeee 17, 21 iv WEBER V. AETNA CASUALTY & SURETY CO., 406 U.S. 164, STD... scanineniuinenneisnsiannbessnnaannmenmnnaninanannsennssnnnenassnta 18, 20, 21 1 OPINIONS BELOW The published decision and judgment of the Massachusetts Appeals Court in Noreen Judith Hunter vs. Nona Porter Administratrix of the Estate of Joseph S. Hunter, 57 Mass. App. Ct. 233 (2003), affirming the motion judge of the Probate and Family Court Department, is set forth in the Appendix hereto (App. 1-11). The published decision and judgment of the Massachusetts Appeals Court in Kathleen C. Keville, temporary guardian v. Marian Bourne McKeever et al., 42 Mass. App. Ct. (1997) affirming the trial judge of the Probate and Family Court, is set forth in the Appendix hereto (App.11-46). The order of the Supreme Judicial Court of Massachusetts in Noreen Judith Hunter v. Nona Porter, Administratrix of the Estate of Joseph S. Hunter, Mass. (6/30/04), denying the Plaintiff- appellant’s Application For Further Appellate Review, is set forth in the Appendix hereto (App.47). The unpublished Order of the Norfolk Division of the Probate and Family Court Department of Massachusetts (Smoot, J.) in Noreen Judith McKeever Hunter v. Nona Hunter Porter, Norfolk Probate Docket No. 97E0118(2/20/99), is set forth in the Appendix hereto (App.48). JURISDICTION The order of the Supreme Judicial Court of Massachusetts, the state court of last resort having jurisdiction to review the decisions of all inferior state courts, refusing to allow further appellate review of the 2 Appeals Court’s affirmance of the Probate and Family Court’s decision, was entered on June 30, 2004. (App.47). RELEVANT PROVISIONS INVOLVED United States Constitution, Amendment XIV, Section 1: ... No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state 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 law. Massachusetts General Law Chapter 190 Section 7 .. A person may establish paternity, if within the period provided under Section 9 of Chapter One Hundred Ninety Seven for bringing actions against executors and administrators, such person either (a) delivers to the executor or administrator an authenticated copy of a judgment rendered by a court of competent jurisdiction during the decedent’s lifetime adjudging the decedent to be the father of the person born out of wedlock, or (b) commences, in a court of competent jurisdiction, an action in which the executor or administrator is a named party and in which such paternity is ultimately proved. - Massachusetts General Law Chapter 197 Section 9 3 . an administrator shall not be held to answer to an action by a creditor of the deceased unless such action is commenced within one year after the date of death of the deceased .. . Massachusetts General Law Chapter 197 Section 13 .. A creditor of the deceased, whose right of action shall not accrue within one year after the dare of death of the deceased, may present his claim to the probate court at any time before the estate is fully administered; and _ if,upon examination thereof, the court shall find that such claim is or may become justly due from the estate, it shall order the... administrator to retain in his hands, sufficient assets to satisfy the same. ... STATEMENT On December 11, 1997, Joseph S. Hunter’s (“Joseph”) daughter Noreen Hunter (“Noreen”) filed a ’ Complaint for Declaratory Judgment along with the Plaintiffs birth certificate in the Norfolk Probate Court, which was served upon her half-sister, Nona Porter (“Nona”), the Administratrix of the Estate of Joseph S. Hunter on December 12, 1997, claiming her rights as an illegitimate child to inherit from her father, Joseph, who died intestate on April 27, 1996. Noreen brougkt a Motion for a Speedy Trial on July 3, 1998. A Pretrial Conference was held on October 5, 1998. Both parties filed Pretrial Memoranda. On November 23, 1998, the Porter filed a Notice of Objection and a Motion to Dismiss for Failure to Comply with M.G.L. c. 197 s. 9 and M.G.L. c. 190 s. 7. On January 7, 1999, Noreen filed an Opposition to 4 Porter’s Motion to Dismiss for Failure to Comply with M.G.L. c. 197 s. 9 and M.G.L. ¢. 190 s. 7 with Exhibits. The Judgment on Motion to Dismiss was ordered on January 19, 1999 and docketed on February 26, 1999. On March 17, 1999, Noreen Hunter filed her Notice of Appeal. Joseph was born in 1905 and emigrated from Lithuania to the United States in 1924. In 1928, he married Edythe Hunter and subsequently had two children, a daughter, the Respondent, Nona Porter, and a son, Ronald Hunter (“Ron”), born in 1943.Over the next sixty years, Joseph amassed substantial assets including certain real property on Marlborough Street and Harvard Avenue in Boston. From the early 1950’s through 1987, Marian McKeever (“Marian”) worked for Joseph as his bookkeeper and secretary. In 1953, Marian moved into Joseph’s Marlborough Street property and began collecting rents there, keeping them for herself . Marian claimed that beginning in the early 1950’s, she and Joseph had a personal relationship and that their relationship produced a daughter, the Petitioner, Noreen Judith Hunter, born on December 9, 1955. There was no formal adjudication of Joseph’s paternity of Noreen at that time. However, Marian often used the name Marian Hunter and in September of 1980, shortly after Hunter formally acknowledged Noreen as his daughter in an affidavit, Noreen changed her name to Noreen Judith Hunter. Sometime in 1982, after his wife had passed away, Joseph moved into the Marlborough Street property with Marian and from that time forward, Marian was Joseph’s companion and_ personal attendant. His behavior at this time was somewhat erratic and it was eventually found that from August, 5 1982, Joseph was incapable of handling his own affairs. In December of 1982, he executed a deed conveying a joint interest in the Marlborough Street property to Marian. In December of 1990, Nona filed a petition for conservatorship in the Probate and Family Court Department alleging that Joseph had become incapacitated by reason of mental weakness. On May 24, 1991, Noreen filed a petition for permanent guardianship and eventually Attorney Kathleen Keville (“Keville”) was appointed temporary guardian of Joseph’s person and estate. Shortly thereafter, Keville filed a complaint seeking to set aside Joseph’s two conveyances of his real estate to Marian and Noreen in 1982 and 1990, respectively. A dispute arose over Joseph’s assets between Marian and Noreen (Joseph’s out of wedlock daughter) on the one side and Nona Porter, Joseph’s other daughter, on the opposing side. A lengthy trial ensued and an amended judgment entered on January 24, 1994. During the course of the proceedings, Marian claimed that Noreen was Joseph’s daughter. However, the trial judge expressly found that there was no “credible evidence’ that Noreen was, in fact, Joseph’s daughter and accordingly he made no adjudication of Joseph’s paternity of Noreen. Besides other post- judgment motions seeking to undo this judgment, Marian again sought to have a paternity test conducted to determine that Joseph was Noreen’s father. The trial judge, however, refused to do so “without prejudice to the filing of an appropriate action.” Marian and Noreen appealed this judgment to the Appeals court. On April 27, 1997, while this appeal by Marian and Noreen from the judgment was still Seg 6 awaiting a resolution by the Appeals Court, Joseph died intestate. On January 31, 1997, in Keville v. McKeever, (A1- 12), the Appeals Court affirmed the judgment. In so ruling, the opinion of Judge Armstrong adverted to the fact that Marian had alleged below that Joseph was Noreen’s father, that the trial judge rejected that claim because he found no “credible evidence” to support this claim and that accordingly “there was (and has been) no adjudication of paternity. . .”. The Supreme Judicial Court denied further appellate review on March 28, 1997, 424 Mass. 1107. : On May 16, 1997, Nona was appointed the administratrix of Joseph’s estate and on December 11, 1997, before Joseph’s estate was settled, Noreen filed a complaint against Nona as administratrix seeking a declaratory judgment that she (Noreen) is the out of wedlock daughter of Joseph and is therefore entitled to a one-third share of his estate. She also sought a speedy trial and a notice of lis pendens to prevent Nona from selling any of the estate’s assets without accounting to Noreen for her one-third share. Nona subsequently moved to dismiss Noreen’s complaint as time-barred under the provisions of G.L.c. 190, Section 7, and G.L.c. 197, Section 9(a), because Noreen’s action was not begun within one year of Joseph’s death. G.L. c. 190, Section 7, provides. inter alia that If a decedent has acknowledged paternity of a person born out of wedlock or if during his lifetime or after his death a decedent has been adjudged to be the father of a person born out of wedlock that person is heir to his father and of any person from whom his father might have 7 inherited, if living, and the decedents of a person born out of wedlock shall represent that person and take-by descent any estate which such person would have taken, if living. A person may establish paternity if, within the period provided under section nine of chapter one hundred and ninety-seven for bringing actions against executors and administrators, such person either (a) delivers to the executor or administrator an authenticated copy of a judgment rendered by a court of competent jurisdiction during the decedent’s lifetime adjudging the decedent to be the father of a person born out of wedlock, or (b) commences, in a court to competent jurisdiction, an action in which the executor or administrator is a named party and in which such paternity is ultimately proved. (emphasis supplied). Further, Section 9(a) of G.L. c. 197 provides that “an executor or administrator shall not be held to answer to an action by a creditor of the deceased unless such action is commenced within one year after the date of death of the decease .. .” Noreen opposed the motion by adducing proof that Joseph had on serial occasions during his life expressly acknowledged his paternity of Noreen by notarized affidavit, by statements to his attorneys and in other litigation with Nona and Ron. Moreover, Noreen adduced further evidence that Nona (and Ron) had expressly acknowledged during discovery in a 8 related suit they had brought against Joseph that Noreen was the out of wedlock daughter of Joseph. Noreen further contended that the earlier consolidated action of Keville v. Mckeever, (A.12-46) contained a claim on her part that she was Joseph’s out of wedlock daughter and that a paternity test upon Joseph (who was then hospitalized) was mandated in order to prove her claim, a paternity test which Nona opposed. Besides finding no “credible evidence” to support his claim, the Probate judge denied Noreen’s serial motions to compel a paternity test of Joseph “without prejudice to renewal after the filing of an appropriate action.” Noreen therefore argued that this Keville v. McKeever suit, begun in 1991 and not actually concluded until June of 1997, more than one year after Joseph’s death, became by the circumstances of Joseph’s intervening death, her repeated requests in that suit for paternity testing and the Probate Judge’s advice to renew such request after the filing of “an appropriate action,” an integral first part of the “action” which should have been “commence[d] in a court of competent jurisdiction...in which the executor or administrator is a named party and in which such paternity is ultimately proved, “as required by G.L.c. 190, Section 7(b). The second part of the “action,” Noreen claimed, was this declaratory action she brought against Nona on December 11, 1997, a reasonable time after the Supreme Judicial Court had denied further appellate review in Keville V. McKeever on March 28, 1997, and considering the ninety days for bringing a petition for certiorari to the United States Supreme Court (June © 24, 1997), just 167 days after the matter of Keville v. McKeever was finally concluded. As Noreen argued, 9 her present suit to establish Joseph’s paternity and to qualify as his daughter for the purpose of his estate distribution is a continuation of the /[Keville v. Mckeever] litigation . . .; that at the moment of Joseph[‘s] death the litigation had not been finally adjudicated (the Supreme Judicial Court decision was rendered on March 28, 1997); that without the Supreme Judicial Court decision the within complaint could not have been brought and [she] should have had a reasonable time thereafter in which to file the within complaint (a 90-day waiting period should also be calculated to determine if the state court action would be appealed to the United States Supreme Court); that Judge Smoot contemplated maintaining = jurisdiction of this ongoing and continuing request to determine the paternity; that since the /Keville v. McKeever] litigation was ongoing at the moment of Joseph[‘] death, [Section}.(b) of c. 190, Section 7 was immediately satisfied and since there has been no final determination as yet of the paternity issue, the outcome is yet to be determined as to whether or not paternity is ultimately proved. The Probate and Family Court Department, Smoot, J., allowed Nona’s motion to dismiss Noreen’s complaint and upon Noreen’s appeal of that ruling, the Appeals Court affirmed the decision on January 29, 2003, in a published opinion. Hunter v. Proter, (A.1-11). Writing for the Court, Judge Duffly concluded that where paternity was contested, and action such as Noreen’s must be commenced within one year form the date of the death of the deceased; and “{blecause Se 10 Noreen’s complaint was filed nearly twenty months after the date of Joseph’s death, it was properly dismissed.” (A.6). In reaching this result, the intermediate appellate court treated Nona’s motion to dismiss as one for summary judgment under Mass. R. Civ. P. 56 since it appeared that the Probate Judge considered the sixteen exhibits attached to Noreen’s opposition. (A.8). In addition, the Court took notice of Noreen’s proof that Joseph had already expressly acknowledged Noreen as his daughter by affidavit in 1980, and through communications with his attorneys thereafter. (A.9). Moreover, the opinion made note of the fact that Noreen had unsuccessfully attempted at various times in the earlier Keville v. McKeever litigation to prove Joseph’s paternity by tests and that her post-judgment motion there for such relief was denied by the Probate Judge “without prejudice to renewal after the filing of an appropriate action.” (A.9). Finally, none of Noreen’s evidence showing that Nona her self had admitted in related litigation with Joseph that Noreen was in fact his acknowledged daughter was referenced by the Appeals Court’s decision. While the Court agreed with Noreen that the second sentence of G.L.c. 290, Section 7, providing that an acknowledgment of paternity by the putative father during lifetime that a person was his offspring would obviate the need for commencing a separate action to establish that fact, it disagreed with Noreen’s claim that because Nona was on notice of Joseph’s serial acknowledgments of paternity in Keville v McKeever, this sentence’s requirements were met and that she (Noreen) was therefore entitled, without more, to share in Joseph’s estate. (A.11). Instead, the Court ruled that where the issue of paternity is contested, “the 11 additional requirement set forth in c. 190, Section 7, applicable to the circumstance, namely, commencement of an action to establish paternity, must be satisfied.” (A.4). Citing Lowell v. Kowalski, 380 Mass. 663, 670 (1980), the Appeals Court further observed that Joseph’s notarized statement attesting to his paternity of Noreen, relied upon by Noreen in her opposition to Nona’s motion to dismiss, “would, upon admission in evidence and established to be the voluntary, knowing statement of the decedent, support an adjudication of paternity.” (A.10). However, because the issue of paternity was contested, Noreen was bound under G.L.c. 190, Section 7, either to deliver an adjudication of paternity or to commence an action in a court of competent jurisdiction against Nona within one year of Joseph’s death. (A.10). Finally, the Appeals Court ruled in a footnote that it rejected Noreen’s claim, made without cita- tion of authority, that the require- ment of commencing an action within one year was fulfilled upon the filing of her petition for permanent guardianship on May 24, 1991. (A.11). Noreen then filed an Application for Leave to Obtain Further Appellate Review of this decision with the Supreme Judicial Court of Massachusetts. Following the Supreme Judicial Court’s denial of Noreen’s application on June 30, 2004 (App.47), Noreen now brings her petition in this Court seeking a writ of certiorari to the Appeals Court of Massachusetts. 12 REASONS FOR GRANTING THE WRIT Substantial Reasons Affecting the Public Interest and An Emerging Consensus Among the Lower Courts That Imposing The Short One Year Limitation In The Treatment Of Illegitimate Children Is A Violation of Due Process Warrants the Granting of This Petition. In Lowell v. Kowalski, 380 Mass. 663 (May 14, 1980), the Supreme Judicial Court ruled that an illegitimate daughter was entitled to inherit from her intestate father where the father had openly acknowledged paternity orally and in writing but had never formally acknowledged the child nor been adjudicated the father. The Lowell Court held, “We accept a judicial adjudication of paternity as one appropriate method of establishing inheritance rights. If, however, judicial adjudication were the only permitted method of establishing those rights, the classifications would be unconstitutionally restrictive because it would unnecessarily foreclose the rights of illegitimates who could convincingly establish their parentage. An option limited to an adjudication of _ paternity would deny, for example, rights to a child whose natural father publicly and _ consistently acknowledge his child and did so in writing, perhaps even under oath.” In the case at bar, the Plaintiff surely complied with the holdings of the Lowell Court. On July 7, 1980, the legislature approved amendments to G.L. c. 190 s. 6 and 7 by adding a provision that acknowledgment or adjudication without intermarriage is sufficient to make the illegitimate child L&E 13 an heir of the father. The amendment also provided that a person may establish paternity, if within the period for creditors’ actions prescribed by G.L. ¢. 197 s. 9, the person either: * delivers to the administrator an authenticated copy of a judgment adjudicating the decedent during his lifetime to be the father of an illegitimate person; or * commences an action in which the administrator is a named party and in which such paternity is ultimately proved. In Sullivan v. Farrell, 383 Mass. 119 (December 3, 1980), the Court, following Lowell and further determined that, “Farrell’s illegitimate child was his next of kin for the purpose of recovery under G.L. c. 229 Section 2...” In Paquette _v. Koscotas, 12 Mass. App. Ct. 52 (June 10, 1981), the illegitimate child of a decedent who had acknowledge the child as his during his lifetime, although not in writing, was entitled to status of next of kin and qualified for appointment of her father’s estate. In Higgins v.Ripley, 16 Mass. App. Ct. 928 (1983) it was held that in order for an illegitimate child to inherit from its father by reason of acknowledgment of paternity pursuant to G.L. c. 190, section 7, neither a writing acknowledging paternity nor a stipulation of paternity is necessary. This case was based upon an interpretation of Houghton v Dickinson, 196 Mass. 389 (1907) which declared that, “...the subsequent recognition of the child as his offspring by the father, which recognition may be shown by conduct, as well as by declarations. The Houghton Court held the following concerning conduct: “...such recognition [(sic) 14 of parentage] may be shown by conduct as well as by declarations.. ..During their engagement, and under a promise of marriage intercourse took place between the decedent and the respondent's mother. If upon knowledge of her pregnancy, at first he refused to perform his contract, neither then, nor at birth, did he deny the paternity of the child, but declared him to be his own, and consented that he should be named after him.” : As in the cases cited above, and argued before the Probate Court on January 7, 1999, Noreen’s deceased father during his lifetime had acknowledged that he was her father, not only orally and in writing, but also by his conduct. The cases cited above, both before and after the 1980 amendment to M.G.L. c. 190 s. 7, support the facts in the case at hand. It should be noted that the Court in Commonwealth _v. Gruttner, 385 Mass. 474 (1982), declared, “We conclude that no time bar blocks the bringing of an action to adjudicate the paternity of an illegitimate child.” The Court held that under M.G.L. c. 273 s. 15 and M.G.L. ¢c. 209C no statute of limitations applies to an action for the adjudication of paternity. The Court further stated, “On the rare occasions when the question of a limit in time to the adjudication of paternity has been before this Court, we have consistently held that there is no statute of limitations that applies...The fact remains that the passage of time bears no logical relation to the question whether a man is actually the father ofa child.” Equity dictates that no statute of limitation should be enforced in the case at hand. There should be equitable tolling of the one year limitation in M.G.L. c. 197 s. 9 because the Legislature's 15 standard in passing the M.G.L. c. 190 s. 7 was too strict and denies the Plaintiff her rights under the Massachusetts Constitution and the Fourteenth Amendment of the US Constitution, by providing unequal treatment of illegitimate children and favoring legitimate children. Because the Plaintiff and the Defendant were in litigation from 1993 until as late as June 28, 1997, a constructive tolling agreement of the “one year statute” should have been effected since the running of the statute would begin when the Plaintiff “learned or reasonably should have known, of the harm caused by the Defendant’s conduct.” See Williams v. Ely, 423 Mass. 467 (1996). In Mills v. Habluetzel, 456 U.S. 91 (1982), where a one year statute of limitations for establishing paternity of an illegitimate child was challenged (and found vulnerable), equal protection analysis focused on two related requirements. First, the period for obtaining support...to illegitimate children must be sufficiently long in duration to present a reasonable opportunity...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.” See Lyons v. Labor Relations Commission, 19 Mass. App. Ct. 562 (1985). It is now undisputed that “a father’s obligation to support an illegitimate child commences at the time he knows or should know that he is the father of the child, or such time he is adjudicated the father under G.L.c. 273, section 15...” Commonwealth v. Chase, 385 Mass. 461 (1982). 16 In Flynn _v. Connors, 39 Mass. App. Ct. 365 (1995), the Court wrote in footnote #10, “The statute of limitations issue appears to be a_ particularly problematic one. Although we have noted that ‘the six- year statute of limitations, applicable under G.L. c. 273, [is not] applicable to civil actions under G.L.c. 209C, Department of Revenue v. Roe, 29 Mass. App. Ct. at 968, the limitations period that is applicable to such actions (none appearing in c. 209C itself) has never been directly adjudicated. On September 18, 1985 the Supreme Court in Telesetsky v. Wight, 395 Mass. 868 decided to grant a constructive allowance of an extension of time under G.L. c. 197 s. 9 because of the “administrator’s failure to act on a claim within sixty days after the expiration of the four month period for presenting the claim and did not warn the claimant that the claim would be barred unless she brought action on it within sixty days. Furthermore receipt of the claim by the administrator tolls the nonclaim statute and shifts the burden to him. G.L.c. 197 section 9, first par. (a), second par. Under the provisions of section 9, third par., the administrator may notify the creditor that the claim has been allowed or disallowed. If the admini- strator fails to give notice of disallowance to the claimant within sixty days, following the expiration of the 4-month period running from the date of the approval of his bond, it ‘shall have the effect of a notice of allowance.” In Massachusetts the constitutionality of issues surrounding illegitimate children have been sparsely addressed. The Court held in Powers v. Wilkinson, 399 Mass. 650 (1987), that “state action is not involved, nor is the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States implicated, by the application of a common law rule of 17 construction to interpret the word ‘issue’ to mean ‘only persons of the class were born in lawful wedlock’: therefore no constitutional rights of a persons thereby excluded from a class of beneficiaries of a trust would be violated by this Court’s so doing.” The case at bar does involve state action through its vehicles G. L. ¢.197 § 9 and G. L. c. 190 § 7. In Flynn _v. Connors n, 39 Mass. App. Ct. 365 (1995), the Court wrote in footnote #10, “The statute of limitations issue appears to be a particularly problematic one. Although we have noted that ‘the six- year statute of limitations, applicable under G.L. c. 273, lis not] applicable to civil actions under G.L.c. 209C, Department of Revenue v. Roe, 29 Mass. App. Ct. at 968, the limitations period that is applicable to such actions (none appearing in c. 209C itself) has never been directly adjudicated. Equitable tolling is a potential remedy for the injustice suffered by the Plaintiff. Equitable tolling of the Statute of Limitations has been allowed in Massachusetts in the following cases: McLearn v. Hill, 476 Mass. 519 (1931); MacKeen v. Kasinskas, 333 Mass. 695 (1956); Christo v. Edward G. Boyle Ins. Agency, 402 Mass. 815 (1988); and Shafnacker v. Raymond James & Assoc., 425 Mass. 724 (1997). The Supreme Court of the United States has spoken out quite clearly on discrimination involving the classes of illegitimate children. The first instance in recent history to address these issues was in the case of Trimble v. Gordon, 430 U.S. 762 (1977). The Trimble Court ruling on Section 12 of the Illinois Probate Act, which allowed illegitimate children to inherit by intestate succession only from their mothers (though under Illinois law, legitimate children could inherit by intestate succession from both their mothers and 18 fathers) held that Section 12 of the Illinois Probate Act violated the Equal Protection Clause of the Fourteenth Amendment. The Trimble Court further held the following : A classification based on illegitimacy such as that challenged here is not “suspect” so as to require that it survive “strict scrutiny,” Mathews v. Lucas, 427 U.S. 495, 506. Nevertheless, this Court requires, “at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose,” Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, : 172, and the Court’s previous decisions in this area show that the standard is “not a toothless one.” Mathews v. Lucas, supra at 510. P. 767. Section 12 cannot be justified on the ground that it promotes legitimate family relationships. A State may not attempt to influence the actions of men and women by imposing sanctions on the children born of their illegitimate relationships. Pp. 768-770. Difficulties of proving paternity in some situations do not justify the total statutory dis- inheritance of illegitimate children whose fathers die intestate. Section 12 is not “carefully tuned to alternative considerations,” Mathews v. Lucas, supra at 513, as is illustrated by the fact that, in the instant case, the decedent had been determined to be the appellant child’s father in a state court paternity action. Pp. 770- 773. The fact that appellant’s father could have provided for her by making a will does not save § 12 from invalidity under the Equal Protection Clause. Pp. 773-774. The United State Supreme Court spoke out again in the case of Mills v. Habluetzel, 456 U.S. 91 (1982) regarding a Texas Statute which provided that a paternity suit to identify the natural father of an - —oO EE 19 illegitimate child for purposes of obtaining support must be brought before the child is one year old, or the suit was barred. The Texas Court of Civil Appeal, affirming the Lower Court, held that the one year limitation was not told during minority (the child was one year and seven months old) and did not violate the Equal Protection Clause of the Fourteenth Amendment. The United States Supreme Court reversed the decision of the Texas Court of Appeals and held the following: - The one year period for establishing paternity denies illegitimate children in Texas the Equal Protection of law. A State that grants an opportunity for legitimate children to obtain paternal support must also grant that opportunity to illegitimate children, Gomez v. Perez, 409 U.S. 535, and this latter opportunity must be more than illusory, although it need not be coterminous with the procedures accorded legitimate children. The period for obtaining support granted by Texas to illegitimate children must be of sufficient duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf. And the time limitation on that opportunity must be substantially related to the State’s interest in avoiding the litigation of stale or fraudulent claims. Section 13.01 fails to meet either of these requirements and thus denies equal protection. In 1986, the United States Supreme Court spoke out again in the case of Reed v. Campbell 477 U.S. 852 (1986). The Court declared that the interest, protected by the Fourteenth Amendment, in avoiding unjustified discrimination against children born out of wedlock, requires that appellant’s claim to a share in her father’s estate be protected by the full applicability of Trimble. 20 There is no justification for the State’s rejection of the claim. At the time appellant filed her claim, Trimble had been decided, and her father’s estate remained open. Neither the date of the father’s death nor the date appellant’s claim was filed should have prevented the applicability of Trimble. Those dates, either separately or in combination, had no impact on the State’s interest in-orderly administration of the estate. Pp. 854-857. Further, the Reed Court took notice of the fact that the estate was still open when the appellant formally notified the administratrix and the Probate Court of her claim to a one-sixth share of the estate, prior to filing a former complaint. In the case at hand, the Plaintiff had formally notified the administratrix and the Probate Court of her claim during the proceedings in the Suffolk Probate case. Moreover, the estate was still open when the Plaintiff filed her complaint on December 11, 1997. The constitutionality of the Massachusetts statutory provisions appeared to impose special burdens on illegitimate children. Plaintiff contends that a State may not justify discriminatory treatment of illegitimates in order to express its disapproval of their parents’ misconduct. The effects of G. L. ¢.197 § 9 and G. L. c. 190 § 7 impose special burdens on illegitimate children. “It is true, of course, that the legal status of illegitimacy, however defined, is, like race or national origin, a characteristic determined by causes not within the control of the illegitimate individual, and it bears not relation to the individual's ability to participate in and contribute to society. The Court recognized in Weber v. Aetna Casualty & Surety Co., 406 U.S.164 (1972) that visiting condemnation upon the child in 21 order to express society’s disapproval of the parents’ liaison is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bar 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 unjust way of deterring the parent.’ 406 U.S. at 175.” Mathews v. Lucas, 427 U.S. 495, 505 (1976). The Plaintiff contends that the application of the statutes violate the rights of the nonmarital child to equal protection of the laws as guaranteed through the laws of the Commonwealth by the Fourteenth Amendment to the United States Constitution. In relevant part the Fourteenth Amendment declares “no state shall...deny to any person within its jurisdiction the equal protection of the laws.” This Court should provide the equal treatment protected by the Fourteenth Amendment to the Constitution and avoid unjustified discrimination against children born out of wedlock by allowing the Plaintiff herein the remedy of equitable tolling of the one year limitation in G. L. ¢.197 § 9 because the legislature’s standard in passing G. L. c. 190 § 7 and Plaintiff has been denied her rights’ under Massachusetts law and the Fourteenth Amendment of the United States Constitution. It is beyond dispute that an out of wedlock child has a constitutionally protected right to inherit from her father and to truncate that right with an inrealistically short limitations period for realizing that right is a denial of the equal protection of the laws. Mills v. Habluetzel, 456 U.S. 91, 97-101(1982). See Trimble v. Gordon, 480 U.S. at 769-771; Lowell v. 22 Kowalski, 380 Mass. 663, 669-670 (1980); Mathews v. Lucas, 427 U.S. 495, 505-506 (1976). This Court has also recognized that the © expanding realities of the American family invoke new protections to insure that those persons whose rights are now emerging in this expanded reality are denied neither due process nor the qual protection of the laws. Goodridge v. Department of Public Health, 440 Mass. 309, 330-334 (2003). Blixt v. Blixt, 4837 Mass. 649 (2002), cert. Den., 537 U.S. 1189 (2003). Noreen thus submits that as long as her putative father’s estate was still not settled, she has a right to bring this action to establish paternity and share in the estate irrespective of the running of the limitations period of Section 9(a). - CONCLUSION For all the reason identified herein, this Court should grant Noreen’s petition for certiorari to the Appeals Court of Massachusetts, enter an order vacating the judgment below and remanding the matter to the Norfolk Division of the Probate and Family Court Department for a trial of Noreen’s claims; and/or provide her with such relief as is fair and just in the circumstances. Respectfully submitted, NOREEN JUDITH HUNTER (pro se) Noreen Judith Hunter 137 Nahant Street Lynn, Massachusetts 01902 (781) 842-3468 Ee la (any footnotes trail end of each document) LEXSEE 57 MASS APP CT 233 NOREEN JUDITH HUNTER vs. NONA PORTER. nl No. 00-P-348 APPEALS COURT OF MASSACHUSETTS 57 Mass. App. Ct. 233; 782 N.E.2d 530; 2003 Mass. App. LEXIS 112 March 15, 2002, Argued January 29, 2003, Decided SUBSEQUENT HISTORY: [***1] As Corrected March 14, 2003. Review denied by Hunter v. Porter, 442 Mass. 1104, 810 N.E.2d 1230, 2004 Mass. LEXIS 475 (2004) PRIOR HISTORY: Civil action commenced in the Norfolk Division of the Probate and Family Court Department on December 11, 1997. A motion to dismiss was heard by John M. Smoot, J. Keville v. McKeever, 42 Mass. App. Ct. 140, 675 N.E.2d 417, 1997 Mass. App. LEXIS 26 (1997) DISPOSITION: Judgment affirmed. 2a LexisNexis(R) Headnotes COUNSEL: Roberta Golden for the plaintiff. John T. Daley for the defendant. JUDGES: inion: Duffly, Kass, & Trainor, JJ. OPINIONBY: DUFFLY OPINION: [**531] [*233] DUFFLY, J. Ina proceeding for declaratory judgment, Noreen Judith Hunter (Noreen) sought an adjudication that she was born out of wedlock to Joseph S. Hunter (Joseph) and Marian McKeever (Marian), thereby to establish her right to inherit from Joseph's estate. The plaintiff's complaint, filed nearly twenty months following Joseph's death, was dismissed as not having been timely filed as required by G.L. c. 190, § 7,n2 and [*234] G.L. c. 197, § 9(a). n3 The former statute establishes procedures for a child born out of wedlock seeking to share in the assets of the estate of a father dying intestate; the latter statute imposes a one-year limitation period for bringing an action against an executor or administrator. The plaintiff's appeal raises the question whether the one-year limitation [**532] period for bringing an action to establish paternity that is imposed through operation of G.L. c. 190, § 7, is inapplicable when the decedent has, by word or deed during his lifetime, acknowledged paternity of a person seeking to inherit from his estate. n4 We affirm the dismissal. a 3a [*235] [***4] In 1924, Joseph immigrated to the United States where, over the next sixty years, he amassed substantial assets. Id., 42 Mass.App.Ct at 141-142. Marian, Joseph's long-time bookkeeper, secretary, and, later, personal attendant, gave birth to Noreen on December 9, 1955. n6 At the time of Noreen's birth, Marian had been employed [*236] for five years as Joseph's bookkeeper. Joseph was then married, and had been since 1928; he and his wife had two children, a son and Nona Porter. Joseph's [**533] wife died in 1982. Sometime in 1982, Joseph moved into one of his properties with Marian. Joseph died intestate on April 27, 1996; Nona Porter was appointed to administer Joseph's estate and, in that capacity, is the defendant in the matter now before us. [***5] In our prior opinion, we chronicled Joseph's increasing dementia and the stripping of his assets by Marian, Noreen, and Marian's son, Frank. Id., 42 Mass. App.Ct. at 144-148. We found no reason to disturb the judgment that, beginning in at least August, 1982, Joseph was incompetent and "that the McKeevers [Noreen, Marian and Frank] have no interest in Joseph's estate." Id., 42 Mass.App.Ct. at 147, 155. n7 That conclusion, however, was not based upon the right of a child born out of wedlock to seek to inherit from her father's estate pursuant to G.L. c. 190, § 7, and is, therefore, not dispositive of the issues here on appeal. As we have observed, Joseph died in April, 1996. Noreen's complaint was filed on December 11, 1997. In 4a that complaint, Noreen alleges that [***6] she is the out of wedlock child of Marian and Joseph, and she asks that "the Court adjudicate the Plaintiff to be the daughter of Joseph S. Hunter for the purposes of establishing entitlement to his estate." Noreen's materials in opposition to the defendant's motion to dismiss contain documents supporting her assertion that Joseph acknowledged paternity of Noreen during his lifetime. See note 5, supra. n& Discussion. Under G.L. c. 190, § 7 [***7] , the limitations period set out in G.L. c. 197, § 9, is made applicable to actions filed [*237] by a person born out of wedlock seeking to establish a right to inherit from her father. Thus, where paternity is contested, the action must be commenced within one year from the date of death of the deceased. See Flannery v. Flannery, 429 Mass. 55, 59, 705 N.E.2d 1140 (1999) ("G.L. c. 197, § 9(a), bars the plaintiff's claim one year from the date of the decedent's death"); Eresian v. Mattei, 52 Mass.App.Ct. 16, 17, 750 N.E.2d 30 (2001) ("There is a short statute of limitations, G.L. c. 197, § 9(a), which requires creditors to bring an action against the executor or administrator within one year after the date of death of the deceased"). Because Noreen's complaint was filed nearly twenty months after the date of Joseph's death, it was properly dismissed. We agree with Noreen that the second sentence of c. 190, § 7, provides an option, in addition to adjudication, by which an illegitimate child may establish paternity following the death of a putative father. That sentence states [***8] as follows: "If a decedent has acknowledged paternity of a person born out of wedlock SSSSLa_00_ 5a or if during his lifetime or after his death a decedent has been adjudged to be the father of a person born out of wedlock that person is heir of his father." G.L. c. 190, § 7. We disagree, however, with Noreen's claim that because the administrator was on notice of the existence of evidence constituting Joseph's [**534] "acknowledgment" of paternity, n9 Noreen fulfilled the prerequisites to establishing paternity set forth in c. 190, § 7, and is entitled, without more, to share in Joseph's estate. Where the issue of paternity is contested, the additional requirement set forth in c. 190, § 7, applicable to the circumstances, namely, commencement of an action to establish paternity, must be satisfied. See, e.g., Higgins v. Ripley, 16 Mass.App.Ct. 928, 928, 450 N.E.2d 186 (1983); Doe v. Roe, 19 Mass. App.Ct. 270, 272, 473 N.E.2d 719 (1985). [***9] When, in the context of claims to inherit, the issue of paternity is uncontested, no action need be commenced and paternity may be established by stipulation of the parties that during the decedent's lifetime he acknowledged that he was the father of the person claiming a right to inherit from his estate. [*238] See Lowell v. Kowalski, 380 Mass. 663, 670, 405 N.E.2d 135 (1980) (where "it was established, based on a stipulation of the parties, that, on numerous occasions, the defendant's intestate acknowledged the paternity of the plaintiff orally and in writing"). n10 See also Paquette v. Koscotas, 12 Mass.App.Ct. 52, 53, 421 N.E.2d 483 (1981) (parties' stipulation that decedent acknowledged paternity "obviates any further inquiry by us for other evidence of acknowledgment"). 6a [***10] The court in Lowell identified three forms of evidence that could establish paternity in contested proceedings: "the father's written acknowledgment of his paternity (see for such an example, G.L. c. 273, § 15 nll ]...), his sworn testimony to the same effect, or an adjudication of paternity under G. L. c. 273." Lowell v. Kowalski, 380 Mass. at 670. The court left for later determination "the question whether, in a contested proceeding, proof of paternity may be made out in the absence of" the above described evidence. Ibid. We will assume for purposes of our discussion that the notarized statement, see note 5, supra, constitutes a "sworn statement" that would, upon admission in evidence and established to be the voluntary, knowing statement of the decedent, support an adjudication of paternity. [***11] Here, because the issue of paternity was contested, the [*239] plaintiff was bound under [**535] G.L. c. 190, § 7, either to deliver an adjudication of paternity, or to "commencef[], in a court of competent jurisdiction, an action in which the executor or administrator is a named party and in which such paternity is ultimately proved." Delivery of the adjudication or commencement of the action must occur within the one-year period provided under G.L. c. 197, § 9. There was no adjudication of paternity, nor did the complainant launch an action within a year from the date of Joseph's death to prove he was her father. n12 The claim was properly dismissed as untimely. Noreen also seeks to apply to this case the holding in Commonwealth v. Gruttner, 385 Mass. 474, 475, 4382 N.E.2d 518 (1982), |***12] that "no time bar blocks the Ta _bringing of an action to adjudicate the paternity of an illegitimate child." That decision was specific to criminal nonsupport actions brought pursuant to G.L. c. 273, § 15, against living, putative fathers, and has no : relevance to the circumstances of this case. Judgment affirmed. nl As administratrix of the estate of Joseph S. Hunter. n2 This section provides, in relevant part, as follows: "If a decedent has acknowledged paternity of a person born out of wedlock or if during his lifetime or after his death a decedent has been adjudged to be the father of a person born out of wedlock that person is heir of his father.... A person may establish paternity if, within the period provided under section nine of chapter one hundred and ninety-seven for bringing actions against executors and administrators, such person either (a) delivers to the executor or administrator an authenticated copy ofa judgment rendered by a court of competent jurisdiction during a decedent's lifetime adjudging the decedent to be the father of a person born out of wedlock, or (b) commences, in a court of competent jurisdiction, an action in which the executor or administrator is a named party and in which such paternity is ultimately proved." [***2] n3 This section provides as follows: "(a) Except as provided in this chapter, an executor or administrator shall not be held to - 8a answer to an action by a creditor of the deceased unless such action is commenced within one year after the date of death of the deceased and unless, before the expiration of such period, the process in such action has been served by delivery in hand upon such executor or administrator or service thereof accepted by him or a notice stating the name of the estate, the name and address of the creditor, the amount of the claim and the court in which the action has been brought has been filed in the proper registry of probate." n4 Noreen further claims that, even if the one-year limitation period under G.L. c. 197, § 9(a), applies, her complaint is rendered timely by application of G.L. c. 260, § 32 (new action may be brought within one year | of dismissal or "for any matter of form"), or by virtue of equitable tolling. Finally, she claims that G.L. c. 190, § 7, is unconstitutional. These arguments lack merit. In any event, we decline to "consider a claim that is asserted for the first time after judgment has been entered below." [***3] R.W. Granger & Sons v. J &S Insulation, Inc., 435 Mass. 66, 73, 754 N.E.2d 668 (2001). : ~ ome ee ee n5 The defendant's motion to dismiss was based on the asserted failure of the plaintiff "to comply with the one year statute of limitations for creditors of an estate." Attached to the plaintiff's opposition were sixteen exhibits. Among them is a document purportedly signed by Joseph and notarized on July 31, 1980, stating that "Joseph Hunter . .. does hereby acknowledge that he is the true father of the female person born in Boston, Massachusetts, on December 9, 1955, whose EEENREENE em i