Opposition Brief — A. M. P. v. C. W. M.

No. 04-152 Pp i- 2004

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IN THE

Supreme Court of the United States

A.M.P., et al.,

Petitioners,

v

CWM and ACM, by PAM, and DHM,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

MINNESOTA CouRT OF APPEALS

BRIEF IN OPPOSITION FOR RESPONDENTS

CWM, PAM, AND DHM

Of Counsel: Morris M. SHERMAN

JupitH T. YOUNGER . sraad ‘1 a

Joseph E. Wargo Anoka County oor wtenniaaied

Rie JANE F. GODFREY

Bar Association Professor

Davip R. Crossy

of Family Law So S a

UNIVERSITY OF MINNESOTA eae ose _—

285 Walter F. Mondale Hall py eomeaieag panels

229 — 19th Avenue South = _—

, | Suite 2300

Minneapolis, MN 55455 Minneapolis. MN 55402

(612) 335-1500

Attorneys for Respondents

CWM, PAM, and DHM

189506 ce

COUNSEL PRESS

(800) 274-3321 © (800) 359-6859

l

QUESTIONS PRESENTED

1. Where petitioners fail to assert any valid claim for

relief—much less a federal question—in the state-court

proceedings, does this Court lack jurisdiction to issue a writ

of certiorari?

2. Is it a denial of due process to preclude trust

beneficiaries from challenging the parent-child relationships

between their father and their half-siblings when they failed

to challenge the same relationships in an earlier trust

proceeding involving the same parties?

3. Did the Minnesota Court of Appeals correctly

determine that parent-child relationships conclusively

established for all purposes cannot be challenged?

il

LIST OF PARTIES

Petitioners are the older six of nine children of JHM’s

several marriages. Petitioners are sometimes referred to

herein as “the Older Children.”

Respondent ACM is a minor, and appears in this

litigation through PAM, his mother. DHM and CWM, sons

of JHM and PAM who have reached the age of majority, are

also Respondents. These three children of JHM and PAM

are referred to herein as “the Younger Children.”

William J. Berens (as successor to Robert J. Struyk) and

Phillip H. Martin are trustees of three trusts: the JHM 1974

Trust, the 1980 JHM Family Trust, and the 1980 SMC Trust.

They appear in this litigation in their capacities as trustees.

They are referred to herein as the “Trustees.”

By Orders of the Minnesota Court of Appeals filed on

June 25, 2003 and July 21, 2003, the parties were directed to

use initials or pseudonyms in their filings when referring to

the parties to this matter. Accordingly, the initials used in

the Minnesota appellate courts are used herein.

ll

TABLE OF CONTENTS

Questions Presented ....-.---++++eeeereerrees

List of Parties ..........cc ees c cece eee eeeeeees

Table of Contents .........0-- seer e cece eeteees

Table of Cited Authorities ........-.---+ese eee:

Relevant Authority Involved ......----+++es++5>

Statement of the Case .......--- ees eee ere cree

eee oe

B. JHM, PAM and Their Children .......---

C. The Legal Proceedings Seeking to Eliminate

the Younger Children as Trust Beneficiaries

oe a OE SE Ta Sa ses 2

Reasons for Denying the Petition .........--++:

I. Petitioners’ Demand For A Writ Of Certiorari

Should Be Denied For Lack Of Jurisdiction

By This Court. .........-.+s2sseeseees:

Il. Petitioners Have Not Been Deprived

Of Due Process And The Minnesota

Court Of Appeals’ Determination Was

yi ghes esse te eae aveneses

Page

10

iv

Contents

Page

A. Petitioners’ Failure to Assert Their

Claimed Property Interests in a Prior

Trust Proceeding Bars Them From

Now Asserting a Deprivation of Due

PO eek eae hee aae a Chee ees 10

B. Petitioners’ Status as Trust Beneficiaries

Gives Them No Rights With Respect to

Any Parentage Determination. ....... 11

SNE od ok waicea he bee aa kan eae kale More 17

TABLE OF CITED AUTHORITIES

Cases:

Adams v. Robertson, 520 U.S. 83 (1997) ...---+-

Beard v. Vincent, 141 So. 862 (La. 1932) ...-----

Byrd v. The Travelers Ins. Co., 275 S.W.2d 861

(Tex. Civ. App. 1955) ....-----e eee eeeecees

Cardinale v. Louisiana, 394 U.S. 437 (1969) .....

Clement v. Merchants Nat’l Bank of Mobile,

493 So. 2d 1350 (Ala. 1986) ...------+-+++>:

Deatherage v. Phipps, 441 P.2d 1020 (Okla. Sup. Ct.

SOT) cous snk wees eas Aner eet eee

District of Columbia Court of Appeals v. Feldman,

460 U.S. 462 (1983) .... cece reece ree eteeee

Exxon Corp. v. Eagerton, 462 U.S. 176 (1983) ....

Fahrendorff by & through Fahrendorff v. North

Homes, 597 N.W.2d 905 (Minn. 1999) ....----

Favre v. Celotex Co., 139 So. 904 (La. Ct. App.

S| ee eT ee Coa Laer io,

Gonzales v. Pacific Greyhound Lines, 214 P.2d 809

ah, POD os 5 ccc ands cee arecdee eee tes

Page

15

14

15

15

vi

Lited Aatkhorittes

Page

Hanson v. Denckla, 357 U.S. 235 (1958) ........ 9

Hill v. California, 401 U.S. 797 (1971) .......... 7

In re Paternity of Vainio, 943 P.2d 1282 (Mont.

ff ar are era re yn eT gre 4

In re Saioy, 10 So. 872 (La. 1892) .............. 14

In re Trust Created by Agreement Dated Dec. 20,

1961, 765 A.2d 746 (N.J.), cert. denied, 534 U.S.

DCRR ks 540-0 swaued cenencaeeta erence 14, 15

In re Trust Under Will of Holden, 291 N.W. 104

FEE vi vv cnacea bee Ghee eee eee 11

In the Matter of Estate of Lamey, 689 N.E.2d 1265

eee fs eee eee eer Terry er er 14

In the Matter of Trusts Created by Hormel,

504 N.W.2d 505 (Minn. Ct. App. 1993) ....... 11

In the Matter of the Trusteeship of the Trust Created

Under Trust Agreement dated Dec. 31, 1974, 674

N.W.2d 222 (Minn. Ct. App. 2004) ........... a, Be

Johnson y. Johnson, 395 So. 2d 640 (Fla. Dist. Ct.

Se: DOE hb ikea chee chv seen 15

Knauer v. Barnett, 360 So. 2d 399 (Fla. 1978) ....13, 14

Peer” eee

oo tte ~~. = a 7 _ +=

SBS LBRO) tie. SE ——————————

Vil

Cited Authorities

Page

Michael H. v. Gerald D., 491 U.S. 110 (1989) ....

12, 13, 14, 15

te eter te te il ey ee Oe LO Oe UR

Radio Station WOW y. Johnson, 326 U.S. 120

SUE vc Lond cso Steve ee rey aenere resent ey. 9

Speight v. Wheeler, 310 So. 2d 716 (Miss. 1974)... 15

State v. Schleicher, 672 N.W.2d 550 (Mian. 2003) ... 9

Theis v. City of Miami, 564 So. 2d 117 (Fla. 1990)

ee eer rer yr ee ee ae 14

Weir y. Ferreira, No. F026210 1997 Cal. App. LEXIS

1046 (Cal. Ct. App. Dec. 17, dj 14

Vili

Cited Authorities

Page

United States Constitution:

PE I oko. ku hws & sae Seka ee eany xs ]

Statutes:

+ 218 fo Bs | ree rrr rere fekeaes 7

, t. 2 t+ were rere rye er Tr errs 13

oe Sk | Pere eerie Te TET ere 13

Mii. Diet. 6 257.GG, GUE. Fon cece snes e dis 13

Miisma. Stet: 8 25767, OE. 2S svc cee cae eeaens 13

ee ee) 8 er eee reer rT re res 4,5,7

Rules:

Minnesota Rules of Civil Procedure 24.04 ....... 9

— eek eS Pee err errr err er Te Te eee 6

l

RELEVANT AUTHORITY INVOLVED

Petitioners cite the due-process provision of the United

States Constitution amendment XIV as the sole predicate for

their Petition. However, as discussed below, Petitioners failed

to properly assert any claim on their own behalf for relief in the

Minnesota state-court proceedings; neither did they assert a

proper due-process claim.

STATEMENT OF THE CASE

A. The Trusts

The trusts (“Trusts”) created by JHM at issue here are:

(1) the JHM 1974 Trust dated December 31, 1974 (“1974

Trust”); (2) the 1980 JHM Family Trust dated December 30,

1980 (“1980 JHM Trust”); and (3) the 1980 SMC, KWM and

LMS Trust dated December 30, 1980 (“1980 SMC Trust’”).'

These latter two trusts are also collectively referred to herein as

the “1980 Trusts.” The Trusts all left the class of beneficiaries

open to those born after the Trusts were established. Minnesota

is the situs of the Trusts.

The principal beneficiaries of the 1974 Trust are JHM’s

“issue.” The 1974 Trust defines “issue” as:

[AJll persons who are descended from the person

referred to, eitiier by legitimate birth to or legal

adoption by him.

The 1980 JHM Trust names JHM’s grandchildren as the

primary beneficiaries. The primary beneficiaries of the 1980

1. It is undisputed that JHM funded the 1980 SMC Trust and

thus is the trust settlor. (Mem. in Supp. of Mot. to Dismiss dated

Feb. 6, 2002, at 8-10.)

2

SMC Trust are JHM’s children. In both 1980 Trusts, a “child”

or “grandchild” is defined as “issue.” The 1980 Trusts contain

the identical definition of “issue”:

“Issue” means all persons who are lineal

descendants of the person whose issue are referred

to (including legally adopted lineal descendants

and including lineal descendants in gestation, but

not including step-children and foster-children of

any generation) except (i) persons who become

descendants by legal adoption after attaining the

age of 18 years and their descendants and

(11) illegitimate descendants and their descendants.

B. JHM, PAM and Their Children

The Younger Children were born in Florida during JHM

and PAM’s marriage, which began in 1979 and ended in 1991.

JHM is identified as the father of the children on their

respective birth certificates. The Younger Children have lived

in Florida since their birth, as have JHM and PAM.

JHM has six Older Children (Petitioners) from two

earlier marriages. Three of the Older Children—JM, DDM,

and KMR—are trustees of the two 1980 Trusts. JHM is one

of several heirs to a large, closely-held company fortune. The

remaining Trustees of the trusts, who commenced this action

in Minnesota state court, are members of the company’s law

firm.

The Younger Children’s parentage was first addressed

in 1986, when JHM filed for divorce from PAM. In his

Divorce Petition, JHM denied being the father of DHM

and CWM. JHM later dismissed the divorce action, and

pi

3

stipulated, in the dismissal filed with the Florida Court, that

“with respect to the issues raised by him relative to the

paternity of [CWM and DHM], he [JHM] hereby voluntarily

dismisses his petition with prejudice.”? (Emphasis in

original.) At least two of the Petitioners had knowledge of

this parentage issue in or about 1986. (Resp. Ct. of Appeals

App. 63.) JHM and PAM continued their marriage for an

additional five years, during which the youngest child, ACM,

was born.

A Cin ADSI ih! OANA IB NET CA a GRE A OADM Ae

In 1989, the trustees of another family trust, created by

JHM’s grandmother, brought a petition in Minnesota state

court seeking authorization to distribute many millions of

dollars to all of JHM’s “children,” defined inter alia in the

trust as “all legal issue”’. In this petition, the Younger Children

(along with the Older Children) are identified as JHM’s

children, and as such, eligible to receive trust funds.

Petitioners all received notice of this petition; none of them

made an appearance or filed an objection in the proceeding.

The district court found that the Younger Children are JHM’s

children (i.e., his legal issue), and thus beneficiaries of the

trust.

JHM divorced PAM in 1991. In the divorce Settlement

Agreement, incorporated within an adjudicated Judgment and

Decree in Florida, JHM acknowledged that the Younger

Children are his children, born of his marriage to PAM. The

Settlement Agreement and Judgment and Decree conclusively

resolved any issue of parentage of all the Younger Children,

to the extent any such issue remained. JHM not only

acknowledged the Younger Children as his and agreed to

support them, but also specifically agreed that the Younger

2. Petitioners fail to mention in their statement of facts that the

dismissal was with prejudice.

4

Children would share equally with his other children in any

testamentary disposition of his assets, including assets held

in trust for his benefit. He did so with knowledge they are

not his natural children. Contrary to Petitioners’ statement

of facts, the Settlement Agreement was not simply an

agreement for support—it was an adjudication of parentage

under Florida law.

C. The Legal Proceedings Seeking to Eliminate the

Younger Children as Trust Beneficiaries.

In 2000, at least nine years after the Younger Children’s

parentage had been finally and conclusively established for

all purposes under Florida law, JHM was declared iegally

incapacitated in an action started by two of the Petitioners,

KMR (a trustee of the 1980 Trusts) and SMK. Less than three

months after JHM was declared legally incapacitated, the

Trustees, at the behest of Petitioners, brought an action in

Minnesota state district court, purportedly under Minn. Stat.

§ 501B.16, in which they asked the court to interpret the

Trusts and determine the beneficiaries thereof.’

The Trustees moved for partial summary judgment

construing the Trusts as limiting beneficiaries to JHM’s

biological children. They also asked the Court to order blood

or saliva tests to resolve the question of the “parentage” of

the Younger Children. Respondents moved to dismiss the

petition because the Trustees lack standing to challenge the

parentage of the Younger Children, which has long been

established in Florida, their domicile. In the alternative,

3. Section 501B.16 permits a trustee or other interested parties

to petition the court to, among other things, interpret a trust and

determine the persons having an interest in the trust’s income and

principal. Minn. Stat. § 501B.16 (2002).

isthe al ne eee

5

Respondents sought summary judgment based on the

language of the Trusts, which does not require biology as a

criteria for beneficiary status. The Older Children, as

interested parties, participated in the proceedings but never

sought relief themselves. They simply supported the Trustees’

petition.

The district court granted the Trustees’ Motion for Partial

Summary Judgment, finding that beneficiaries need to be

biological descendants, and denied Respondents’ Motion to

Dismiss, finding the Trustees have standing to challenge the

paternity of the Younger Children. The district court

subsequently ruled that the Younger Children are not the

biological descendants of JHM unless they submit to DNA

testing to establish their biological connection to him.

Recognizing this action as a paternity challenge,* the

Minnesota Court of Appeals reversed the district court’s grant

of partial summary judgment to the Trustees, and ordered

entry of summary judgment in favor of the Respondents. The

court held that because the Younger Children’s paternity had

been conclusively determined under applicable parentage

laws, the Trustees could not collaterally challenge the

determination under the guise of seeking trust instruction

under Minn. Stat. § 501B.16. The Court of Appeals explained

that because the presumption of the Younger Children’s

parentage is now irrebuttable under both Florida and

Minnesota law, the Younger Children are JHM’s biological

descendants as a matter of law.

4. “As the filings in this matter make clear, the challenge to the

younger children’s paternity is the kernel of the trustees’ petition.”

In the Matter of the Trusteeship of the Trust Created Under Trust

Agreement dated Dec. 31, 1974 (“12/31/74 Trust Case”), 674 N.W.2d

222, 228 (Minn. Ct. App. 2004).

6

The Trustees filed a petition for further review of the

Court of Appeals’ decision with the Minnesota Supreme

Court. Petitioners also filed such a petition, despite not having

filed a separate petition at the district court level or taking

any action before the lower courts other than to support the

Trustees’ positions. The Minnesota Supreme Court denied

both petitions for further review.

REASONS FOR DENYING THE PETITION

“A petition for a writ of certiorari will be granted only

for compelling reasons.” Sup. Ct. R. 10. Petitioners present

no such reasons for this Court’s review of the decision below.

Indeed, the decision below does not conflict with a decision

of this Court, any Court of Appeals, or any other state or

federal court. It raises no question worthy of review by this

Court. Instead, the decision is consistent with long-

established precedent uniformly noted with approval by this

Court and numerous other courts nationwide. That precedent

protects the conclusive presumption of parentage for children

born in wedlock from collateral attack; it fosters substantive

social policies of protecting the integrity of the family and

promoting legitimacy.

Moreover, Petitioners, who addressed only issues and

rights asserted by the Trustees in the trial court and the

Minnesota Court of Appeals, have preserved no issue for

review by this Court. Further, no proper federal due-process

challenge was made by Petitioners below. Even if one had

been made, there is no valid basis on which to justify a

challenge to the conclusively established legitimacy and

parentage of the Younger Children.

7

I. PETITIONERS’ DEMAND FOR A WRIT OF

CERTIORARI SHOULD BE DENIED FOR LACK

OF JURISDICTION BY THiS COURT.

In order for this Court to have jurisdiction to issue a

writ of certiorari, the validity of a state statute must have

been “drawn into question” on a federal ground, or a federal

right must have been “specifically set up or claimed.”

28 U.S.C. § 1257(a) (1993). The failure to properly raise a

federal question in the state court action necessarily leaves

the Supreme Court without jurisdiction. See Hill v.

California, 401 U.S. 797, 805 (1971); District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 482 n.16 (1983)

(the Court will not “decide federal constitutional issues raised

here for the first time on review of state court decisions”)

(quoting Cardinale v. Louisiana, 394 U.S. 437, 438 (1969)).

Here, Petitioners failed to properly raise any question,

much less a federal question, on their own behalf before the

Minnesota state courts. The Minnesota Court of Appeals

decision for which Petitioners demand a writ of certiorari

results from a petition filed by the Trustees pursuant to Minn.

Stat. § 501B.16, which permits trustees to petition the court

to determine the persons having an interest in the trust’s

income and principal. While they participated in the

proceeding instituted by the Trustees, Petitioners never

sought relief on their own behalf. Instead, before both

the district court and Court of Appeals, Petitioners argued

only on behalf of the Trustees’ position.* As a result,

5. Had Petitioners commenced their own proceeding or sought

relief on their own behalf, they would have been barred by collateral

estoppel due to the 1989 judicial determination that the Younger

Children are JHM’s legal issue. See discussion, infra.

8

Petitioners have no basis upon which to seek relief from

this Court.°

Petitioners assert that they raised an issue in the

Minnesota Court of Appeals proceeding as to whether their

own due-process rights would be violated by a determination

that JHM’s parentage of the Younger Children is conclusive.

Pet. at 5 n.8. They did not. Instead, the short discussion

regarding “due process” in Petitioners’ brief before the Court

of Appeals dealt only with the Trustees ‘alleged due-process

rights; Petitioners failed to raise any due-process claim on

their own behalf. (Pets’ Ct. of App. Br. at 15-18.)

After the Trustees lost at the Minnesota Court of Appeals,

Petitioners, for the first time, attempted to raise the issue

of “due-process” on their own behalf. In a three-sentence

argument contained in their Petition for Further Review filed

with the Minnesota Supreme Court, they said:

On the other hand, Minn. Stat. § 501B.16 does

accord standing to petition the court to determine or

identify beneficiaries. Due process requires that

those whose rights are to be affected be afforded an

opportunity to be heard. Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 542 (1985); Barton

Contracting Co., Inc. v. City of Afton, 268 N.W.2d

712, 716 (Minn. 1978). The Court of Appeals,

however, declines to afford such right to the Trustees

and to [Petitioners].

(Pet. for Further Rev. at 5.) Because Petitioners chose not to

seek independent relief in the district court or Court of

6. Petitioners’ continued participation in this action, if any,

is dependent upon the Trustees’ action continuing. While the

Trustees have demanded a writ of certiorari, their demand is without

merit and should be denied. (See Response to Petition for Certiorari,

No. 04-97.)

9

Appeals, they could not raise their own alleged due-process

issues before the Minnesota Supreme Court. See Fahrendorff

by & through Fahrendorff v. North Homes, 597 N.W.2d 905,

909 (Minn. 1999).

In any event, raising a federal question for the first time in

a petition for review with the highest state court is generally

insufficient unless the court actually entertains the petition and

expressly decides the question. See Adams v. Robertson, 520

U.S. 83, 89 n.3 (1997); Hanson v. Denckla, 357 U.S. 235, 243-

44 (1958); Radio Station WOW v. Johnson, 326 U.S. 120, 128

(1945). Here, the Minnesota Supreme Court denied Petitioners’

request for further review, and would not have entertained

Petitioners’ belated constitutional challenge on their own behalf

even if it had accepted review. State v. Schleicher, 672 N.W.2d

550, 555 (Minn. 2003) (under Minnesota law, a party cannot

challenge the constitutionality of a statute for the first time on

appeal to the Minnesota Supreme Court). Because the Minnesota

Supreme Court would not have considered Petitioners’

constitutional arguments, this Court lacks jurisdiction to do so.

See Exxon Corp. v. Eagerton, 462 U.S. 176, 181 n.3 (1983)

(when constitutional issue is not decided below in a manner

sufficient to bring the matter before a state appellate court, the

U.S. Supreme Court lacks jurisdiction to consider the federal

question). Consequently, the petition for a writ of certiorari

should be denied.’

7. Indeed, if Petitioners had intended a constitutional challenge

to the Minnesota Parentage Act, Rule 24.04 of the Minnesota Rules

of Civil Procedure mandated that Petitioners notify the attorney

general that the constitutionality of the Parentage Act was being drawn

into question within such time as to afford the attorney general an

opportunity to intervene. Petitioners did not provide the attorney

general with notice of a constitutional challenge, calling into greater

question whether they made such a constitutional challenge—

as opposed to rhetorical flourish.

10

Il. PETITIONERS HAVE NOT BEEN DEPRIVED

OF DUE PROCESS AND THE MINNESOTA

COURT OF APPEALS’ DETERMINATION WAS

CORRECT.

A. Petitioners’ Failure to Assert Their Claimed

Property Interests in a Prior Trust Proceeding

Bars Them From Now Asserting a Deprivation

of Due Process.

Even if there were no fatal jurisdictional flaws in

Petitioners’ petition, there would be no substantive basis upon

which to grant their petition. Petitioners assert that they have

been deprived of due process because they had no opportunity

to be heard with respect to the Younger Children’s status as

JHM’s legitimate children. This is wrong. Assuming, contrary

to law, that trust beneficiaries have standing to challenge the

percentage of children born in wedlock, Petitioners, who have

been on notice of the facts underlying the Trustees’ claims

since at least 1986,* had the opportunity to mount a judicial

challenge to the Younger Children’s status as JHM’s

legitimate children in a 1989 proceeding. They elected not

to do so, a fact confirmed by the Court of Appeals in its

decision:

In 1989, the trustees of a fourth trust, created for

the benefit of JHM and not at issue here, filed a

petition in Minnesota district court seeking

authorization to distribute trust assets to JHM’s

“children,” a beneficiary class defined in the trust

instrument as “all [of JHM’s] legal issue and

adopted children.” The petition, which was

considered without objection from the older

8. At least two of the Older Children were well aware at the

time that JHM had previously denied paternity of those Younger

Children then in existence.

11

children, identified the younger children as JHM’s

and therefore eligible to receive trust distributions.

In granting the petition, the district court

specifically found that [the Younger Children]

were JHM’s children.

12/31/74 Trust Case, 674 N.W.2d at 226 (emphasis added).

Had the district court petition been filed by Petitioners as

opposed to the Trustees—who were not parties to the 1989

proceeding—Petitioners would have been bound under the

doctrine of collateral estoppel by the determination in the

prior proceedings that the Younger Children are JHM’s legal

issue and thus his lineal descendants. See Jn re Trust Under

Will of Holden, 291 N.W. 104, 107 (Minn. 1940). To the extent

that the Older Children are now trying independently to seek

relief that was not sought in the district court or the Court

of Appeals, their claims remain barred by collateral estoppel.

See In the Matter of Trusts Created by Hormel, 504 N.W.2d

505, 509 (Minn. Ct. App. 1993).

B. Petitioners’ Status as Trust Beneficiaries Gives

Them No Rights With Respect to Any Parentage

Determination.

Even if, contrary to law and common sense, Petitioners

had been given the right to participate in the Florida divorce

proceedings that conclusively determined JHM’s parentage

of the Younger Children, Petitioners would have had no right

as trust beneficiaries to prevent JHM from acknowledging

his parentage of the Younger Children. Under the Trusts,

JHM retained the right to add more beneficiaries by having

more children—conceiving them, acknowledging them, or

12

adopting them. Both acknowledgment and adoption are

legislatively sanctioned methods of establishing a parent-

child relationship under Florida and Minnesota law.

Petitioners’ claim that their due-process rights have been

violated by JHM’s exercise of this unfettered right to add

beneficiaries pursuant to a state-sanctioned process? is

patently unfounded. This Court has rejected arguments like

Petitioners’, holding that even a biological father has no due-

process right to challenge a conclusive presumption of

paternity arising from a state parentage act. Michael H. v.

Gerald D., 491 U.S. 110, 121 (1989).

In Michael H., this Court confirmed that the United States

Constitution does not bar a state from establishing a

substantive rule of law that a child born within wedlock

is the lawful child of the husband, and, under such

circumstances, from deeming paternity not to be an

adjudicatory fact subject to litigation other than as expressly

authorized by statute:

While §621 [California paternity statute] is

phrased in terms of a presumption, that rule of

evidence is the implementation of a substantive

rule of law. California declares it to be, except in

limited circumstances, irrelevant for paternity

purposes whether a child conceived during and

born into, an existing marriage was begotten

by someone other than the husband.... As the

Court of Appeals phrased it “The conclusive

presumption is actually a substantive rule of law

based upon a determination by the Legislature as

a matter of overriding social policy, that given a

certain relationship between the husband and wife,

9. E.g. the Parentage Act.

13

the husband is to be held responsible for the child,

and that the integrity of the family should not be

impugned.” Of course the conclusive presumption

not only expresses the State’s substantive policy

but also furthers it, excluding inquiries inte the

child’s paternity that would otherwise be

destructive of family integrity and privacy.

Michael H., 491 U.S. at 119-20 (citation omitted).

Florida law, which governs the Younger Children’s legal

status, implements substantive polices protecting the integrity

of families by making determinations of parentage conclusive

for all purposes. Knauer v. Barnett, 360 So. 2d 399, 406

(Fla. 1978); Fla. Stat. § 742.091 (2002); Fla. Stat. § 742.011

(2002). Here, the Minnesota Court of Appeals recognized

that the Younger Children’s parentage and legitimacy had

been conclusively determined in Florida,'® and that the

Minnesota Parentage Act extends full faith and credit to

such determinations. Minn. Stat. § 257.67, subd. 1 (2002);

see also Minn. Stat. § 257.66, subd. 1 (2002) (adjudications

of parentage are “determinative for all purposes”) (emphasis

added). The Court of Appeals’ holding that Petitioners are

thus barred from challenging the Younger Children’s

parentage is entirely consistent with Michael H.

10. Ina transparent effort to minimize the determinative effects

of the 1991 divorce proceedings, Petitioners improperly refer to the

Final Judgment of Dissolution of Marriage—by which JHM judicially

acknowledged the Younger Children as his and agreed that they were

to share equally with his other children in any testamentary

disposition of his assets (Resp. Ct. of Appeals App. 67-72)—as a

mere stipulation regarding “child support obligations.” (Pet. at 3.)

14

Petitioners’ attack on Michael H. is unavailing.'' Courts in

many states have recognized the pitfalls in the outcome urged

by Petitioners and addressed by Michael H., and, therefore,

have precluded parentage challenges by persons other than

the child, the mother, the father, or the putative father.'?

11. Petitioners’ attempt to distinguish Michael H. on the

purported grounds that there were no third-party property interests

at stake does not withstand scrutiny. Any determination of a parent-

child relationship will necessarily affect property interests of third

parties by determining the child’s rights to inherit property and to

receive benefits. Under Florida and Minnesota law, such third parties

do not have standing to challenge a determination of parentage.

12. See In re Trust Created by Agreement Dated Dec. 20, 1961,

765 A.2d 746, 758 (N.J.), cert. denied, 534 U.S. 889 (2001) (prior

adjudication of child-parent relationship bars third-party challenge

to parentage, based upon language and policy of New Jersey’s

Parentage Act); Knauer v. Barnett, 360 So. 2d 399, 405 (Fla. 1978)

(right to dispute legitimacy of child born in wedlock limited

to husband and wife); Weir v. Ferreira, No. F026210 1997 Cal. App.

LEXIS 1046 (Cal. Ct. App. Dec. 17, 1997) (trustees seeking to

determine “issue” of trusts were barred from relitigation of question

of child’s parentage); Jn the Matter of Estate of Lamey, 689 N.E.2d

1265, 1268-69 (Ind. Ct. App. 1997) (child’s uncle precluded from

attempts to “disestablish” child’s paternity for purposes of

determining heirs); Deatherage v. Phipps, 441 P.2d 1020, 1023 (Okla.

Sup. Ct. 1967) (where neither husband or wife disputed legitimacy

of child born in wedlock, all others were barred from doing so);

Byrd v. The Travelers Ins. Co., 275 S.W.2d 861, 863-64 (Tex. Civ.

App. 1955) (“If the father renounces the right to bastardize his alleged

son... it is extinguished and can never thereafter be exercised by

anyone”); Jn re Paternity of Vainio, 943 P.2d 1282, 1285 (Mont. 1997)

(siblings lacked standing); Jn re Saloy, 10 So. 872, 876 (La. 1892)

(if father does not dispute paternity, “the door is forever closed” to

others); Theis v. City of Miami, 564 So. 2d 117, 119 (Fla. 1990)

(employer precluded from challenging legitimacy of child born in

(Cont'd)

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15

For example, the New Jersey Supreme Court, in a case with

facts very similar to those here (and as to which this Court

denied certiorari), confirmed that beneficiaries of trust

property—such as Petitioners here—may not seek to defeat

established paternity determinations of their siblings in order

to increase their proportionate share of trust assets. /n re Trust

Created by Agreement Dated Dec. 20, 1961, 765 A.2d 746,

758-59 (N.J.), cert. denied, 534 U.S. 889 (2001). The New

Jersey decision, citing Michael H., rejected the argument that

such a rule of law violates the beneficiaries’ due-process

rights, and noted that the alleged protected interest

(a purported economic right to become eligible for an

unspecified share of trust proceeds) occupies a lower place

in the hierarchy of rights when compared to the putative

father’s right to a parent-child relationship at issue in Michael

H. In re Trust Created by Agreement Dated Dec. 20, 1961,

765 A.2d at 758-59. Petitioners have offered no compelling

(Cont’d)

wedlock); Gonzales v. Pacific Greyhound Lines, 214 P.2d 809, 811

(Cal. 1950) (employer of decedent-father, collateral heirs and non-

relative beneficiaries cannot question legitimacy of child born in

wedlock); Favre v. Celotex Co., 139 So. 904, 905 (La. Ct. App. 1932)

(employer of decedent-father denied standing to dispute parentage

of child born in wedlock); Beard v. Vincent, 141 So. 862, 863-64

(La. 1932) (collateral heirs of decedent barred from challenging

parentage of children born during marriage); Clement v. Merchants

Nat'l Bank of Mobile, 493 So. 2d 1350, 1352 n.2 (Ala. 1986) (parties

questioned for not raising standing issues for collateral relative);

Speight v. Wheeler, 310 So. 2d 716, 719 (Miss. 1974) (heirs of

decedent precluding from attacking legitimacy); Johnson v. Johnson,

395 So. 2d 640, 641 (Fla. Dist. Ct. App. 1981) (relitigation of paternity

issue resolved in divorce proceedings would be “chaotic” and to

require children and former wives to submit to blood tests would be

humiliating).

16

reasons why a contrary result should be reached here even if

the issue had been properly raised below."

13. Petitioners argue that they have been deprived of their due-

process right to challenge the legitimacy of the Younger Children

and that such right is unaffected by various conclusive, judicial

adjudications of parentage. This claim fails for two reasons. First,

the Younger Children are JHM’s legitimate children as a matter of”

law in Florida and Minnesota (by virtue of being born during

wedlock). (See Resp. Ct. of Appeals Br. at 11, 25-30.) Petitioners

have never offered any competent evidence that JHM intended any

meaning for “legitimate” other than its accepted meaning under

Florida and Minnesota law. And second, Petitioners conceded both

the Younger Children’s legitimacy and paternity during the state-court

proceedings. See Pet. Ct. of Appeals Br. at 9 (“The legitimacy of

Claimants . . . cannot override the fact that the Trusts require that,

with the exception ef legal adoption, the children must be descended

in JHM’s bloodline.”); Resp. Ct. of Appeals App. 222 (transcript of

Older Children’s counsel: “paternity, as far as I can tell, is

established.”). There is simply no basis for Petitioners’ due process

claims based upon “legitimacy.” The argument was never made

below; if it had, it would have been found totally without merit.

17

CONCLUSION

For the foregoing reasons, Respondents respectfully urge

the Court to deny the Petition for Writ of Certiorari.

Of Counsel:

JuprtH T. YOUNGER

Joseph E. Wargo Anoka County

Bar Association Professor

of Family Law

UNIVERSITY OF MINNESOTA

285 Walter F. Mondale Hall

229 — 19th Avenue South

Minneapolis, MN 55455

(612) 625-5844

Respectfully submitted,

Morris M. SHERMAN

Counsel of Record

Rosert L. DEMay

JANE F. GODFREY

Davip R. CrosBy

LEONARD, STREET

AND DEINARD

PROFESSIONAL ASSOCIATION

150 South Fifth Street

Suite 2300

Minneapolis, MN 55402

(612) 335-1500

Attorneys for Respondents

CWM, PAM, and DHM